Commercial Broadcasting Licence Allocation Determination 2018 (Cth)
Commercial Broadcasting Licence Allocation Determination 2018
The Australian Communications and Media Authority makes the following Determination under subsection 36(1) of the Broadcasting Services Act 1992.
Dated: 22 March 2018
Nerida O’Loughlin
[signed]
Member
James Cameron
[signed]
Member/General Manager
Australian Communications and Media Authority
Part 1—Preliminary
1 Name
This is the Commercial Broadcasting Licence Allocation Determination 2018.
2 Commencement
This Determination commences at the start of the day after it is registered on the Federal Register of Legislation.
Note: The Federal Register of Legislation may be accessed at Authority
This Determination is made under subsection 36(1) of the Broadcasting Services Act 1992.
4 Repeal of the Commercial Broadcasting Licence Allocation Determination No.1 of 1998
The Commercial Broadcasting Licence Allocation Determination No.1 of 1998 [F2008B00073] is repealed.
5 Definitions
In this Determination:
ACMA means the Australian Communications and Media Authority.
allocation process means the procedures to be applied in allocating a commercial broadcasting licence as determined in this Determination.
applicant means a person who has applied for a commercial broadcasting licence under this Determination.
application fee means the amount referred to in section 8.
Australian Driver’s Licence means a licence to drive a motor vehicle issued or granted under an Act or legislative instrument of a State or Territory.
authorised agent means an individual for whom a Form of Authority has been lodged under paragraph 13(2)(d).
balance of the reserve price for a successful applicant is the reserve price less the amount of any deposit paid by the applicant.
balance of the winning price for a successful applicant is the winning price less the amount of any deposit paid by the applicant.
business day means a day that is not:
(a) a Saturday;
(b) a Sunday; or
(c) a public holiday in any of:
(i) the Australian Capital Territory;
(ii) New South Wales; or
(iii) Victoria.
commercial broadcasting licence means a commercial television broadcasting licence or a commercial radio broadcasting licence within the meaning of those terms given by section 6 of the Broadcasting Services Act 1992.
company means:
(a) a company within the meaning of the Corporations Act 2001; or
(b) a foreign corporation within the meaning of the Constitution.
complete, for a form, includes sign or seal, as the case requires.
Deed of Acknowledgment means the form described in subsection 7(5).
deposit means a payment made by an applicant under paragraph 13(2)(f) or in accordance with section 10.
Form of Application means the form described in subsection 7(4).
Form of Authority means the form described in subsection 7(6).
Form of Indemnity and Guarantee means the form described in subsection 7(8).
licence means a commercial broadcasting licence.
Licence Allocation Exercise means the procedure set out under Part 4 for identifying a successful applicant where there is more than one registered applicant for a licence.
lodge means lodge as required by the ACMA under section 41.
registered applicant means an applicant for whom an application has been registered and allotted a unique registration number by the ACMA under section 15.
related person, in relation to an applicant or an authorised agent that is a body corporate, means any of the following:
(a) a director or secretary of the applicant or authorised agent;
(b) an employee of the applicant or authorised agent;
(c) an employee of a related body corporate that provides services to the applicant or authorised agent.
reserve price, for a licence, means the reserve price set by the ACMA under section 11.
successful applicant, for a licence, means:
(a) if there is more than one registered applicant for the licence — the registered applicant who, or whose authorised agent, has bid an amount that is:
(i) the highest bid for that licence; and
(ii) at least the reserve price for the licence;
at a Licence Allocation Exercise held for the licence; or
(b) if there is only one registered applicant for the licence — the registered applicant.
winning price, for a commercial broadcasting licence which is allocated in accordance with Part 4, means the amount of the price bid for the licence by the successful applicant or its authorised agent.
Note: Paragraph 13(1)(b) of the Legislation Act 2003 has the effect that expressions used in this Determination have the same meaning as in the Broadcasting Services Act 1992.
6 References to other instruments
In this Determination, unless the contrary intention appears, a reference to any other legislative instrument is a reference to that other legislative instrument as in force from time to time.
Note 1: For references to Commonwealth Acts, see section 10 of the Acts Interpretation Act 1901; and see also subsection 13(1) of the Legislation Act 2003 for the application of the Acts Interpretation Act 1901 to legislative instruments.
Note 2: All Commonwealth Acts and legislative instruments are registered on the Federal Register of Legislation.
Part 2—Preparing for allocation
7 Forms
(1) The ACMA may approve forms for the purposes of this Determination.
(2) An applicant must use only a form approved by the ACMA.
(3) A form may require an applicant to disclose relevant information or provide documents that the ACMA considers necessary, in addition to the information or documents required to be part of the form by this section.
Form of Application
(4) The ACMA may approve a Form of Application that, when completed by an applicant, will:
(a) show the applicant’s name;
(b) nominate a contact person to whom notices may be given; and
(c) identify the commercial broadcasting licence for which the applicant is applying.
Deed of Acknowledgment
(5) The ACMA may approve a Deed of Acknowledgment that, when completed by an applicant, will contain statements to the following effect:
(a) that the applicant will rely solely on:
(i) its own skill, judgment and investigations; or
(ii) the skill, judgment and investigations of persons acting on its behalf;
in applying for the commercial broadcasting licence mentioned in the Deed and in forming its opinion of the value of the licence; and
(b) that the applicant is aware that becoming a successful applicant does not entitle it to be allocated a licence; and
(c) that the applicant is aware that the fact that the applicant, or its authorised agent, is the highest bidder at any Licence Allocation Exercise for the licence does not, of itself, entitle the applicant to be allocated the licence; and
(d) that the applicant is aware that a licence will not be allocated to it if the full amount payable under this Determination for the allocation of the licence has not been paid by the applicant or its authorised agent; and
(e) that the applicant is aware that it may be liable to the ACMA in damages for any loss suffered by the ACMA as a result of conduct of the applicant or its authorised agent; and
(f) that the applicant agrees to be bound by the obligations contained in this Determination.
Form of Authority
(6) The ACMA may approve a Form of Authority that, when completed by an applicant, will authorise the person named as agent in the Form:
(a) to bid at the Licence Allocation Exercise (if any) that is held for the commercial broadcasting licence mentioned in the Form; and
(b) to do anything else that is reasonably necessary for or incidental to the matter set out in paragraph (a).
(7) Each Form of Authority must relate to the authorisation of only one agent.
Form of Indemnity and Guarantee
(8)The ACMA may approve a Form of Indemnity and Guarantee in the form of a deed that will, when completed, give the ACMA:
(a) an indemnity by an applicant against any loss or costs that the ACMA may suffer or incur as a result of any act, default or omission by the applicant or its authorised agent at any stage during an allocation of the commercial broadcasting licence that is mentioned in the Form; and
(b) if the applicant is a company or incorporated association — a similar indemnity by a director or office-bearer of the applicant in case the applicant is called on to perform its obligations under its indemnity and fails to do so.
8 Application fee
The application fee is the charge fixed by the Broadcasting (Charges) Determination 2017, as in force from time to time, for, or in relation to, considering an application under this Determination.
9 Application fee not refundable
An application fee paid under this Determination is not refundable in any circumstances, including if an applicant withdraws or is taken to withdraw from the allocation process, or is not permitted to make a bid on a licence in the Licence Allocation Exercise.
10 Amount of deposit or deed of financial security required
(1)The ACMA must specify in writing, for the purposes of paragraph 13(2)(f), the amount required.
(2)A deed of financial security must be executed by an Australian-owned authorised deposit-taking institution (as defined in the Banking Act 1959) which is a bank.
(3)If a deed of financial security is executed by a person acting under a power of attorney for a body corporate, the applicant must give the ACMA a copy of the power of attorney with the deed.
(4)If a deed of financial security is given to the ACMA electronically before the closing date and time for the application, the original deed must be received by the ACMA no later than 3 business days after the closing date and time for the application (or, if the ACMA agrees to a later time, the agreed time) for the deed to be taken to have been given to the ACMA.
(5)An applicant is taken to have withdrawn its application if the ACMA is not satisfied that the person executing a deed of financial security is a person mentioned in subsection (2).
(6)The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (5).
11 Reserve price
At or before the closing date and time for applications for a licence included in a notice published under subsection 38(1) of the Broadcasting Services Act 1992, the ACMA must set a reserve price for the licence.
Note: If Part 5 applies to the proposed allocation of a licence, the reserve price for the licence becomes the total price of the licence.
12 Payment of amounts
(1) An amount paid to the ACMA on behalf of the Commonwealth under this Determination must be paid in Australian currency.
(2) An amount must be paid by bank cheque or by electronic transfer.
(3) An electronic transfer must be made into the bank account with the following details:
(a) Bank—ANZ Bank;
(b) Branch—Belconnen;
(c) BSB number—012-951;
(d) Account number—8379 24272;
(e) Account name—ACMA Official Administered Receipts;
or such other account as specified in writing by the ACMA.
(4) An amount is taken to have been paid by the closing date and time specified by the ACMA in writing if either:
(a) the ACMA receives a bank cheque for the full amount on or before the closing date and time; or
(b) both:
(i) the ACMA receives evidence that an electronic transfer of the full amount was made on or before the closing date and time (such as a transfer receipt); and
(ii) the amount is received in the ACMA’s bank account no later than 3 business days after the closing date and time; or
(c) the ACMA receives other evidence which satisfies the ACMA that the person making the payment has taken all reasonable steps to pay the amount on or before the closing date and time.
(5) An amount due under this Determination is not paid in full if bank charges or government duties imposed on a payment reduce the net payment to less than the amount due.
Note: The effect of this subsection is that an applicant or authorised agent must add the value of any bank charge or government duty to the amount of a payment.
(6) If an amount payable under this Determination is not an amount of whole dollars, the amount is rounded up to the next dollar.
Part 3—Registering for an allocation
13 Applications
(1) A person:
(a) may apply for more than one licence; and
(b) may make only one application for any one licence; and
(c) must make a separate application for each licence for which it wishes to apply.
(2) The ACMA may accept an application for a licence only if, on or before the closing date and time for the application set out in the notice under subsection 38(1) of the Broadcasting Services Act 1992:
(a) the applicant has lodged a completed and legible Form of Application if such a form has been approved by the ACMA under subsection 7(4); and
(b) the applicant has lodged a completed and legible Deed of Acknowledgment if such a form has been approved by the ACMA under subsection 7(5); and
(c) the applicant has lodged a completed and legible Form of Indemnity and Guarantee if such a form has been approved by the ACMA under subsection 7(8); and
(d) if the applicant is a company or incorporated association — the applicant has lodged at least one completed and legible Form of Authority if such a form has been approved by the ACMA under subsection 7(6); and
(e) the applicant has paid the application fee in accordance with the notice; and
(f) the applicant has done one of the following:
(i) paid a deposit of an amount to the ACMA on behalf of the Commonwealth; or
(ii) given the ACMA on behalf of the Commonwealth a deed of financial security, for an amount; or
(iii) paid a deposit of part of an amount and given a deed of financial security for the remainder.
Note: For information on how the application fee and the deposit must be paid, see section 12.
(3) An applicant may give the ACMA an updated document for paragraphs (2)(a) to (d), or subparagraphs (2)(f)(ii) or (iii), at any time until the closing date and time for the application, but not after the closing date and time for the application.
(4) For paragraph (2)(f), amount has the meaning given by subsection 10(1).
14 Applicants to notify ACMA if application information incorrect
If an applicant knows that any of the information in the application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.
15 Registration of applicants
If the ACMA accepts an application under subsection 13(2), the ACMA must register the applicant and allot to the application a unique registration number.
Part 4—Allocation of licence if there is more than one registered applicant
16 Application of this Part
This Part applies if, at the closing date and time for applications for a licence included in a notice published under subsection 38(1) of the Broadcasting Services Act 1992, there are 2 or more registered applicants for the licence.
17 Licence Allocation Exercise to be conducted
(1) Subject to section 20, the ACMA must conduct a Licence Allocation Exercise for the licence unless the allocation of the licence is terminated under section 36.
(2) Nothing in this Determination prevents the ACMA from holding 2 or more Licence Allocation Exercises on one day.
18 Notice of Licence Allocation Exercise
(1) If a Licence Allocation Exercise is to be held for a licence, the ACMA must give to each registered applicant for the licence, at least 10 days before the day when the Licence Allocation Exercise is to be held, a notice setting out:
(a) the date, time and place of the Licence Allocation Exercise; and
(b) any other information that the ACMA considers necessary.
(2) If the ACMA decides, at any time after the notice has been given, to change the date, time or place of the Licence Allocation Exercise, the ACMA must give each registered applicant a further notice setting out the new date, time and place.
(3) However, if the ACMA decides, on the day when a Licence Allocation Exercise is to be held, to commence the Exercise later on that day than the time mentioned in a notice under subsection (1) or (2) (as the case may be), the ACMA must publicly announce the new time at the place where the Exercise is to be held.
(4) A notice given under subsection (2) may be given less than 10 days before the day when the Licence Allocation Exercise is to be held.
19 Withdrawal of application
(1)An applicant may withdraw its application for a licence by lodging a notice to that effect before the time when the Licence Allocation Exercise for the licence is to start.
(2) If an applicant who withdraws its application under subsection (1), or who is taken to have withdrawn its application under another section of this Determination, has paid a deposit under section 13 or in accordance with section 10, the ACMA must refund the deposit in accordance with subsection 28(2).
(3) Subsection (2) is subject to sections 43 and 45.
(4) An applicant may not withdraw its application after the Licence Allocation Exercise has commenced.
(5) An applicant must not be re-admitted to the allocation process after withdrawing its application.
Part 5 applies if all but one of the registered applicants withdraw before the Licence Allocation Exercise starts
(1) Subsection (2) applies if:
(a) more than one registered applicant has applied for a particular licence; and
(b) after the closing date and time, but before the time when the Licence Allocation Exercise for the licence is to start, all but one of the registered applicants have withdrawn their applications for the licence.
(2) Part 5 applies to the remaining registered applicant as if the applicant had been the only registered applicant for the licence.
21 Who may bid at a Licence Allocation Exercise?
(1) A person may bid for a licence at a Licence Allocation Exercise only if they are an individual who is:
(a) a registered applicant for the licence; or
(b) an authorised agent of a registered applicant for the licence.
(2) A registered applicant or an authorised agent must not bid at a Licence Allocation Exercise unless:
(a) they have produced evidence of their identity on the day of the Exercise, as directed by the ACMA and to its satisfaction; and
(b) the ACMA has given them a bidding number.
(3) For the purposes of paragraph (2)(a), the ACMA may be satisfied that a person has produced evidence of their identity on the day of the Exercise if the person provides the ACMA with a passport or an Australian Driver’s Licence.
Note: The ACMA may take a copy of the document for its records.
22 Bidding
(1) The person conducting a Licence Allocation Exercise may start the bidding at any amount that they think is appropriate.
(2) If the bidding for a licence does not reach the reserve price for the licence, the Licence Allocation Exercise for that licence is terminated.
(3) If a dispute arises during a Licence Allocation Exercise concerning:
(a) a bid; or
(b) a person’s entitlement to bid; or
(c) the conduct of the Licence Allocation Exercise;
the person conducting the Licence Allocation Exercise must determine the dispute, and must then, as they think is appropriate:
(d) continue the Licence Allocation Exercise; or
(e) terminate the Licence Allocation Exercise; or
(f) re-start the bidding at an amount that they think is appropriate.
(4) A decision under subsection (3) of the person conducting a Licence Allocation Exercise is final.
(5) If a Licence Allocation Exercise for a licence is terminated under this section, the ACMA is not obliged to continue the allocation of the licence as stated in a notice published under subsection 38(1) of the Broadcasting Services Act 1992.
Note: See section 38 regarding the re-offer of a licence for which a Licence Allocation Exercise has been terminated.
23 Telephone bidding
(1) A registered applicant may apply to the ACMA to bid by telephone at a Licence Allocation Exercise.
(2) An application under subsection (1) must be in writing and made no later than 5 business days before the commencement of the Licence Allocation Exercise.
(3) If the ACMA allows a registered applicant to bid by telephone at a Licence Allocation Exercise, the ACMA must, before the Licence Allocation Exercise, issue to the registered applicant a password and a unique identification number.
(4) An applicant who is allowed to bid by telephone at a Licence Allocation Exercise must provide the password and unique identification number to the ACMA immediately before the commencement of the Licence Allocation Exercise to verify the applicant’s identity.
24 Notice to successful applicant
The ACMA must give the successful applicant for the licence a notice setting out:
(a) the balance of the winning price for the licence; and
(b) the last day when the successful applicant may pay the balance of the winning price.
Note: The successful applicant and the balance of the winning price are defined in section 5.
25 Payment of balance of winning price
The successful applicant must pay the winning price for the licence by the date referred to in paragraph 24(b).
26 Balance of winning price not paid
(1) If the successful applicant fails to comply with section 25 in relation to a licence, the successful applicant ceases to be the successful applicant for the licence.
(2) However, the person is taken to have continued to be the successful applicant for the licence after the day notified under paragraph 24(b) if the ACMA:
(a) extends the period for compliance with section 25 to a day after the day initially notified under paragraph 24(b); and
(b) has not re-offered the licence in accordance with subsection 38(2) before attempting to extend the period.
27 Allocation of licence
Subject to section 36, the ACMA must allocate the licence to the successful applicant as soon as reasonably practicable after the successful applicant has complied with section 25.
Note: Section 102 of the Radiocommunications Act 1992 provides that the ACMA must issue transmitter licences that authorise the operation of one or more radiocommunications transmitters for transmitting the commercial broadcasting service authorised by a licence allocated under Part 4 or 6 of the Broadcasting Services Act 1992. Under the Commercial Broadcasting (Tax) Act 2017, a tax is imposed on the issue and anniversary of the coming into force of transmitter licences used in connection with a commercial broadcasting service. The tax is payable by the holder of the licence.
28 Refunds to unsuccessful applicants and withdrawn applicants
(1)If an unsuccessful applicant paid a deposit, the ACMA must refund the payment no later than 6 months after the Licence Allocation Exercise unless the ACMA has made a decision to retain the deposit under section 43.
(2)If an applicant that withdrew, or was taken to have withdrawn, its application paid a deposit, the ACMA must refund the payment no later than 6 months after the Licence Allocation Exercise unless the ACMA has made a decision to retain the deposit under section 43.
Note: Section 43 enables the ACMA to retain a deposit if it is satisfied certain breaches of this Determination have occurred.
Part 5—Allocation of licence if there is only one registered applicant
29 Application of this Part
This Part applies if, at the closing date and time for applications for a licence included in a notice under subsection 38(1) of the Broadcasting Services Act 1992, there is only one registered applicant for the licence.
30 Withdrawal of application
A registered applicant described in section 29 may withdraw its application for a licence by lodging a notice to that effect on or before the day notified under paragraph 31(d).
31 Notice to successful applicant
The ACMA must give the successful applicant for the licence a notice setting out:
(a) that the successful applicant is the only registered applicant for the licence;
(b) the balance of the reserve price for the licence; and
(c) the last day when the successful applicant may pay the balance of the reserve price; and
(d) the last day when the successful applicant may withdraw its application;
Note: The successful applicant and the balance of the reserve price are defined in section 5.
32 Payment of the balance of the reserve price
Unless a successful applicant withdraws its application in accordance with section 30, on or before the day notified under paragraph 31(d), the successful applicant must pay the balance of the reserve price for the licence.
33 Reserve price not paid
(1) If the successful applicant fails to comply with section 32 in relation to a licence, the successful applicant ceases to be the successful applicant for the licence.
(2) However, the person is taken to have continued to be the successful applicant for the licence after the day notified under paragraph 31(c) if the ACMA:
(a) extends the period for compliance with section 32 to a day after the day initially notified under paragraph 31(c); and
(b) has not re-offered the licence in accordance with subsection 38(4) before attempting to extend the period.
34 Allocation of licence
Subject to section 36, the ACMA must allocate the licence to the successful applicant as soon as reasonably practicable after the successful applicant has complied with section 32.
Note: Section 102 of the Radiocommunications Act 1992 provides that the ACMA must issue transmitter licences that authorise the operation of one or more radiocommunications transmitters for transmitting the commercial broadcasting service authorised by a licence allocated under Part 4 or 6 of the Broadcasting Services Act 1992. Under the Commercial Broadcasting (Tax) Act 2017, a tax is imposed on the issue and anniversary of the coming into force of transmitter licences used in connection with a commercial broadcasting service. The tax is payable by the holder of the licence.
Part 6—Miscellaneous
35 ACMA may obtain information from applicants and authorised agents
(1)If the ACMA has reason to believe that an applicant or authorised agent has information or documents that are relevant to the performance of any of the ACMA’s functions or the exercise of its powers under this Determination, the ACMA may, by written notice, require the applicant or authorised agent:
(a) to give to the ACMA, within the period and in the manner and form specified in the notice, any such information; or
(b) to produce to the ACMA, within the period and in the manner specified in the notice, any such documents.
Note: If a requirement in a notice given under this subsection is breached, the ACMA may take action under section 43.
(2) The ACMA may vary a notice given under subsection (1).
36 Termination of proposed allocation of a licence
The ACMA may terminate a proposed allocation of a licence at any time before the licence is issued.
37 Refund of deposit, reserve price and winning price
If the ACMA terminates a proposed allocation of a licence, the ACMA must refund:
(a) any part of the deposit paid under paragraph 13(2)(f);
(b) any part of the balance of the winning price for the licence paid under section 25; and
(c) any part of the balance of the reserve price for the licence paid under section 32.
38 New Licence Allocation Exercise and re-offer of licence
(1) If, at the closing date and time for applications for a licence included in a notice published under subsection 38(1) of the Broadcasting Services Act 1992, there are no registered applicants for the licence, the ACMA may re-offer the licence for allocation.
(2) If a Licence Allocation Exercise (the relevant Exercise) is held for a licence, and:
(a) the relevant Exercise is terminated; or
(b) the successful applicant for the licence ceases to be the successful applicant; or
(c) the licence is not allocated to the successful applicant; or
(d) the proposed allocation of the licence is terminated;
the ACMA may hold a new Licence Allocation Exercise for the licence on the same day as the relevant Exercise, or may re-offer the licence for allocation.
(3) If, under subsection (2), a new Licence Allocation Exercise is to be held for the licence on the same day as the relevant Exercise:
(a) the ACMA must announce publicly (at the place where the relevant Exercise was held) the time when, and the place where, the new Licence Allocation Exercise is to be held; and
(b) Part 4 (other than sections 16, 17, 18 and 23) applies to the new Licence Allocation Exercise; and
(c) a registered applicant for the licence continues to be a registered applicant for the licence, and is not required to re-apply or pay another application fee; and
(d) an authorised agent for the licence continues to be an authorised agent for the licence; and
(e) the reserve price for the licence remains in force.
(4) If Part 5 applies to the proposed allocation of a licence included in a notice published under subsection 38(1) of the Broadcasting Services Act 1992, and:
(a) the successful applicant for the licence ceases to be the successful applicant; or
(b) the licence is not allocated to the successful applicant; or
(c) the proposed allocation of the licence is terminated;
the ACMA may re-offer the licence for allocation.
(5) If a licence is to be re-offered:
(a) subject to paragraphs (b) and (c), sections 13 and 15 must be complied with as if the licence had not previously been offered; and
(b) subject to subsection (6), a registered applicant for the licence continues to be a registered applicant for the licence, and is not required to re-apply or pay another application fee; and
(c) subject to subsection (6), an authorised agent for the licence continues to be an authorised agent for the licence; and
(d) the application fee and reserve price for the licence remain in force.
(6) If a licence is to be re-offered because neither the successful applicant (former successful applicant) nor its authorised agents complied with section 25 or section 32:
(a) the former successful applicant does not continue to be a registered applicant for the licence;
(b) an authorised agent of the former successful applicant does not continue to be an authorised agent for that licence in relation to that applicant; and
(c) the former successful applicant may not apply for the licence under section 13.
39 Extension of time
(1) The ACMA may extend the period in which an applicant is required to do any thing required by this Determination, whether or not the period has expired.
(2) If the day for doing any thing under this Determination is not a business day, the thing is to be done on the next business day following that day.
Note: A business day is defined in section 5.
40 Notices
(1) A notice to be given to an applicant by the ACMA is taken, for all purposes, to have been given to the applicant if it is given to a person specified by the applicant in its Form of Application as a contact person to whom notices may be given.
(2) A notice must be in writing, and may be given by means of facsimile transmission or email.
41 Lodgement
The ACMA must specify in writing the place where, and the manner in which, a form must be lodged.
Note: The ACMA may specify these matters in a written notice or other material supplied by the ACMA to a person.
42 Liability of person for failure to comply
This Determination does not affect any right of the ACMA to recover damages (including damages of an amount greater than the amount of the highest bid) from a successful applicant, or any other person, for a failure by the successful applicant, or its authorised agent, to comply with section 25 or 32.
43 Retention of deposit or enforcement of deed for breach of procedures
(1) The ACMA on behalf of the Commonwealth may retain a deposit made by an applicant, or enforce a deed of financial security given by an applicant; if:
(a) the ACMA is satisfied that:
(i) the applicant or a related person of the applicant, breached a provision of this Determination; and
(ii) the breach affected, or may have affected, the outcome of the allocation process; or
(b) the applicant is a successful applicant who failed to pay the balance of the winning price as required under section 25; or
(c) the applicant failed to pay the balance of the reserve price as required under section 32; or
(d) the applicant or authorised agent failed to comply with a requirement in a notice given under subsection 35(1).
(2) The ACMA must notify the applicant, in writing, of a decision under subsection (1) and the nature of the breach or failure before the later of:
(a) 6 months after the end of the Licence Allocation Exercise; and
(b) 6 months after the day on which the breach or failure mentioned in subsection (1) occurred.
(3) A deposit retained under this section, or an amount obtained through enforcement of a deed of financial security, is forfeited to the Commonwealth unless the Federal Court orders the return of the amount under section 45.
44 Effect of retention on successful applicants
If the ACMA makes a decision under subsection 43(1) in relation to a successful applicant, the ACMA must not allocate the relevant commercial broadcasting licence to the successful applicant.
45 Application to Federal Court for return of retained amount
(1) An applicant who has been notified by the ACMA under subsection 43(2) may, within one year of receiving the notice, apply to the Federal Court for return of all or part of a deposit or an amount secured by a deed of financial security.
(2) On application, the Federal Court may:
(a) if the Court is not satisfied that the applicant or authorised agent committed the breach or failure identified in the notice given by the ACMA – order the return of all the amount retained by the ACMA; or
(b) if the Court is satisfied that the applicant or authorised agent committed the breach or failure, but considers that it would be disproportionate for the full amount to be retained – order the return of part of the amount retained by the ACMA.
(3) This section does not enable the Federal Court to order that a commercial broadcasting licence be allocated to an applicant.
(4) This section does not remove any existing jurisdiction of a court.
46 Liability of ACMA and the Commonwealth
Neither the ACMA nor the Commonwealth is liable to pay damages or costs arising from an act or omission of any person in relation to the procedures set out in this Determination.
47 Other rights not affected
This Determination does not limit any other right of action or remedy which the ACMA or the Commonwealth has against a person.
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