Shaw and Australian Communications Authority

[2005] AATA 882

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 882

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2005/9

GENERAL ADMINISTRATIVE DIVISION		)
Re		JEFFEREY SHAW

Applicant

And AUSTRALIAN COMMUNICATIONS AUTHORITY

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date12 September 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd].......................

SENIOR MEMBER

CATCHWORDS

Radiocommunications Act – Low Power Open Narrowcasting (LPON) licence – licence cancelled pursuant to discretion – breach of licence conditions - no “reasonable regularity” in radio broadcast – failure to maintain records.

Radiocommunications Act 1992 (Cth) ss107(f), 128

Radiocommunications Licence Conditions (Broadcasting Licence) Determination No. 1 of 1998

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

REASONS FOR DECISION

12 September 2005              Senior Member B J McCabe

introduction

1. Mr Jeffrey Shaw, the applicant, is the managing director of Celestial Industries Pty Ltd (“Celestial”). Celestial was the holder of a Low Power Open Narrowcasting (LPON) licence No 1407678 issued under s 97 of the Radiocommunications Act 1992 (the Act). Celestial was notified on 22 June 2004 that the licence was cancelled by the Australian Communications and Media Authority (the ACMA) pursuant to s 128 of the Act and clause 10 of the Australian Communications Authority (LPON Transmitter Licences) Direction No.2 of 2000. The decision to cancel was affirmed and reasons for the decision communicated to Celestial on 25 November 2004.

2.      The respondent says Celestial failed to commence a broadcasting service by 1 September 2001 and did not provide a regular service or maintain proper records as required by the licence.

3.      The applicant wishes to appeal the decision. (It is not entirely clear why Mr Shaw is named as the applicant instead of Celestial, but I will leave that question to one side for now.) The application for review was not filed with the Tribunal until 10 January 2005. It was out of time. The respondent consented to an extension of time. The parties have consented to have the matter heard on the papers.

THE MATERIAL BEFORE THE TRIBUNAL

4. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The parties provided written submissions complete with relevant attachments. The applicant also provided a DVD of historical information and photographs of the broadcasting operations.

THE FACTS

5.      On 3 February 2000 the ACMA approved the transfer of LPON licence No 1407678 to Celestial Industries Pty Ltd (the licensee). The licence was approved for an LPON service to be operated at Springfield Parkway at the closest point to Ashwood Place, Springfield, Queensland.

6.      On 7 April 2004 the ACMA received a complaint that the Springfield LPON Service was not being provided by the licensee.

7.      On 14 April 2004 the ACMA wrote to the licensee advising it of a complaint the ACMA had received (annex A of the respondent’s submissions). The complaint asserted Celestial had not been broadcasting in accordance with the provisions of the relevant legislation. The ACMA requested that Celestial provide evidence of its LPON service provision under s107 (f) of the Act, and the Radiocommunications Licence Conditions (Broadcasting Licence) Determination No. 1 of 1998 (the Determination).

8.      On 14 May 2004 the applicant on behalf of the licensee responded to the ACMA’s letter of 14 April 2004 and detailed various problems the applicant was having with the broadcast.

9.      On 19 May 2004 the ACMA delegate wrote to the applicant requesting information about whether a service was being provided from the site referred to in the licence. The ACMA also asked the applicant to provide records of the commencement, hours of operation and provision of service under the licence as required pursuant to paragraph 4.11(1)(c) of the Determination. The ACMA did not receive a reply to this letter.

10. On 22 June 2004 a delegate of the ACMA wrote to the licensee advising that she had exercised her powers under s128 of the Act to cancel the Springfield LPON licence. This letter was accompanied by a statement of reasons and advised the licensee of the review provisions under part 5.6 of the Act.

11.     In a facsimile dated 18 July 2004, the Applicant sought an extension of time in which to respond to the ACMA’s request. By a letter dated 27 August 2004 the ACMA advised the applicant they would extend the time for the applicant to furnish a response to the ACMA until 10 September 2004.

12.     On 8 September 2004 the applicant lodged with the ACMA an application for a review of the ACMA’s decision.

13.     On 5 October 2004 the ACMA sought evidence from Celestial’s referees in respect of the applicant’s broadcasting and utilisation of the LPON licence.

14.     On 28 October 2004 the ACMA received a facsimile from Mr Pat Brown of Logan Running confirming the club used Celestial’s broadcast to promote Queensland athletics. The ACMA also wrote to Ms Rickett of Logan Athletics Club but the letter was returned marked “returned to sender”.

15.     Between 2 November 2004 and 5 November 2004 ACMA officers attempted to contact the licensee’s referees. The attempts were unsuccessful.

16.     On 25 November 2004 the ACMA reconsidered its decision of 22 June 2004. The ACMA upheld its earlier decision to cancel Celestial’s licence and varied the grounds for cancellation of the licence to include a breach of s4.11(c) of the Determination.

THE LEGISLATION

17. The power to cancel an apparatus license is contained in s128 of the Act. Section 128 states:

128. (1) The ACMA may, by written notice given to the licensee, cancel the apparatus licence.

Note: Cancellations of apparatus licences are reviewable under Part 5.6.

(2) The notice must give the reasons for cancelling the licence.

18.     Section 107 of the Act states:

107. (1) An apparatus licence is subject to the following conditions:

(a) a condition that the licensee, and any person authorised by the licensee to operate a radiocommunications device under the licence, must comply with this Act;

(b) a condition that the licensee inform each person so authorised of the person's obligations to comply with this Act and the conditions of the licence…

…

(f)    such conditions (if any) as are specified in the regulations…

19. In administering s107(f) of the Act the respondent’s delegate exercised a discretion to enforce s4.11 of the determination. Section 4.11 states:

Certain low power open narrowcasting services — other conditions

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

(a)unless the licensee has a reasonable excuse for not doing so, the licensee must commence the service:

(i)if the licence was in effect before 1 March 2001 (whether or not the licence is renewed between 1 March 2001 and 31 August 2001 (inclusive)) — before 1 September 2001; or

(ii)if the licence is issued (other than upon renewal) on or after 1 March 2001 — within 6 months beginning on the day the licence is issued;

(b)the licensee must provide the service with reasonable regularity for the period specified in the licence;

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

20.     The applicant has provided material from Radio Qld, State Athletics Clubs Association Inc and Australian Enterprise Industrial to support his assertion that Celestial had commenced a broadcasting service under LPON licence No. 1407678 on or before 1 September 2001. While I am prepared to accept Celestial commenced broadcasts before 1 September 2001, that fact alone cannot satisfy the Determination. The broadcasts must be reasonably regular.

21.     The term “reasonably regular” can in this instance be given its ordinary meaning. The evidence before the Tribunal indicates broadcasts from the Springfield site were at best sporadic. In his submissions the Applicant has provided material detailing some (but not all) of Celestial’s broadcast history. The applicant has also provided schedules of athletic events and meetings which the applicant said were promoted via broadcast on the day of each event from Springfield.

22.     The evidence from Mr Brown of Queensland Running confirmed his association used the applicant’s broadcast but failed to indicate the regularity of transmissions from the Springfield site. Ms Rickett of Logan City Athletics Club Inc stated in a letter dated 27 August 2004 that her association “utilised the services of FM88 every Saturday morning between 10am and 11am for the past 10 years.” On a number of occasions the ACMA attempted to ascertain whether such broadcasts were specifically from the Springfield site. Ms Rickett did not reply.

23.     I am uneasy accepting broadcasts from the Springfield site occurred with reasonably regularity as set out in s 4.11(1)(b) of the Declaration. Even if I were to give the applicant the benefit of the doubt and accept broadcasts were reasonably regular, the applicant still fails to satisfy all conditions of the licence under the Determination.

24.     Section 4.11(1)(c) of the determination requires the holder of a LPON licence to keep records of the commencement, hours of operation and provision of the service. In his letter to the ACMA of 22 December 2004, Mr Shaw admits that he had not been maintaining the records as required. He was of the belief the maintenance of such records was the responsibility of third parties utilising his service.

Exercise of discretion to cancel

25. Section 128 of the act states the ACMA may cancel an apparatus licence. The Tribunal is not bound to cancel if the licence holder has not complied with the terms of its licence.

26.     The licensing regime was apparently devised to ensure that the radio spectrum – a limited and valuable resource – was allocated to those individuals and businesses that would make best use of it. If conditions are not complied with, the decision-maker is required to consider whether someone else would make better use of that portion of the spectrum in the circumstances.

27.     The applicant on behalf of the licensee did not give cogent reasons for keeping the LPON licence. He did not provide an undertaking that the direction would be complied with in the future due to changes the licensee had made or intends to make to the broadcast operations, for example.

28.     In the absence of other arguments, there is no reason to depart from the underlying policy of the Radiocommunications Act 1992 in this case. The discretion to cancel should be exercised against the licensee.

CONCLUSION

29.     There was some question over the motives of the complainant in bringing the complaint to the ACMA. I am satisfied the cancellation of the LPON licence has been in accord with the legislation and relevant Determination.

30.     I note the ACMA has been more than accommodating in granting extensions of time to the applicant to enable evidence to be produced. The ACMA has also gone to some lengths to obtain material from the applicant’s referees.

31.     On the evidence before me I am not satisfied Celestial Industries Pty Ltd has complied with the conditions of the LPON licence. The applicant has not been able to show that broadcasts did occur with reasonable regularity from the Springfield site (s 4.11(1)(b)) and has also failed to maintain records as required under s 4.11(1)(c) of the Determination. I am not aware of any reason why the licence should not be cancelled.

32.      The decision under review is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:      Sam J Appleton

Date of Hearing  18 August 2005
Date of Decision  12 September 2005
Mr Jeffery Shaw represented Celestial Industries Pty Ltd.
The respondent was represented by Ms Bernadette Day.