Futrends Pty Ltd and Australian Communications and Media Authority

[2020] AATA 987

Futrends Pty Ltd and Australian Communications and Media Authority [2020] AATA 987 (29 April 2020)

Division:GENERAL DIVISION

File Number(s):      2019/1670

Re:Futrends Pty Ltd

APPLICANT

AndAustralian Communications and Media Authority

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:29 April 2020

Place:Sydney

The decision of the Australian Communications and Media Authority, made 27 February 2019, to cancel the following licences issued to Futrends Pty Ltd (ACN: 116 169 389):

o1955529/1,

o1955528/1,

o1955527/1,

o1218695/1,

o1215547/1,

o1215546/1,

o1212545/1,

o1958665/1,

o1958663/1 and

o1968694/1

is affirmed.

..............................[SGD]..........................................

Deputy President J W Constance

CATCHWORDS

RADIOCOMMUNICATIONS – Low Power Open Narrowcasting (LPON) licence – licence cancelled pursuant to discretion – breach of licence conditions – whether licensee provided the service with “reasonable regularity” – meaning of “regularity” – where licencee failed to maintain records of the commencement, hours of operation and provision of the service – decision affirmed

LEGISLATION

Broadcasting Services Act 1992 (Cth) ss 18, 128

Radiocommunications Licence Conditions (Broadcasting Licence) Determination 2015 (Cth), ss 4.1, 4.11

CASES

Jeffery Shaw and Australian Communications Authority [2005] AATA 882

SECONDARY MATERIALS

Australian Communications Authority (LPON Transmitter Licences) Direction No. 2 of 2000, ss 10(4), 10(5)

REASONS FOR DECISION

Deputy President J W Constance

29 April 2020

INTRODUCTION

1. Between 2005 and 9 November 2018 the Applicant held a number of broadcasting licences under the Broadcasting Services Act 1992 (Cth) (the Act). These included ten licences to operate Low Power Open Narrowcasting (LPON) services.

2. LPON services operate on very low power and have limited range. The licences for these services are subject to conditions set out in the Radiocommunications Licence Conditions (Broadcasting Licence) Determination 2015 (the Determination) made under the Act.

3. If the holder of a LPON licence contravenes a condition of a licence the Respondent has a discretion to cancel the licence.[1]

   [1] Section 128 of the Act.

4. On 9 November 2018 the Respondent cancelled each of the ten LPON licences on the ground that the Applicant had failed to operate the licensed services with “reasonable regularity” and failed to keep the records of operation as required by conditions of each licence. The Applicant sought review of this decision and, on 27 February 2019, the Respondent affirmed their decision to cancel the licences.

5. The Applicant has applied to the Tribunal to review the decision to cancel the licences (the reviewable decision).

6. For the reasons which follow the reviewable decision will be affirmed.

   BROADCASTING SERVICES ACT 1992 (CTH)

7. Subsection 18(1) of the Act defines open narrowcasting services:

   (1) Open narrowcasting services are broadcasting services:

   (a) whose reception is limited:

   (i)      by being targeted to special interest groups; or

   (ii)      by being intended only for limited locations, for example, arenas or business premises; or

   (iii)     by being provided during a limited period or to cover a special event; or

   (iv)     because they provide programs of limited appeal; or

   (v)     for some other reason; and

   (b) that comply with any determinations or clarifications under section 19 in relation to open narrowcasting services.

   DETERMINATIONS AND DIRECTIONS

   Radiocommunications Licence Conditions (Broadcasting Licence) Determination 2015

8. This Determination is made under the Act.

9. Subsection 4.1(1) of the Determination provides:

   Subject to subsection (3), for paragraph 107 (1) (f) of the Act, every broadcasting licence (narrowcasting service) is subject to the conditions in this Part relating to the operation of any narrowcasting service station under the licence by the licensee.

10. Section 4.11 provides for certain conditions to be included in licences:

    (1)  A licence that authorises the operation of a narrowcasting service station at a carrier frequency within the range 87.5 to 88.0 MHz (inclusive) to provide a low power open narrowcasting service is subject to the following conditions:

    (a) if the licence is issued otherwise than upon renewal under section 130 of the Act – unless the licensee has a reasonable excuse for not doing so, the licensee must commence the service within 6 months beginning on the day the licence is issued;

    (b) subject to paragraph (a), the licensee must provide the service with reasonable regularity for the duration of the licence;

    (c) the licensee must maintain records of the commencement, hours of operation and provision of the service. 

    Australian Communications Authority (LPON Transmitter Licences) Direction No. 2 of 2000

11. This Direction (the Direction) was made under the Australian Communications Authority Act 1997 (Cth) and provides:

    (4) In considering whether or not to cancel an apparatus licence for a low power open narrowcasting service for contravention of any conditions included in the licence because of sections 5, 6, 7 and 9 of this Direction, the ACA must have regard to:

    (a)arrangements made by the licensee for access and use of a site for the purpose of providing the service;

    (b)ownership, purchase, lease or hire, or other arrangements made by the licensee for the use of a transmitter on the site for the purpose of providing the service;

    (c)arrangements made by the licensee to obtain programs for use in providing the service;

    (d)the regularity and continuity of programs broadcast by the licensee from the site;

    (e)the nature of the service to which the licence relates and which is being provided by the licensee;

    (f)the maintenance of records of the commencement, hours of operation and provision of a service under the licence; and

    (g)other such matters as the ACA considers relevant.

    (5) In considering whether a condition included in an apparatus licence because of clauses 5(b), 6(b), 7(b) or 9(b) requiring continued provision of a service has been complied with, the ACA must have regard to:

    (a)the period for which a service has not been provided in relation to the period in which it could have been provided;

    (b)whether any circumstances existed which gave rise to a failure to continue to provide a service that were beyond the reasonable control of the licensee or persons with whom arrangements existed under paragraph 10(4)(b);

    (c)the number of other apparatus licences for low power open narrowcasting services held by the licensee and the level of services provided under those licences;

    (d)such other matters as the ACA considers relevant.

    FACTS

12. The following facts, taken from the summary provided by the Respondent in its Statement of Facts and Contentions, are not in dispute. The reference to a document identified with the prefix “T” below is a reference to a document and page number in exhibit R1.

    13. Between October 2005 and July 2014, the applicant was issued the Licences. The following table identifies the relevant evidence before the Tribunal about the regularity of the provision of services under the Licences.

Licence Number	Licensed site	Date of initial licence issue	Dates of operation	Frequency of use
1.	1955529/1	145 Hillcrest Rd, Yarramundi, NSW 2753	October 2012 (T22-114)	24 March 2018 (T19-98) 14 September 2018 (T19-98)	Twice in 6 years and 11 months (number of hours unspecified)
2.	1955528/1	Optus site, Bilpin, 2482; Bells Line Road, Bilpin NSW 2758	October 2012 (T22-114)	24 March 2018 (T19-98) 14 September 2018 (T19-98)	Twice in 6 years and 11 months (number of hours unspecified)
3.	1955527/1	Communications Site Charleys Road, Mount Tomah, NSW 2786	October 2012 (T22-114)	24 March 2018 (T19-98) 14 September 2018 (T19-98)	Twice in 6 years and 11 months (number of hours unspecified)
4.	1218695/1	Grass Ski Centre Bells Line of Road, Kurrajong Heights, NSW 2783	October 2005 (T22-114)	2005-2015 (T19-98) 24 March 2018 (T19-98) 14 September 2018 (T19-98)	Unclear between 2005 and 2015 (logs insufficiently detailed) Maximum of twice in 3 years and 8 months (number of hours unspecified)
5.	1215547/1	85 Queens Road, Lawson Heights, NSW 2783	October 2005 (T22-114)	24 March 2018 (T19-98) 13 September 2018 (T19-98)	Twice in 13 years and 11 months (number of hours unspecified)
6.	1215546/1	Royal Hotel 220 Macquarie Road, Springwood, NSW, 2777	October 2005 (T22-114)	24 March 2018 (T19-98) 13 September 2018 (T19-98)	Twice in 13 years and 11 months (number of hours unspecified)
7.	1212545/1	Paragon Restaurant, Katoomba Road, Katoomba NSW 2780	October 2005 (T22-114)	2005-2015 (T19-98) 24 March 2018 (T19-98) 13 September 2018 (T19-98)	Unclear between 2005 and 2015 (logs insufficiently detailed) Maximum of twice in 3 years and 8 months (number of hours unspecified)
8.	1958665/1	3961 Putty Rd, Colo Heights, NSW 2775	February 2013 (T22-114)	14 September 2018 (T19-98)	Once in 6 years and 7 months (number of hours unspecified)
9.	1958663/1	33 Bullridge Road, East Kurrajong, NSW 3756	February 2013 (T22-114)	24 March 2018 (T19-98) 14 September 2018 (T19-98)	Twice in 6 years and 7 months (number of hours unspecified)
10.	1968694/1	4.9 km WSW of Silverdale off Eltons Rd, Silverdale, NSW 2570	July 2014 (T22-114)	14 September 2018 (T19-98)	Once in 5 years and 2 months.

14. On 25 August 2017, the applicant was advised of a complaint relating to 9 of the Licences not being in service (all of the Licences, but for licence number 1968694/1) (T3-29). The respondent provided an extract of the condition in s 4.11(1) of the Determination. The applicant was invited to provide information that services were being provided in accordance with its licence conditions or to advise why services were not being provided and to explain when it would provide those services. The applicant was also invited to comment on certain factors which were relevant to the decision whether to cancel the Licences.

15. The applicant responded on 21 September 2017 (T4-34), confirming that none of the LPON transmitters the subject of 9 of the Licences were ‘on-air’. The applicant advised of personal circumstances of its Managing Director which explained why they had gone off air. The applicant explained that the applicant was installing new transmitters, and hoped to have all LPON transmitters on air by the end of 2018.

16. On 9 October 2017, the respondent advised that the absence of the provision of services for 4 years (as was proposed by the applicant) was not an acceptable timeframe (T5-37). The respondent gave a preliminary view that the applicant was in breach of its licence conditions, and requested that the applicant consider whether it could commence services in a more acceptable timeframe.

17. The Managing Director of the applicant responded on 27 October 2017 (T6-43) and said:

I will however, commit to trying to get the transmitters on air by Jun 2018. An earlier completion date might be possible once I am able to take stock of my situation when I return to my home.

If all aspects progress well, I will aim to complete the task by end of Apr 18. I will provide you an update during Feb 18 as to how the activity is progressing.

18. On the basis of this assurance, the respondent advised it would take no further action until 31 March 2018 and requested an update from the applicant as at this date (T7-48).

19. On 24 March 2018, the applicant provided a DVD containing videos from the applicant’s LPON transmitters, indicating that they were operating (T8-53). No further advice was provided about the installation of new transmitters.

20. On 1 to 4 May 2018, the respondent conducted field work to check the transmitters authorised by the Licences. None were broadcasting (T9).

21. On 25 May 2018, the applicant was advised of the outcome of the respondent’s field work (T10). Again, the conditions in s 4.11 of the Determination were drawn to the applicant’s attention, and it was invited to make submissions about its compliance with the licence conditions.[2]

[2] Respondent’s Statement of Facts, Issues and Contentions dated 20 September 2019, [13]-[21].

1. By letter of 12 June 2018 the Applicant advised the Respondent:

   In response, I state that, at this stage, I have no intention of having all the LPON licences on-air on a continuous basis, but will activate them on a regular basis in accordance with the Act. I still intend to find a suitable technical solution to providing a more continuous broadcasting arrangement; however, we have not yet been able to develop a suitably practicable solution. The Act does not require that LPONs must be on-air 24/7.

   …Irrespective, I believe that I am compliant with the Act and will continue to activate the subject LPONs on a regular basis until we can implement a technical arrangement that can broadcast on a more continuous basis.[3]

   [3] Exhibit R1, T11 at 69.

2. On 28 June 2018 the Respondent requested the Applicant “provide further information about the regularity of the transmissions being made.”[4] It was suggested that records of the commencement, hours of operation and provision of service be provided to demonstrate the regularity of service.

   [4] Exhibit R1, T12 at 71.

3. On 8 July 2018 the Applicant responded:

   We are close to having a simple self-sustaining transmitter arrangement developed. We hope to commence rolling out this arrangement over the next couple of months. Until this is in place, I intend to activate my LPON’s on a quarterly basis (second quarter 2018 forwarded with my previous response). This is aiming to meet what would be reasonable regularity for LPON’s being used for special events etc.[5]

   [5] Exhibit R1, T13 at 73.

4. On 23 July 2018 an officer of the Respondent attended the site in respect of which one of the licences[6] was issued. The licence was not operating and, as access to the site was restricted, it could not be determined whether any equipment was in place.[7] The Applicant was advised of this and given the opportunity to make further submissions. It was also advised of the compliance and enforcement actions, including cancellation, which could be taken by the Respondent in respect of breaches of licence conditions.[8]

   [6] Licence 1968694/1.

   [7] Exhibit R1, T14 at 77.

   [8] Exhibit R1, T15 at 79.

5. On 25 July 2018 the Respondent again wrote to the Applicant advising that it was investigating whether the Applicant had breached the conditions of its licences, particularly referring to the requirement that a licensee must maintain records of the operation of its licences.[9] The Applicant was invited to provide these records for each of the ten licences.

   [9] Exhibit R1, T16 at 87.

6. On 22 August 2018 the Applicant informed the Respondent that a DVD of licences in operation on 24 March 2018 (which had been provided to the Respondent) was the Applicant’s record of transmissions.[10] On 3 September 2018 the Respondent requested the Applicant provide records of operations prior to 24 March 2018.[11]

   [10] Exhibit R1, T17 at 91.

   [11] Exhibit R1, T18 at 93.

7. The Applicant provided the following transmission log:[12]

   [12] Exhibit R1, T19 at 98.

Licence	Location	Operating Periods
		1	2	3	4	5	6
1955529	Yarramundi	24 Mar 18	14 Sep 18
1955528	Bilpin	24 Mar 18	14 Sep 18
1955527	Mt Tomah	24 Mar 18	14 Sep 18
1218695	Kurrajong	2005-2015	24 Mar 18	14 Sep 18
1215547	Lawson	24 Mar 18	13 Sep 18
1215546	Springwood	24 Mar 18	13 Sep 18
1212545	Katoomba	2005-2015	24 Mar 18	13 Sep 18
1958665	Colo Heights	14 Sep 18
1958663	East Kurrajong	24 Mar 18	14 Sep 18
1968694	Silverdale	14 Sep 18

1. In an email dated 18 September 2018 to the Applicant, the Respondent requested advice as to the target audience of the services and how the target audience could know when to expect the services to be available.[13]

   [13] Exhibit R1, T20 at 99.

2. On the same day the Applicant advised the Respondent:

   Air FM broadcasts full-time on 88.0 MHz from Glenbrook and this is the program I broadcast on the other 88.0 MHz LPONs as per the log.

   In addition, the licences are available for special events. People wanting a local broadcast can locate me on the ACMA register of licences.

   Consequently, my target audience at this stage is anyone who wants a special event broadcast from one of the LPON locations. In response to any enquiries, I can broadcast Air FM to demonstrate the utility of any of the licences at any time.

   My intention remains to have a more regular broadcast once we have developed a simple self-sustaining transmitter system. I acknowledge that this is taking longer than I had hoped but am limited by what my tech can do.[14]

   [14] Exhibit R1, T21 at 103.

3. On 9 November 2018 the Respondent cancelled the licences.[15] The cancellations were affirmed following an internal review by the Respondent.[16]

   Correspondence between Mr Allen, a Member of the Executive of the Australian Narrowcast Radio Association, and the Respondent

   [15] Exhibit R1, T22 at 107.

   [16] Exhibit R1, T2 at 15.

4. On 13 February 2018 Mr Allen wrote to the Respondent asking for advice:

   I have one of my licences that is used for a 8 hours period only the rest of the time it is not used.

   One of the conditions of a narrowcast licence is

   ·     by being provided during a limited period or to cover a special event.

   Is 8 hours or less classed as a limited period.

5. On 15 February 2018 the Respondent replied:

   It would be reasonably expected that an Open Narrowcasting service, broadcasting for eight hours or less per day, would be regarded as meeting the Open Narrowcasting reception limitations as specified in the Broadcast Services Act.

   As you are probably aware, since 1st April 2017, HPON and LPON operators are not required to explain to the ACMA how reception of their services is limited in any way, although providers must still comply with the limitation requirements of the Broadcasting Services Act. (emphasis added)[17]

   [17] Exhibit R2, Attachment A.

6. Later the same day the Respondent sent a further email to Mr Allen in the following terms:

   It would be reasonably expected that an Open Narrowcasting service, broadcasting for eight hours or less per year, would be regarded as meeting the Open Narrowcasting reception limitations as specified in the Broadcast Services Act whose reception is limited “by being provided during a limited period or to cover a special event”.

   As you are probably aware, since 1st April 2017, HPON and LPON operators are not required to explain to the ACMA how reception of their services is limited in any way, although providers must still comply with the limitation requirements of the Broadcasting Services Act. (emphasis added)[18]

   [18] Exhibit R2, Attachment B.

7. This correspondence was brought to the attention of the Applicant.

   The evidence of Mr Roberts, Managing Director of the Applicant

8. Mr Roberts gave evidence at the hearing and confirmed the following in a written submission to the Tribunal dated 25 March 2019:

   Futrends Pty Ltd holds one HPON licence and, up until ACMA revoked ten LPON licences, 16 LPON licences. Futrends broadcast Cool Country 2KA on the HPON and some LPONs from 2006 up until 2015 when the lease expired on the property where the HPON antenna (62m high AM tower) was located. The landlord wouldn’t extend the lease. At that time, the station was taken off-air and, because I was then posted to Canberra (with the Air Force from mid-2014 until end 2016), it was practicably impossible to try to bring the station back on air.

   …

   I finally gained possession of my property on 01 Nov 17 which provided access to my stored radio equipment and tools. Given the remote location of some of the transmission sites, we realised that we would need transmitter systems that did not need the electricity grid for power. Consequently, my stock of 240V powered receivers and transmitters would not provide a practicable solution for most sites.

   We experienced a range of technical difficulties developing a low-cost solar-powered transmitter system and, after three iterations (gradually increasing in cost), we had a good technical solution by Nov 18. The two previous prototypes failed to maintain frequency stability after two to six weeks of trial transmissions. These failures consumed considerable time and delayed achieving a reliable solution.

   Notwithstanding the delays in developing a reliable technical solution, I activated the licences for short periods of time during Mar 18 and Sep 18 to exercise the licences and comply with the minimum requirements of the Act. (DVD recordings of these events were sent to ACMA as objective evidence that the licences were actually on-air at these times.)

   …

   Regular email and phone exchanges were maintained with ACMA during 2018 with no obvious indication that ACMA were intending to cancel the licences. The positive tone of communications gave me the reasonable expectation that ACMA was not uncomfortable with the progress being made. So, I received quite a shock with I received a letter from ACMA during Nov 18 stating that the licences had been cancelled.

   ISSUES FOR DETERMINATION

1. The following issues arise for determination.

   (1)Has the Applicant breached a condition or conditions of any of the licences?

   (2)If so, should the discretion to cancel any of those licences be exercised?

   CONSIDERATION

   The Applicant’s argument

2. It was argued on behalf of the Applicant that:

   ·it has commenced transmissions that complied with the Act;

   ·it relied on the Respondent’s advice of 15 February 2018 as to the requirements of broadcasting for a “limited period” of time;

   ·the Respondent seeks to apply licence conditions in excess of those required by the Act;

   ·it wishes to provide a more regular service on the subject LPONs;

   ·it ceased development of a reliable solar-powered self-sustaining transmitter system upon receipt of the cancellation notice;

   ·it is confident that it can have the transmitters operational within five months of being permitted to proceed.

   Issue1: Has the Applicant breached a condition or conditions of any of the licences?

   Record keeping

3. The Applicant accepts that it has not maintained the records required by section 4.11(1)(c) of the Determination. The records kept fall far short of what was required. They did not record the commencement, hours of operation and provision of the services.

4. I am satisfied that the Applicant breached this condition in each of the subject licences.

   Provision of the service with reasonable regularity for the duration of the licence

5. The Applicant relies on the advice it received from the Authority on 15 February 2018 and argues further that transmission for short periods three months apart satisfies the requirement of “reasonable regularity”. I do not agree.

6. The transmission log provided by the Applicant shows that:

   ·prior to 2018 services were provided under only two of the licences and only up to, and including, 2015;

   ·services were provided under eight of the licences for an unspecified period on 24 March 2018 and two did not operate at all on that day;

   ·services were provided under seven of the licences for an unspecified period on 14 September 2018, and under three of the licences for an unspecified period on 13 September 2018.

7. The Oxford English Dictionary provides several meanings of “regular”, some of which, but not all, refer to repetition at short intervals. In the context in which “regularity” is used in the Determination (considering that it is qualified by “reasonable”), the appropriate meaning provided is:

   Used, done, or happening on a frequent or habitual basis.

8. On the basis that the purpose of the condition is to ensure that services are provided to the public under LPON licences and that licences are not hoarded and unused, the relevant factor imported by the use of “regularity” is that the licences be used on a “habitual basis” without imposing any notion of frequency or use at short intervals. The appearance of a comet every ten years is properly said to be “regular” within the ordinary meaning of the word.

9. It is the qualification of “regularity” by the word “reasonable” which makes the frequency of broadcasts under a particular licence relevant in considering the condition imposed by section 4.11(1)(b). The Determination does not require the condition to specify precisely the frequency with which broadcasts were to be made. This allows for the particular circumstances of the operation of a particular licence to be taken into account when deciding whether a breach of the condition has occurred.

10. In this case none of the subject licences was used with “regularity” during the duration of the licence.

11. As appears from the table reproduced in paragraph 19 of these reasons, two of the licences were only used once in a period of five years. Bearing in mind that the use was on a single occasion in each case, the use cannot be said to be “habitual”.

12. Six licences were used on two occasions, however in each case the use occurred on 24 March 2018 and 13 September 2018. The shortest period of currency of any of these licences was from February 2013 until cancellation in November 2018. While two uses over a period five years may, in some circumstances, be “regular”/“habitual”, this is not the case when the two uses are only six months apart.

13. The remaining two licences may have been used between 2005 and 2015 in addition to their use in March and November 2018, however there is no evidence to establish the extent of their use in that period. In any event the very limited operations since 2015 demonstrate they were not used with regularity.

14. As I have decided that none of the services were provided with regularity, it is unnecessary to consider the arguments as to whether they were provided with “reasonable” regularity. However, as considerable time was spent on this question, I will address the arguments advanced.

15. It should be noted that in many, if not all, cases it will not be necessary for the Tribunal to decide precisely what periods of time between broadcasts establish reasonable regularity.[19] Usually it will be sufficient for the Tribunal to determine whether the facts proved in a particular case do or do not meet the requirement. I agree with the submission of the Respondent that:

    There is no fixed minimum number of hours as to what would constitute ‘reasonable regularity’. Rather, what is ‘reasonable’ will be informed by all the circumstances of the licence. However, the reasonableness requirement should be informed by the purpose of the condition, which is to ensure that people are in fact making meaningful use of the licence.[20]

    [19] See Jeffery Shaw and Australian Communications Authority [2005] AATA 882.

    [20] Respondent’s Statement of Facts, Issues and Contentions dated 20 September 2019, [42].

16. Whilst not conclusive, the provision in paragraph 4.11(1)(a) requiring commencement of a service within six months of the issue of the licence, strongly suggests that an interval of more than that period would not meet the “reasonable regularity” requirement.

17. I accept also the submission of the Respondent that the short transmissions in March and September 2018 do not amount to a relevant use of the licences for the purposes of meeting the condition imposed by paragraph 4.11(1)(b). The requirement is that the licensee must provide the service to which the licence relates. Transmitting for a very short period in an attempt to meet the licensing conditions is not the provision of a service to the listeners of that broadcast.

18. The Applicant placed great reliance on the contents of the email dated 15 February 2018 from the Respondent to Mr Allen (see paragraph 25 of these reasons). However, the request which gave rise to the email (see paragraph 23) was whether broadcast for eight hours or less is “classed as a limited period”. The only reasonable interpretation of Mr Allen’s request was that he was referring to the description of “open narrowcasting services” contained in sub-paragraph 18(1)(a)(iii) of the Act (see paragraph 7 of these reasons) rather than the condition imposed by section 4.11 of the Determination.

19. Turning to the requirements of subsection 10(5) of the Direction, I am satisfied that the periods for which services have been provided is minimal in relation to the periods for which those services could have been provided.

20. Mr Roberts gave evidence that during 2015 the lease expired for the site from which a High Power Open Narrowcast licence operated to provide transmissions to the LPON sites. At that time the network was taken off-air. As he had been posted to Canberra in 2014 and because of court proceedings then current, he was unable to access the transmission equipment until October 2017. Subsequent attempts to develop and set up solar-powered transmitters were not successful before the licences were cancelled

21. By letter of 21 September 2017[21] Mr Roberts advised the Respondent that he planned to have the Applicant providing services under all the LPON licences by the end of 2018. As at September 2017 only one of the LPON licences was transmitting.

    [21] Exhibit R1, T4 at 34-35.

22. The short transmissions in March and September 2018 were undertaken as part of a proposed quarterly transmission program but this was unable to proceed when the licences were cancelled.

23. The expiry date of the lease of the HPON site was within the knowledge of the Applicant and yet there is no evidence to suggest that this event was planned for in advance as good business practice would dictate. Problems which arose from Mr Robert’s transfer and matrimonial issues may not have been within his control (and therefore not within the control of the Applicant) but again there is no explanation as to the steps, if any, taken by Mr Roberts to obtain access to the sites and/or equipment.

24. The Applicant held a small number of other licences during the relevant period but the majority of the licences were not being utilised for extended periods.

25. When viewed over the entire period of possible operation under the licences, regard to the matters contained in subsection 10(5) of the Direction does not cause me to alter the conclusion previously expressed.

    Should the discretion to cancel any of the licences be exercised?

26. Consideration of the matters required by subsection 10(4) of the Direction (see paragraph 11 above) does not significantly assist the Applicant:

    ·upon expiry of the lease the Applicant did not have proper arrangements in place to secure premises from which the transmission of most, if not all, of the services to be provided under the LPON licences (the transmission of Air-FM) would emanate;

    ·the development of a solar-powered transmitter continued to be delayed;

    ·there is no evidence of the arrangements made by the Applicant to obtain programs for use in providing services should it be able to resume services;

    ·the programs broadcast from the subject sites have not been regular nor continuous;

    ·there is evidence that the nature of the services would be to broadcast Air-FM (country music) and at special events,[22] although no detail was provided;

    ·record-keeping by the Applicant over a period in excess of ten years has been very poor.

    [22] Exhibit R1, T21 at 103.

27. The Applicant was given several opportunities to become compliant with the conditions of the licences and was warned of the consequences of continued non-compliance.

28. For the reasons stated above the discretion to cancel the subject licences should be exercised.

    CONCLUSION

29. The decision of the Australian Communications and Media Authority, made 27 February 2019, to cancel the following licences issued to Futrends Pty Ltd (ACN: 116 169 389):

    o1955529/1,

    o1955528/1,

    o1955527/1,

    o1218695/1,

    o1215547/1,

    o1215546/1,

    o1212545/1,

    o1958665/1,

    o1958663/1 and

    o1968694/1

    will be affirmed.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

..............................[SGD]..........................................

Associate

Dated: 29 April 2020

Date(s) of hearing:	28 January 2020
Applicant:	In person
Advocate for the Applicant:	K Roberts
Solicitors for the Respondent:	J Hutton, Australian Government Solicitor