BROADCASTING (NATIONAL METROPOLITAN RADIO PLAN) ACT 1988 No. 147 of 1988 - SECT 4
BROADCASTING (NATIONAL METROPOLITAN RADIO PLAN) ACT 1988 No. 147 of 1988 - SECT 4
4. Before Division 2 of Part IIIB of the Principal Act the following Division
is inserted: "Division 1A-Conversion of AM commercial radio licences to FM as
part of the
National Metropolitan Radio Plan National Metropolitan Radio Plan objectives
"89DAA. The objectives of this Division are:
(a) to convert to FM 2 AM commercial radio licences in each large city or
town;
(b) to allow the determination of which licences are to be converted to be
made on the basis of competitive bids; and
(c) to allow a successful bid to be satisfied in part by the transfer to
the Commonwealth of transmission facilities to be used for:
(i) radio services for the print handicapped; or
(ii) Parliamentary broadcasts. The Minister may publish a notice
inviting applications for conversion to FM
"89DAB. (1) The Minister may publish a notice in the Gazette that invites
licensees who hold AM commercial radio licences in a particular large city or
town to lodge applications with the Tender Board for conversion of their
licences to FM.
"(2) The notice shall:
(a) specify whether one FM frequency or 2 FM frequencies are to be
allocated pursuant to the notice;
(b) set out an outline of the new technical conditions proposed for that
frequency or each of those frequencies;
(c) specify the period within which applications must be lodged;
(d) specify the address at which applications must be lodged;
(e) inform the licensees of the requirements imposed by section 89DAE as
to the form and content of an application and the material to
accompany an application;
(f) specify the amount of the deposit that must be paid to the
Commonwealth in relation to an application;
(g) specify any things that will need to be done by a licensee before an
application is lodged;
(h) specify the minimum technical requirements that will need to be met
before transmission equipment is accepted as technically adequate;
(j) specify the principles according to which the Secretary is to decide
whether an interest in a transmission site is acceptable;
(k) specify the principles according to which the value of transmission
facilities is to be assessed;
(m) inform the licensees that the Minister will determine an amount as an
undisclosed reserve and that a licence will be converted to FM only if
the licensee's bid is at least equal to that amount; and
(n) inform the licensees of the things that will need to be done by a
licensee who is offered FM conversion before the licensee's licence is
converted to FM.
"(3) The period specified under paragraph (2) (c) shall end not less than 90
days after the day on which the notice is published in the Gazette.
"(4) In specifying principles under paragraph (2) (k), the Minister shall
ensure that the value of transmission sites is to be assessed having regard
not only to the current use of the sites but also to other uses.
"(5) Without limiting subsection (2) in any way, the matters that may be
specified under paragraph (2) (g) include the following:
(a) a condition that the licensee must, before the end of a period
specified in the notice, notify the Secretary of the transmission
facilities that the licensee proposes to transfer to the Commonwealth
in part satisfaction of the licensee's bid, if successful;
(b) a condition that the licensee must allow officers of the Department
reasonable opportunity to inspect the transmission equipment to assess
its technical adequacy and to assess its value;
(c) a condition that the licensee must allow officers of the Australian
Valuation Office reasonable opportunity to inspect the transmission
site or sites to assess the value of the site or sites. Application of
the principles etc. specified in a section 89DAB notice
"89DAC. (1) Officers of the Department and the Secretary shall, in assessing
the technical adequacy of transmission equipment, apply the requirements
specified under paragraph 89DAB (2) (h).
"(2) The Secretary shall, in deciding whether an interest in a transmission
site is acceptable, apply the principles specified under paragraph 89DAB (2)
(j).
"(3) Officers of the Department, officers of the Australian Valuation Office,
arbitrators and the Secretary shall, in assessing the value of transmission
facilities, apply the principles specified under paragraph 89DAB (2) (k).
Extension of the period for lodging applications
"89DAD. (1) The Minister may, by notice published in the Gazette, extend or
further extend the period specified under paragraph 89DAB (2) (c).
"(2) An extension of the period specified under paragraph 89DAB (2) (c) must
be made at least 14 days before the end of that period.
"(3) A further extension of the period specified under paragraph 89DAB (2) (c)
must be made at least 14 days before the end of that period as previously
extended.
"(4) There may be more than one further extension under subsection (1) of the
period specified under paragraph 89DAB (2) (c).
"(5) Where the period specified under paragraph 89DAB (2) (c) is extended or
further extended, a reference in this Division (other than in this section) to
the period specified under that paragraph is to be read as a reference to that
period as extended or further extended. Applications for conversion to FM
"89DAE. (1) Where the Minister publishes a section 89DAB notice in relation to
a city or town, a licensee who holds an AM commercial radio licence in that
city or town may lodge with the Tender Board an application for conversion of
the licensee's licence to FM.
"(2) An application must:
(a) be made in the form approved by the Minister;
(b) be lodged at the address specified under paragraph 89DAB (2) (d)
within the period specified under paragraph 89DAB (2) (c);
(c) be accompanied by a sealed envelope that contains a written statement
of the amount of the licensee's bid for conversion of the licensee's
licence to FM; (d) be accompanied by either:
(i) a written statement by the Secretary approving the technical
adequacy of the transmission equipment that the licensee
proposes to transfer to the Commonwealth in part satisfaction
of the licensee's bid, if successful; or
(ii) a written statement by the Secretary approving the technical
adequacy of that equipment subject to the licensee making the
improvements specified in the statement;
(e) be accompanied by a written statement by the Secretary that the
interest in each transmission site that the licensee proposes to make
available to the Commonwealth is acceptable; and
(f) be accompanied by either:
(i) a written statement by the Secretary agreeing to a specified
amount as:
(A) the value of the transmission facilities that the
licensee proposes to transfer to the Commonwealth in part
satisfaction of the licensee's bid, if successful; or
(B) if the application is accompanied by a statement of the
kind referred to in subparagraph (d) (ii)-the value of
those facilities with the improvements specified in that
statement; or
(ii) a written statement by an arbitrator determining an amount as:
(A) the value of those facilities; or
(B) if the application is accompanied by a statement of the
kind referred to in subparagraph (d) (ii)-the value of
those facilities with the improvements specified in that
statement.
"(3) The applicant must have done the things specified under paragraph 89DAB
(2) (g) before the application is lodged.
"(4) The envelope containing the licensee's bid must have written on it:
(a) the licensee's name;
(b) the name of the city or town concerned;
(c) the word 'bid'; and
(d) an identification of the date of publication of the section 89DAB
notice in response to which the application is lodged; but must not
have written on it anything that indicates the amount of the
licensee's bid.
"(5) A licensee's bid must be expressed as a single amount in whole dollars or
in whole dollars and cents.
"(6) The amount of a licensee's bid must exceed the transmission facilities
value in relation to the licensee's application.
"(7) The transmission facilities value in relation to a licensee's application
is to be included in the amount of the licensee's bid.
"(8) The licensee must have paid the Commonwealth a deposit of the amount
specified under paragraph 89DAB (2) (f) before the end of the period specified
under paragraph 89DAB (2) (c).
"(9) In deciding whether to issue a statement of the kind referred to in
paragraph (2) (f), the Secretary shall act with the advice of the Australian
Valuation Office on the value of a transmission site. Establishment of the
Tender Board
"89DAF. (1) The Secretary shall, by determination in writing, establish a
Tender Board to process applications lodged in response to section 89DAB
notices.
"(2) The Secretary may, in writing, appoint a person who is an officer of the
Department as a member of the Tender Board.
"(3) The Secretary shall, in writing, designate one of the members as
Chairperson of the Tender Board. Determination of the reserve
"89DAG. Where the Minister publishes a section 89DAB notice, the Minister
shall, before the end of the period specified under paragraph 89DAB (2) (c),
determine the amount of the reserve that is to apply to conversions of
licences to FM pursuant to the notice and notify the Chairperson of the Tender
Board of the determination. Processing applications for conversion to FM
"89DAH. (1) Where:
(a) a section 89DAB notice is published; and
(b) the period for lodging applications in response to the notice ends;
the Tender Board shall initially assess the applications lodged in
response to the notice without opening the envelopes that appear to
contain the licensees' bids.
"(2) The Tender Board shall then reject any application that the Tender Board
is satisfied, upon that assessment, is not in accordance with section 89DAE.
"(3) The Tender Board shall then open the envelopes that appear to contain the
remaining licensee's bids and reject:
(a) any application that is not accompanied by a bid that is in accordance
with section 89DAE; and
(b) any application by a licensee whose bid is below the reserve
determined by the Minister.
"(4) The Tender Board shall then prepare a list that sets out the names of the
remaining licensees and the amounts of their bids in descending order
according to the amounts of their bids.
"(5) Where the bids of 2 or more licensees are the same, the order in which
the licensee's names are to be set out on the list shall be determined by lot
in accordance with the regulations.
"(6) The Chairperson of the Tender Board shall give the Minister the list
prepared under subsection (4).
"(7) Where the Tender Board rejects a licensee's application under this
section, the Chairperson of the Board shall give the licensee written notice
of the rejection and of the grounds on which the application is rejected.
Report to the Minister on the processing of applications
"89DAI. (1) The Chairperson of the Tender Board shall report to the Minister
on the processing of applications under section 89DAH and, in particular,
shall: (a) if no applications that meet the requirements of section 89DAE are
lodged in response to the section 89DAB notice-inform the Minsiter
accordingly; and
(b) if the bid of a licensee referred to in subsection 89DAH (3) is below
the reserve determined by the Minister under section 89DAG-inform the
Minister of:
(i) the name of the licensee; and
(ii) the amount of the licensee's bid.
"(2) If:
(a) the Minister publishes a section 89DAB notice for the allocation of an
FM frequency or FM frequencies in a city or town; and
(b) no applications that meet the requirements of section 89DAE are lodged
in response to the notice; the Minister may publish a fresh section
89DAB notice for the allocation of an FM frequency or FM frequencies
in that city or town.
"(3) Where:
(a) the Minister publishes a section 89DAB notice for the allocation of 2
FM frequencies in a city or town; and
(b) only one licensee is included on the tender list; the Minister may
publish a fresh section 89DAB notice for the allocation of an FM
frequency in that city or town. The Minister to publish a notice about
the licensees on the tender list
"89DAJ. (1) Where the Minister receives a tender list under subsection 89DAH
(4), the Minister shall publish a notice in the Gazette that sets out the
names of the licensees on the list according to their order on that list.
"(2) If only one FM frequency is to be allocated pursuant to the section 89DAB
notice, the notice under subsection (1) shall also specify the amount of the
bid of the licensee who is alone on the tender list or highest on the tender
list.
"(3) If 2 FM frequencies are to be allocated pursuant to the section 89DAB
notice, the notice under subsection (1) shall also specify the amount of the
bid of the licensee who is alone on the tender list or the amounts of the bids
of the licensees who are highest and second highest on the tender list.
Meaning of offer of FM conversion to a licensee
"89DAK. (1) Where:
(a) the Minister publishes a section 89DAB notice; and
(b) a licensee lodges an application in response to the notice; the
Minister shall be taken, for the purposes of this Division, to offer
FM conversion to the licensee if the Minister gives the licensee
written notice that the licensee's licence will be converted to FM if
the licensee meets the necessary preconditions for conversion within
the period specified in the notice that contains the offer.
"(2) The period specified in the notice must be a reasonable one, having
regard to the preconditions to be met by the licensee. Initial offers
"89DAL. (1) Where the Minister receives a tender list under subsection 89DAH
(6), the Minister shall, subject to section 89DAN, make an offer or offers of
FM conversion in accordance with this section and section 89DAM.
"(2) If there is only one licensee on the tender list, the Minister shall
offer FM conversion to that licensee.
"(3) If:
(a) there are 2 or more licensees on the tender list; and
(b) only one FM frequency is to be allocated pursuant to the section 89DAB
notice; the Minister shall offer FM conversion to the licensee who is
highest on the tender list.
"(4) If:
(a) there are 2 or more licensees on the tender list; and
(b) 2 FM frequencies are to be allocated pursuant to the section 89DAB
notice; the Minister shall offer FM conversion to the licensees who
are highest and second highest on the tender list. What happens if a
successful licensee defaults?
"89DAM. (1) A licensee who has been offered FM conversion pursuant to a
section 89DAB notice defaults if:
(a) the licensee gives the Minister written notice that the licensee does
not wish to proceed with conversion of the licensee's licence to FM;
or
(b) the licensee does not meet the necessary preconditions for conversion
within the period specified in the notice that contains the offer.
"(2) Where a licensee defaults, the following provisions have effect:
(a) if the licensee is, at the time of default, the only licensee on the
tender list-the Minister may publish a fresh section 89DAB notice for
the allocation of an FM frequency in the city or town concerned;
(b) if:
(i) there are, at the time of default, 2 or more licensees on the
tender list; and
(ii) only one FM frequency is to be allocated pursuant to the
section 89DAB notice;
the Minister shall delete the defaulting licensee from the tender list and
offer FM conversion to the licensee who is then alone on the tender list or
highest on the tender list;
(c) if:
(i) there are, at the time of default, 2 licensees on the tender
list; and
(ii) 2 FM frequencies are to be allocated pursuant to the section
89DAB notice;
the Minister shall delete the defaulting licensee from the tender list and may
publish a fresh section 89DAB notice for the allocation of an FM frequency in
the city or town concerned;
(d) if:
(i) there are, at the time of default, 3 or more licensees on the
tender list; and
(ii) 2 FM frequencies are to be allocated pursuant to the section
89DAB notice;
the Minister shall delete the defaulting licensee from the tender list and
offer FM conversion to the licensee who is then second highest on the tender
list.
"(3) Where a licensee is offered FM conversion under this section, the
Minister shall publish a notice in the Gazette stating that FM conversion has
been offered to the licensee and specifying the amount of the licensee's bid.
The Minister may publish a fresh section 89DAB notice if satisfied of
collusion between licensees
"89DAN. (1) Where the Minister is satisfied that any of the licensees' bids
have been affected by collusion among licensees, the Minister may determine
that the applications not be dealt with under sections 89DAL and 89DAM and
that a fresh section 89DAB notice for the city or town concerned be published
instead.
"(2) Where the Minister makes a determination under subsection (1), the
applications shall not be dealt with under sections 89DAL and 89DAM and the
Minister may publish a fresh section 89DAB notice for the allocation of an FM
frequency or FM frequencies in the city or town concerned. How are deposits
dealt with?
"89DAO. (1) Where a licensee's application is rejected under subsection 89DAH
(2) or (3), any deposit paid by the licensee in relation to the application
shall be repaid to the licensee within 14 days after the day on which the
application is rejected.
"(2) Where:
(a) the Minister publishes a section 89DAB notice;
(b) a licensee's name is included in the tender list;
(c) the licensee's licence is not converted to FM pursuant to the section
89DAB notice; and
(d) another licence or licences are converted to FM pursuant to the
section 89DAB notice; the deposit paid by the licensee in relation to
the application shall, subject to subsection (5), be repaid to the
licensee within 14 days after the conversion or, where there are 2
conversions at different times, the last of the conversions.
"(3) Where a deposit is repaid under subsection (2), the licensee shall also
be paid interest on the deposit from (and including) the day on which the
relevant notice under subsection 89DAJ (1) is published to (and including) the
day on which the deposit is repaid.
"(4) Interest payable under subsection (3) shall be paid at the rate
determined in accordance with the regulations.
"(5) If a licensee defaults, the licensee forfeits any deposit paid by the
licensee in relation to the application. Conversion to FM
"89DAP. (1) Where:
(a) a licensee is offered FM conversion pursuant to a section 89DAB
notice; and
(b) the licensee meets the necessary preconditions for conversion before
the end of the period specified in the notice that contains the offer;
the Minister shall convert the licensee's licence to FM accordingly.
"(2) Where 2 FM frequencies are to be allocated pursuant to the section 89DAB
notice, the Minister shall, in converting a licence or licences to FM pursuant
to the notice, have regard to the desirability, subject to planning
considerations, of the licensee who is alone on the tender list, or highest on
the tender list, having the licensee's licence converted to whichever of those
frequencies the licensee prefers.".
