Commercial Broadcasting Licence Allocation Determination No. 1 of 1998 (Cth)
Commercial Broadcasting Licence Allocation Determination No. 1 of 1998
TABLE OF CLAUSES
Clause Page
PART 1-PRELIMINARY
1. Citation 1
2. Application of Determination 1
3. Interpretation 2
PART 2 - PREPARATION FOR THE ALLOCATION OF LICENCES
4. Forms 3
5. Advertisements 5
6. Applications 5
7. Authorised agent 6
8. Registration number 6
9. Reserve price 6
PART 3 - ALLOCATION OF LICENCE IF THERE IS ONLY ONE REGISTERED APPLICANT
10. Application of Part 3 6
11. Notice to nominated applicant 7
12. Lodging a Form of Acknowledgment 7
13. Withdrawal of application 7
14. Payment of balance of the price 7
15. Balance of price not paid or Form of Acknowledgment not lodged 8
16. Allocation of Licence 8
PART 4 - ALLOCATION OF LICENCE IF THERE IS MORE THAN ONE REGISTERED APPLICANT
17. Application of Part 4 9
18. Licence allocation exercise to be conducted 9
19. Notice of Licence Allocation Exercise 9
20. Withdrawal of application 10
21. Part 3 applies if all but one of the registered applicants withdraw before the Licence Allocation Exercise 10
22. Who may bid at licence Allocation Exercise 10
23. Bidding 10
24. What happens when Licence Allocation Exercise is completed 11
25. What happens if deposit not paid etc 12
26. Payment of balance of the price 12
27. Allocation of licence 13
PART 5 - MISCELLANEOUS
28. Termination of advertised allocation of licence 13
29. Refund of deposit and balance of the price 13
30. Re-offer of licence 13
31. Extension of time 14
32. Notices 15
33. Cheques and bank cheques 15
34. Lodgment 15
35. Liability of applicant etc. for failure to comply 15
36. ABA may appoint agent 15
37. Delegation 16
Commercial Broadcasting Licence Allocation Determination No. 1 of 1998
The Australian Broadcasting Authority makes the following Determination under subsection 36(1) of the Broadcasting Services Act 1992.
Dated 30 April 1998.
The Common Seal of
the Australian Broadcasting Authority
was affixed to this document
in the presence of:
______David Flint (signed)____ ________Giles Tanner (signed)___
Signature of Member Signature of Member/General Manager
David Flint Giles Tanner
Name Name
____________
PART 1 - PRELIMINARY
Citation
1. This Determination may be cited as Commercial Broadcasting Licence Allocation Determination No.1 of 1998.
Application of Determination
2. This Determination applies to allocation of licences of the kinds referred to in paragraphs 36(1)(a) and (b) of the Broadcasting Services Act.
[NOTE: Certain standard conditions are imposed on a commercial television broadcasting licence or a commercial radio broadcasting licence. See the Broadcasting Services Act, Schedule 2, clauses 7 and 8.]
Interpretation
3. (1) In this Determination:
“application fee, in relation to an application for a licence that is to be allocated, means the fee determined by the ABA in relation to the application for the purposes of paragraph 38(2)(b) of the Broadcasting Services Act.
“application form” means the form approved in writing by the ABA under paragraph 38(2)(a) of the Broadcasting Services Act;
“authorised agent” means a person authorised to act as the agent of an applicant under clause 7;
“balance of the price”, in relation to a licence, means:
(a) if a Licence Allocation Exercise was held in relation to the licence, the difference between:
(i) the amount of the price bid on behalf of the nominated applicant for the licence; and
(ii) the total amount of the nominated applicant’s deposit; or
(b) if no Licence Allocation Exercise was held in relation to the licence—the amount of the reserve price;
“Broadcasting Services Act” means the Broadcasting Services Act 1992;
“business day” means a day that is not a Saturday, a Sunday or a public holiday in New South Wales;
“complete”, in relation to a form, includes sign or seal, as the case requires;
“Form of Acknowledgment” means the form described in subclause 4(4);
“Form of Authority” means the form described in subclause 4(5);
“Form of Indemnity and Guarantee” means the form described in subclause 4(6);
“Licence Allocation Exercise” means the procedure provided under clauses 18, 19, 22, 23 and subclause 24(1) for the allocation of a licence for which there is more than one registered applicant;
“lodge” means lodge as the ABA specifies under clause 34;
“payment period” means:
(a) if a Licence Allocation Exercise was held in relation to the licence - the 45th, 46th and 47th days after the day of the relevant Licence Allocation Exercise; or
(b) if no Licence Allocation Exercise was held in relation to the licence - the 45th, 46th and 47th days after the date of the notice given to the applicant under clause 11 of this Determination.
“registered applicant” means an applicant whose application has been accepted and allotted a registration number by the ABA.
[NOTE: Because of subsection 46(1) of the Acts Interpretation Act 1901, an expression used in this Determination and the Broadcasting Services Act has the same meaning in this Determination as in the Act.]
(2) In this Determination, a reference to the nominated applicant in relation to a licence is a reference:
(a) if there is more than one registered applicant for the licence—to the registered applicant whose authorised agent bids an amount that is:
(i) the highest bid for that licence; and
(ii) at least the reserve price for the licence;
at a completed Licence Allocation Exercise that is held in relation to the licence; or
(b) if there is only one registered applicant for the licence—to that registered applicant.
(3) Unless the contrary intention appears, for the purposes of this Determination, a day is taken to end at 4 p.m. according to the standard time in effect on that day in Sydney.
PART 2 - PREPARATION FOR THE ALLOCATION OF LICENCES
Forms
4. (1) The ABA is to provide the forms that an applicant must complete. This clause lists the forms (other than the application form) and describes the content of each one.
(2) An applicant must use only:
(a) a form provided by the ABA; or
(b) a photocopy of a form so provided;
and no other form.
(3) A form may require an applicant to disclose any other relevant information that the ABA considers necessary, in addition to the requirements set out in this clause.
Form of Acknowledgment
(4) The ABA is to provide a Form of Acknowledgment that, when completed by an applicant, will contain statements to the following effect:
(a) that the applicant has relied 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 licence and in forming its opinion of the value of the licence; and
(b) that the applicant is aware that a licence will not be allocated unless the applicant pays the full amount payable under this Determination for the allocation of the licence; and
(c) if appropriate—that the applicant is aware that the fact that the applicant’s authorised agent was the highest bidder at the Licence Allocation Exercise does not of itself entitle the applicant to the allocation of the licence; and
(d) that the applicant is aware that it may be liable to the ABA in damages for any loss suffered by the ABA as a result of conduct of the applicant or its authorised agent.
[NOTE: See clause 35 - Liability of applicant etc. for failure to comply.]
Form of Authority
(5) The ABA is to provide a Form of Authority that, when completed by an applicant, will authorise the person named as agent in the completed form:
(a) to bid at the Licence Allocation Exercise (if any) that is held in relation to the licence; and
(b) to complete, on behalf of the applicant, the Form of Acknowledgment; and
(c) to do anything else that is reasonably necessary or incidental to the things set out in paragraphs (a) and (b).
Form of Indemnity and Guarantee
(6) The ABA is to provide a Form of Indemnity and Guarantee in the form of a deed that will, when completed and executed by an applicant and a director of the applicant, provide the ABA with:
(a) an indemnity by the applicant; and
(b) in the event that the applicant is called upon to perform its obligations under that indemnity and fails to do so, an indemnity by the director;
against any loss or costs that the ABA may suffer or incur as a result of any act, default or omission by the applicant or its authorised agent at any stage in the allocation process.
Advertisements
5. (1) When the ABA publishes an advertisement inviting applications for the allocation of one or more licences, the advertisement may include, in addition to the matters set out in subsection 38(1) of the Broadcasting Services Act, any other information that the ABA considers necessary.
(2) The ABA may change a matter that is set out in an advertisement.
(3) If the ABA changes a matter set out in an advertisement, or any of the information in an advertisement becomes out of date or is found to be incorrect after the advertisement is published, the ABA must publish an advertisement giving the new or correct information in the same way as the original advertisement was published.
Applications
6. (1) An applicant:
(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 ABA may accept an application only if:
(a) the applicant is a company:
(i) formed in Australia or an external Territory; and
(ii) having a share capital; and
(b) the application is lodged in accordance with the requirements specified in the relevant advertisement; and
(c) the applicant has applied in accordance with the application form; and
(d) at least one completed Form of Authority is lodged with the application; and
(e) a completed and executed Form of Indemnity and Guarantee is lodged with the application; and
(f) the application fee is paid by means of a bank cheque or in another form acceptable to the ABA.
[NOTE: In relation to a bank cheque, see clause 33.]
Authorised agent
7. (1) An applicant for a licence must authorise at least one individual to act as its authorised agent.
(2) The applicant must lodge a separate completed Form of Authority for each individual so authorised.
(3) If an applicant lodges a Form of Authority after it lodges its application, it must do so at least 2 business days before the day of the Licence Allocation Exercise relating to the licence to which the form applies.
Registration number
8. The ABA must allot a unique registration number to each application that it accepts.
Reserve price
9. On or before the closing date and time for applications for a licence referred to in clause 5, the ABA must set a reserve price for the licence.
PART 3 - ALLOCATION OF LICENCE IF THERE IS ONLY ONE REGISTERED APPLICANT
Application of Part 3
10. This part applies if, at the closing date and time for applications for a licence referred to in clause 5, there is only one registered applicant for the licence.
Notice to nominated applicant
11. Before the end of 5 business days after the closing date for applications for a licence referred to in clause 5 the ABA must give the nominated applicant for the licence:
(a) a notice setting out:
(i) that the nominated applicant is the only registered applicant for the licence; and
(ii) the amount of the balance of the price to be paid in relation to the licence; and
(iii) the account into which the balance of the price must be paid; and
(iv) the payment period; and
(v) the last day when the nominated applicant may withdraw its application; and
(vi) the last day when the nominated applicant must lodge a completed and legible Form of Acknowledgment; and
(b) a Form of Acknowledgment for completion.
[NOTE: For “balance of the price”, “payment period”, and “nominated applicant”, see subclauses 3 (1) and (2).]
Lodging a Form of Acknowledgment
12. The applicant must complete the Form of Acknowledgment and lodge a completed and legible Form of Acknowledgment with the ABA on or before the day notified under subparagraph 11(a)(vi).
Withdrawal of Application
13. A registered applicant described in clause 10 may withdraw its application for a licence by lodging with the ABA a notice to that effect at any time before the end of the day notified under subparagraph 11(a)(v).
Payment of balance of the price
14. A nominated applicant in relation to a licence must pay the balance of the price during the payment period by electronic funds transfer to an account specified by the ABA.
Balance of price not paid or Form of Acknowledgment not lodged
15.(1) If the nominated applicant fails to comply with clauses 12 and 14 in relation to the licence:
(a) the nominated applicant ceases to be the nominated applicant for the licence; and
(b) the ABA may again offer the licence for allocation in accordance with this Determination.
(2) However, the person is taken to have continued to be the nominated applicant for the licence after the last day of the payment period or after the day when the completed Form of Acknowledgment is to be lodged with the ABA if the ABA:
(a) extends the period for compliance with clauses 12 or 14 after that day; and
(b) has not re-offered the licence in accordance with this Determination before attempting to extend the period.
Allocation of Licence
16. (1) Subject to clause 28 and subsection 37(1) of the Broadcasting Services Act, the ABA must allocate the licence to the nominated applicant as soon as reasonably practicable after the nominated applicant has complied with clauses 12 and 14.
(2)Subclause (1) does not require the ABA to issue a licence before it is satisfied that all bank clearance procedures are complete for monies paid by the nominated applicant for the licence.
[NOTE: Subsection 37(1) of the Broadcasting Services Act is as follows:
“37. (1) A licence is not to be allocated to an applicant if:
(a) the applicant is not a company that is formed in Australia or in an external territory and has a share capital; or
(b) the ABA decides that subsection 41(2) applies to the applicant.”]
PART 4 - ALLOCATION OF LICENCE IF THERE IS MORE THAN ONE REGISTERED APPLICANT
Application of Part 4
17. This Part applies if, at the closing date and time for applications for a licence referred to in clause 5, there are 2 or more registered applicants for the licence.
Licence allocation exercise to be conducted
18. (1) Subject to clause 21, if more than one registered applicant has applied for the allocation of a particular licence, the ABA must conduct a Licence Allocation Exercise in relation to the licence unless the proposed licence allocation is terminated pursuant to clause 28.
[NOTE: see clause 28 regarding the termination of an advertised proposed allocation of a licence.]
(2) Nothing in this Determination prevents the ABA from holding 2 or more Licence Allocation Exercises on one day in one place.
Notice of Licence Allocation Exercise
19. (1) If a Licence Allocation Exercise is to be held in relation to a licence, at least 10 days before the day on which the Licence Allocation Exercise is to be held, the ABA must give to each registered applicant for the licence a notice setting out:
(a) the date, time, and place of the Licence Allocation Exercise; and
(b) any other information that the ABA considers necessary.
(2) If the ABA decides to change the date, time or place of the Licence Allocation Exercise after the notice has been given, the ABA must give each registered applicant a further notice setting out the new date, time and place.
(3) However, if the ABA decides, on the day when the Licence Allocation Exercise is to be held, to commence the Exercise later that day than the time mentioned in a notice under subclause (1) or (2) (as the case may be), the ABA must publicly announce the new time at the place where the Exercise is to be held.
(4) A notice given under subclause (2) may be given less than 10 days before the day when the Licence Allocation Exercise is to be held.
Withdrawal of application
20. A registered applicant described in clause 17 may withdraw its application for a licence by lodging with the ABA a notice to that effect at any time before the time when the Licence Allocation Exercise for that licence is to start.
Part 3 applies if all but one of the registered applicants withdraw before the Licence Allocation Exercise
21. (1) Subclause (2) applies if:
(a) more than one registered applicant has applied for a particular licence; and
(b) all but one of the registered applicants withdraw their applications for the licence before the time when the Licence Allocation Exercise is to start.
(2) Part 3 applies to the remaining registered applicant as if:
(a) the applicant had been the only registered applicant for the licence; and
(b) the closing date for applications for the licence was the day when the last of the other applications was withdrawn.
Who may bid at Licence Allocation Exercise
22. (1) A person may bid for a licence at a Licence Allocation Exercise only if he or she is an authorised agent of a registered applicant for the licence.
(2) An authorised agent of a registered applicant who intends to bid at a Licence Allocation Exercise cannot do so unless:
(a) he or she has produced evidence of his or her identity, as directed by the ABA and to its satisfaction, on the day of the Licence Allocation Exercise; and
(b) the ABA has provided him or her with a bidding number.
Bidding
23. (1) The person conducting a Licence Allocation Exercise may start the bidding at any figure that he or she thinks fit.
(2) If the bidding for allocation of a licence does not reach the reserve price for the licence the Licence Allocation Exercise for that licence is terminated.
(3) If during a Licence Allocation Exercise a dispute arises concerning:
(a) a bid; or
(b) whether a person is entitled to bid; or
(c) the conduct of the Licence Allocation Exercise;
the person conducting the Licence Allocation Exercise may decide the dispute, and may then, as appropriate:
(d) continue the Licence Allocation Exercise; or
(e) terminate the Licence Allocation Exercise; or
(f) re-start the bidding at a figure lower than the amount of the disputed bid.
(4) A decision under subclause (3) of the person conducting a Licence Allocation Exercise is final.
(5) If a Licence Allocation Exercise for a licence is terminated under this clause, the ABA is not obliged to continue the allocation of the licence as advertised.
[NOTE: See clause 30 regarding the re-offer of a licence when a Licence Allocation Exercise is terminated.]
What happens when Licence Allocation Exercise is completed
24. (1) A Licence Allocation Exercise for a licence is complete when the person conducting the Licence Allocation Exercise determines that a bidder is the highest bidder for the licence.
(2) Immediately after the completion of the Licence Allocation Exercise, an authorised agent of the nominated applicant must:
(a) pay a deposit of 10% of the amount of the bid; and
(b) complete a Form of Acknowledgment on behalf of the nominated applicant and lodge it with the ABA.
[NOTE: For “nominated applicant”, see subclause 3(2).]
(3) The deposit must be paid:
(a) by means of a cheque drawn as specified by the ABA; or
(b) in another way acceptable to the ABA.
[NOTE: In relation to a cheque, see clause 33.]
What happens if deposit not paid etc
25. (1) If an authorised agent of the nominated applicant at a Licence Allocation Exercise fails to:
(a) pay the deposit; or
(b) lodge a completed Form of Acknowledgment;
immediately after the Licence Allocation Exercise is completed, the nominated applicant:
(c) ceases to be the nominated applicant in relation to the licence; and
(d) is not entitled to take part in any other Licence Allocation Exercise (including a further Licence Allocation Exercise in relation to that licence) held on that day.
(2) If a cheque given in payment or part-payment of the deposit is not honoured on first presentation, the nominated applicant on behalf of whom the cheque was given ceases to be the nominated applicant in relation to the licence.
Payment of balance of the price
26. (1) A nominated applicant in relation to a licence must pay the balance of the price during the payment period by electronic funds transfer to an account specified by the ABA.
(2) If the nominated applicant does not pay the balance of the price during the payment period:
(a) the nomination of the applicant in relation to the licence ceases to have effect at the end of the payment period; and
(b) the ABA may again offer the licence for allocation in accordance with this Determination; and
(c) the nominated applicant is not entitled to a refund of the deposit paid under clause 24.
[NOTE: For “balance of the price”, “payment period”, and “nominated applicant”, see subclauses 3(1) and (2).]
Allocation of licence
27. Subject to clause 28 and subsection 37(1) of the Broadcasting Services Act, the ABA must allocate the licence to the nominated applicant as soon as reasonably practicable after the nominated applicant pays the balance of the price for the licence.
[NOTE: Subsection 37(1) of the Broadcasting Services Act is as follows:
“37. (1) A licence is not to be allocated to an applicant if:
(a) the applicant is not a company that is formed in Australia or in an external territory and has a share capital; or
(b) the ABA decides that subsection 41(2) applies to the applicant.”]
PART 5 - MISCELLANEOUS
Termination of advertised allocation of a licence
28. The ABA may terminate an advertised proposed allocation of a licence at any time before the licence is allocated.
Refund of deposit and balance of the price
29. If the ABA terminates an advertised proposed allocation of a licence, the ABA must refund:
(a) any part of the deposit for the licence paid under clause 24; and
(b) any part of the balance of the price for the licence paid by a nominated applicant.
Re-offer of licence
30. (1) If the ABA offers a licence for allocation and:
(a) an applicant is nominated in relation to the licence, but is not allocated the licence; or
(b) no applicant is nominated (whether because no applications were made, because the proposed licence allocation was terminated under clause 28, or otherwise) in relation to the licence;
the ABA may re-offer the licence for allocation.
(2) If a Licence Allocation Exercise is held in respect of a licence, and:
(a) no applicant becomes the nominated applicant in relation to the licence; or
(b) an applicant becomes the nominated applicant in relation to the licence but ceases to be the nominated applicant because the nominated applicant’s authorised agent fails:
(i) to pay the deposit; or
(ii) to lodge a completed Form of Acknowledgment; or
(c) an applicant becomes the nominated applicant in relation to the licence but ceases to be the nominated applicant in relation to the licence because a cheque given in payment or part-payment of the deposit was not honoured on first presentation; or
(d) the Licence Allocation Exercise is terminated under paragraph 23(2) or subparagraph 23(3)(e);
the ABA may re-offer the licence for allocation, and may hold a further Licence Allocation Exercise on the same day as the unsuccessful Exercise or on another day.
(3) If a licence is to be offered at a further Licence Allocation Exercise on a day other than the day on which the licence was first offered at a Licence Allocation Exercise:
(a) the ABA must advertise in accordance with subsection 38(1) of the Broadcasting Services Act; and
(b) subject to subclause (4), clauses 5, 6 ,7 and 8 of this Determination must be complied with as if compliance with those clauses had not already occurred.
(4) If a licence is re-offered for allocation on a day other than the day on which the licence was first offered at a Licence Allocation Exercise, an applicant who is registered as an applicant for the licence remains registered as an applicant for the licence and need not re-apply or pay an additional application fee.
Extension of time
31. (1) The ABA 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: “business day” is defined in subclause 3(1).]
Notices
32. (1) A notice to be given to an applicant by the ABA 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 application form as a “contact person” to whom notices may be given .
(2) A notice must be in writing.
(3) The ABA may give a notice to a person by means of facsimile transmission.
Cheques and bank cheques
33. If a payment under this Determination is to be made by cheque or bank cheque, the cheque or bank cheque must be:
(a) in Australian currency; and
(b) drawn on:
(i) a bank within the meaning of the Banking Act 1959; or
(ii) a person who carries on State banking within the meaning of paragraph 51 (xiii) of the Constitution.
Lodgment
34. The ABA may specify in writing (including in a written advertisement or in other material supplied by the ABA) the place where, and the manner in which, a form must be lodged.
Liability of applicant etc. for failure to comply
35. This Determination does not affect any right of the ABA to recover damages (including damages of an amount that is greater than the amount of the highest price bid) from the nominated applicant, or any other person, in relation to a failure by:
(a) a nominated applicant, or an authorised agent representing a nominated applicant, to comply with clause 12 or subclause 24(2); or
(b) a nominated applicant to pay the balance of the price for the relevant licence.
ABA may appoint agent
36. The ABA may at any time appoint, in writing, 1 or more persons as its agent or agents for any 1 or more of the following purposes:
(a) receiving applications;
(b) conducting a Licence Allocation Exercise;
(c) accepting and holding in trust, on behalf of the ABA, payments of the following kinds:
(i) application fees;
(ii) deposits;
(iii) the balance of the price in relation to a licence;
(d) carrying out administrative tasks under this Determination specified by the ABA.
Delegation
37. The ABA may delegate any or all of its powers and functions under this Determination (other than this power of delegation) to:
(a) a member of the ABA; or
(b) an associate member of the ABA; or
(c) a member of the staff of the ABA.
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