Star Broadcasting Network Pty Limited and Australian Broadcasting Authority
[2003] AATA 1348
•23 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1348
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1358
GENERAL ADMINISTRATIVE DIVISION
)
Re STAR BROADCASTING NETWORK PTY LIMITED
Applicant
And AUSTRALIAN BROADCASTING AUTHORITY
Respondent
DECISION
Tribunal Justice G Downes, President Date23 December 2003
PlaceSydney
Decision 1. Set aside the decision under review.
2. The Tribunal decides that no condition should be imposed.
......................................
President
CATCHWORDS
RADIOCOMMUNICATIONS – commercial broadcasting licence – imposition of additional licence condition preventing promotion of Ipswich radio station as Brisbane station – Broadcasting Services Act 1992 (Cth) s 43 – condition not ultra vires – condition inappropriate – unwarranted interference with competition – confusing or uncertain – difficult to comply with – difficult to enforce.
Broadcasting Services Act 1992 (Cth) s 3, s 3(1)(a), s 3(1)(b), s 3(1)(g), s 4(1), s 5, s 6(1), s 14, s 26, s 42(2), s 43, s 44, s 44(2), s 154, Sch 2 cl 8
Australian Broadcasting Tribunal v Saatchi & Saatchi Corporation (Vic) Pty Ltd (1985) 10 FCR 1
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal (1985) 156 CLR 1REASONS FOR DECISION
23 December 2003
SUMMARY
Justice G Downes, President
1. Star Broadcasting Network Pty Ltd operates a commercial radio broadcasting station from Ipswich near Brisbane. It has a licence allocated by the Australian Broadcasting Authority. The radio signal from the station can be heard in Brisbane. The Authority has purported to impose a condition requiring Star Broadcasting to market and promote the radio station as a station for the Ipswich area only. I have rejected an argument that conditions must relate to what is broadcast but I have found that no condition such as that proposed should be imposed in this case.
BACKGROUND
2. The Authority is established under s 154 of the Broadcasting Services Act 1992.. The Authority is charged with the implementation and supervision of the regulatory regime which operates under the Act. By s 5 of the Act it is charged with producing “regulatory arrangements that are stable and predictable”, with “monitoring [inter alia] the broadcasting industry” and “deal[ing] effectively with breaches of the rules”. Section 3 specifies objects of the Act, which include:
“(a)to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; and
“(b)to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs; and
…
“(g)to encourage providers of commercial and community broadcasting services to be responsive to the need for a fair and accurate coverage of matters of public interest and for an appropriate coverage of matters of local significance”
Subsection 4(2) of the Act requires the Authority to regulate broadcasting in a manner that:
“enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services”.
3. Subsection 26(1) of the Act directs the Authority to prepare written licence area plans that determine the number and characteristics, including technical specifications, of broadcasting services that are to be available in specified areas of Australia. The section provides that the Authority is to use broadcasting services bands in the preparation of the licence area plans. “Broadcasting services bands” are the part of the radio frequency spectrum designated as being primarily for broadcasting purposes (subs 6(1)).
4. The Authority developed licence area plans for the Ipswich area at the same time as it developed licence area plans for the Brisbane, Gold Coast, Gimpie, Lismore, Murwillumbah and Nambour areas. The Brisbane, Ipswich and Toowoomba/Warwick licence areas overlap. Part of the western most reach of the Brisbane licence area is within the eastern most reach of the Ipswich licence area. Part of the western most reach of the Ipswich licence area is in the eastern most reach of the Toowoomba/Warwick licence area.
5. Star Broadcasting is the holder of a commercial radio broadcasting licence. The licence was originally issued under the predecessor of the Act. When the Act came into force on 5 October 1992 the licence continued in force under the Act. Star Broadcasting purchased the licence on 30 October 1998 from the original holder. The licence authorised service to an area which comprised Boonah Shire, Ipswich City, Laidley Shire and Moreton Shire local government areas and parts of the then Esk Shire and Gatton Shire local government areas. The station has been known by various call signs such as 4QFM and 4MIX. It is now promoted as River 94.9.
6. When the Authority was developing the local area plan for the Ipswich area Star Broadcasting and its predecessor requested the Authority to amalgamate the Ipswich and Brisbane licence areas. They asked to be allowed to relocate the stations transmitter from an area called the Knobby, in the centre of the Ipswich area, to Mt Coot-tha which is closer to Brisbane and is the site of the transmitters for the Brisbane licence area. The application for amalgamation was refused, as was the application to move the transmitter. However, the Authority did accept that the applicant was unable adequately to service the existing licensing area. The station was allocated a different frequency (94.9MHz) and authorised to broadcast at a maximum of 50 kW, with a specified directional radiation pattern.
7. The Ipswich licence area is irregularly shaped. It may be described as broadly oval and aligned north north west to south south east. However, the boundaries are full of spurs and indentations. The part of the Brisbane licence area which overlaps with the Ipswich licence area represents a substantial intrusion into the oval with the City of Ipswich in the centre of the intrusion. To be clear, the City of Ipswich is within the Brisbane licence area as well as the Ipswich licence area.
8. Transmitted radio signals do not obey local government boundaries or even the boundaries of licence area plans established by the Authority. However, some attempt can be made to confine signals to irregular licence areas by controlling the power of the signal in different directions. Nevertheless, to achieve coverage at the border of a licence area requires an effective signal to be receivable outside the licence area. The directional radiation pattern determined for the Ipswich licence area undoubtedly seeks to maximise the reception in the area and to minimise the reception outside the area. Accordingly, the actual power ranges from 2 kW to 50 kW. Predicted coverage under the licence conditions was calculated by the Authority. It plotted the predicted coverage on a map. The map is divided into grades of service: potentially excessive, urban grade, suburban grade and rural grade. A small potentially excessive grade is shown around the transmitter which appears to be near the geographical centre of the licence area. Around this area is urban grade reception. This extends more to the north west and south east than to the north east and south west, no doubt as a result of directional differences in the power of the signal. This urban grade signal, according to the coverage map, only exists outside the licence area to a very small extent over very small areas adjacent to the boundary. Suburban grade reception extends around this area, particularly in the north and south. Again it is largely confined to the licence area except for an irregular and patchy area south of the city of Brisbane. Rural grade service is predicted to be more extensive, but it by no means reaches all of the balance of the licence area. The rural grade service is predicted to reach Toowoomba in the west, much of Brisbane in the east, although patches where there will be no reception are shown, particularly east of the centre of Brisbane. In the south east rural grade reception is shown for most of the area known as Logan City. No service is shown as reaching the Gold Cost. The evidence before us suggests that the predicted coverage was conservative and that the actual coverage is much greater.
9. The result is that by far the best coverage from Star Broadcasting’s Ipswich radio station is found in the Ipswich licence area. Lower quality signal can be received in parts of Brisbane, Toowoomba, Logan City and surrounding areas. Reception may not be satisfactory for comfortable listening in all these areas. Reception in moving vehicles may be erratic. What is clear is that the signal is concentrated in the Ipswich licence area and is at its highest quality there.
CONDITIONS
10. By subs 42(2) of the Act all commercial radio broadcasting licences are subject to the conditions set out in Part 4 of Schedule 2 of the Act and such further conditions as are imposed under s 43 of the Act. The conditions in Schedule 2 recognise that some radio signals will cross the boundaries of Licence areas and be receivable in other licence areas. Clause 8 relevantly provides:
“(2)Each commercial broadcasting licence is also subject to the following conditions:
(a)the licensee will provide a service that, when considered together with other broadcasting services available in the licence area of the licence (including another service operated by the licensee), contributes to the provision of an adequate and comprehensive range of broadcasting services in that area
…
(c)Each commercial radio broadcasting licence is also subject to the condition that the licensee will not provide commercial radio broadcasting services under the licence outside the licence area of the licence unless:
(a)the provision of those services outside that licence area occurs accidentally; or
(b)the provision of those services outside that licence area occurs as a necessary result of the provision of commercial radio broadcasting services within the licence area; or
(c)both:
(i)the licensee satisfies the ABA that the provision of those services outside that licence area occurs in exceptional circumstances; and
(ii)the ABA has given permission in writing; or
(d)all of the following subparagraphs apply:
(i)the first-mentioned licensee satisfies the ABA that there is a person (the eligible person) who is in a commercial radio broadcasting licence area (the second licence area) that is not the same as the first-mentioned licence area and who is not receiving adequate reception of a commercial radio broadcasting service provided by a commercial radio broadcasting licensee for the second licence area;
(ii)the provision of the first-mentioned services outside the first-mentioned licence area occurs only to the extent necessary to provide adequate reception of the first-mentioned services to the eligible person;
(iii)the ABA has given permission in writing.”
11. Section 43 authorises the Authority to impose additional licence conditions and to vary or revoke licence conditions other than the conditions in Schedule 2. Section 44 provides:
“44 Matters to which conditions may relate
(1)Conditions of commercial television broadcasting licences and commercial radio broadcasting licences must be relevant to the broadcasting services to which those licences relate.
(2)Without limiting the range of conditions that may be imposed, the ABA may impose a condition on a commercial television broadcasting licensee or a commercial radio broadcasting licensee:
(a)requiring the licensee to comply with a code of practice that is applicable to the licensee; or
(b)designed to ensure that a breach of condition by the licensee does not recur.”
12. In determining its licence area plans for Ipswich and Brisbane the Authority decided that there should continue to be only one service available for the Ipswich licence area. It determined that there should be two new stations for Brisbane. Both would broadcast from Mt Coot-tha. One licence would be granted immediately and the other after three years. The first licence was auctioned pursuant to a system established by the Authority pursuant to s 36. The successful bid was $67 million and a licence was allocated. Star Broadcasting was an under bidder. The information package made available to applicants stated that the Brisbane and Ipswich licence areas overlapped. It noted that the population of the overlap area was 118, 915 or 7.96% of the total population of the Brisbane licence area. The total population of the Brisbane licence area is almost 10 times that of the Ipswich licence area.
13. The Authority claims that Star Broadcasting promotes its Ipswich radio station as a radio station for the Brisbane area. It certainly broadcasts advertising for businesses in the Brisbane area. It makes on air references to activities in the Brisbane area. However, it also advertises Ipswich and Toowoomba businesses and makes on air references to activities in those areas. Star Broadcasting disputes at least the emphasis which the Authority places on the level of Brisbane content in the station’s broadcasting.
14. The Authority decided to impose an additional condition on Star Broadcasting’s licence in an attempt to remedy what it perceived to be the inappropriate promotion of a broadcasting station in one licence area as if it was a broadcasting station in another licence area.
15. As first formulated the proposed additional condition was as follows:
“The licensee must ensure the service remains a broadcasting service for the Ipswich licence area by:
1.marketing and promoting the service as a radio service for the Ipswich licence area:
2.regularly referring to Ipswich in its on-air promotions for the service:
3.not marketing or promoting the service, either on-air or in publicity or sales material, as a service targeting an area, city, town, suburb or other location, unless that area, city, town, suburb or other location is wholly within the Ipswich licence area.”
16. Prior to the hearing the Authority substituted a different form of proposed condition. The matter was debated before us as if the new condition was the condition under review. The new condition is as follows:
“The licensee must ensure the service remains a broadcasting service for the Ipswich RA1licence area by:
1.marketing and promoting the service as a radio service for an area which is confined to, and does not extend beyond, the Ipswich RA1 licence area;
2.referring to Ipswich in on-air station identifications for the service at least twice every hour;
3.not representing, by marketing or promotion or any other way, that the service is a service for an area outside the Ipswich RA1 licence area, and in particular, without limiting the foregoing, not representing that the service is a service for Brisbane generally.
In this condition, station identification means matter broadcast periodically to identify the service to its audience.”
17. Star Broadcasting challenged the proposed condition on the ground that it was partly ultra vires s 44 and also on grounds of merit.
THE ULTRA VIRES ARGUMENT
18. The ultra vires argument is that new conditions 1 and 3 are not “relevant to the broadcasting services to which those licences relate “ (subs 44(2)). “Broadcasting service” relevantly means “a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service” (subs 6(1)). It is said that the central focus of the definition is on the delivery or transmission of programmes to persons. The definition of “commercial broadcasting services” in s 14 of the Act in which the phrase “services … that provide programs” appears is also relied upon. Counsel for Star Broadcasting made the point colourfully in his submissions by saying that broadcasting services are what come off the “stick” or “mast” or transmitter because the transmission is the delivery or provision of programs. Accordingly, conditions which relate to on-air announcements such as condition 2, are intra vires but conditions which relate to marketing and promotion, such as conditions 1 and 3, are not. Star Broadcasting recognises, however, that some marketing and promotion will be on-air. Its ultra vires submission is accordingly qualified by saying that those parts of conditions 1 and 3 which purport to regulate off-air promotion and marketing are ultra vires and invalid.
19. There is something to be said for this submission. However, when the provisions of s 44 and the definition of broadcasting services are put together it can be seen that the focus of the legislation is relevantly on “the service that delivers … programs” rather than the delivery itself.
20. Star Broadcasting relied upon the decision of the Federal Court in Australian Broadcasting Tribunal v Saatchi & Saatchi Corporation (Vic) Pty Ltd (1985) 10 FCR 1. There the court examined the extent of a function of the predecessor of the Authority “to determine the standards to be observed by licencees in respect of broadcasting or televising of programs” (see para 16(1)(d) of the Broadcasting and Television Amendment Act 1977). Bowen CJ said: “That power does not extend to the regulation of circumstances connected with the production of a programme, where those circumstances are not intrinsically related to the nature of the end product” (p 7). Fox J said: “The standard as determined may of course have to touch directly on some matters immediately antecedent to presentation. The power under consideration was not however intended to give a general control over the commercial or industrial activities of licensees” (p 17).
21. A function of determining standards in respect of the broadcasting of programs seems to me to be narrower than one of determining conditions of licensees which must be relevant to the service that delivers programs. The former emphasises what is broadcast; the latter emphasises the service that carries out the broadcasting. The word “service” is not defined in the Act although it is found in the title and frequently used in the Act. The first object of the Act refers to “promoting the availability to audiences … of a diverse range of radio and television services offering entertainment, education and information” (para 3(1)(a)). That may suggest that the services are the broadcasts. However, the Act refers again and again to “services that provide programs” which suggests that the services are not the programs themselves but the provider of the programs. The definition of “broadcasting service” in s 6 begins: “a service that delivers programs”. The noun “service” has its origins in the relationship of master and servant. Examples are the “public service” or the “armed services”. The reference is not to the activity but the actor. The phrase “broadcasting service” in the Act must have a similar sense. It refers to the entity which broadcasts, not the broadcast itself. While its central function is to broadcast the “broadcasting service” is more than that.
22. In my opinion s 44 will permit conditions which do more than control what is broadcast. The scheme of the Act, aspects of which are referred to above, gives the Authority wide powers relating to licences generally. The Authority is to establish licence areas and to designate a licence area to each licence. It seems to me to follow that conditions relating to matters associated with a licence area are conditions relevant to the broadcasting services to which the licences relate. Accordingly, the applicant’s ultra vires claim must fail.
23. I note that Star Broadcasting accepts that the second sub-condition is intra vires because it relates to what is broadcast. It would be an odd result if the Authority could preclude a licensee from broadcasting matters relating to its services but could not prevent the licensee from placing similar advertisements with newspapers, television stations and other radio stations.
THE MERITS
24. I turn to the merits of the application for review. I must make the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; (1979) 2 ALD 60 per Bowen CJ and Deane J at 24 ALR 589 to 591, 2 ALD 68 and 70) as to whether the condition proposed should be imposed on Star Broadcasting’s licence or whether some similar condition should be imposed. I am not sitting as a court determining whether the Authority’s decision involves error of law. I am sitting as a substitute for the Authority to make the decision again on its merits.
25. There is a strong legislative policy evidenced in the Act that radio stations should be confined to licence areas. The policy is evident in a number of parts of the Act and particularly in s 26. There is also a policy that there should be coverage of matters of local interest. This is one of the objects of the Act (par 3(1)(g)). However, legislative policy can be achieved by means other than conditions. The policy of confining radio stations to licence areas can be implemented by requiring transmitters to be installed in the licence area and by controlling directional strength of transmissions. The imperative from such controls will be for radio stations to address their local areas by providing coverage of matters of local significance. The question is whether these matters are sufficient for it not to be preferable for conditions to be imposed of the kind proposed.
26. I have found that the proposed conditions are intra vires. But that does not mean that they are appropriate. Although they are within power it must be recognised that requirements that a corporation publicises its services in a way determined by a regulator are intrusive requirements. How a corporation advertises its services is central to its commercial operations. Advertising will usually impact on profit. The provision of broadcasting services financed by commercial operations driven by the profit motive has always been part of broadcasting in Australia. The current legislative regime under which new broadcasting licences are auctioned to the highest bidder reinforces this. The thrust of Commonwealth legislation in recent years has been to promote competition between commercial bodies. Coercive regulation has become less common. Having said that, I recognise that coercive regulation is an important part of broadcasting policy and the Authority was established for just that purpose. Yet the subject matter which the condition imposed seeks to regulate is centrally concerned with competition. It seeks to control competitive conduct in a market place by the imposition of a control on one competitor. That may unbalance the market place.
27. The condition proposed does not in terms address competition but it must have that effect. The question is whether the importation of the condition is the proper response to the underlying problem even though it will have wider effects on competition.
28. One matter for consideration seems to me to be that the Act recognises that radio signals will spill over into adjacent licence areas. Clause 8 of Schedule 2 not only recognises this spill but imposes conditions with respect to it. Broadcasting outside the licence area is prohibited unless the broadcast is accidental or a necessary result of providing services within the licence area. It is accepted that the present coverage which Star Broadcasting has outside the licence area is within these exceptions. It follows that the reception of Star Broadcasting’s signal in the Brisbane licence area and other areas outside the Ipswich licence area is not unlawful and will continue even if the condition is imposed. There seems to me to be something odd, not to suggest misleading, about the imposition of a licence condition that a radio station must promote its service “as a radio station which is confined to, and does not extend beyond, the Ipswich RA1 licence area” when this is simply not true.
29. I am conscious of the fact that the situation under consideration is unusual. It arises because there is a very heavily populated area next to a less heavily populated area. The situation may exist around the major cities in Australia but it is still unusual. However, the fact that the situation is unusual does not necessarily call for regulatory control. When the response to such a situation is to react in a commercially predictable way it may be wrong to treat that response as a problem requiring rectification when the ultimate cause of any perceived problem is simply the population distribution in the region which is neither a problem in itself nor something that requires rectification.
30. One of the characteristics of a large metropolis surrounded by suburban areas and ultimately rural areas containing commercial centres is that there are people who live in the surrounding areas and commute to the metropolis where they work. Brisbane and its surrounds is no exception. It follows that there are people who live in the Ipswich area and work in Brisbane. The Ipswich motorway joins both areas. It will not be so simple, in the minds of at least some Ipswich residents, to put Ipswich and Brisbane in separate compartments. This factor is compounded by the overlap of the Brisbane and Ipswich licence areas and the fact that the city of Ipswich is in the centre of the overlap. It would not surprise me if motorists driving between Ipswich and Brisbane, but still in the exclusive Brisbane licence area, would be surprised to hear a statement broadcast by the radio station to the effect that it was exclusively for the Ipswich area.
31. The terms of regulatory controls should be as clear and unambiguous as possible. In Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal (1985) 156 CLR 1 (at 4) the High Court said this:
“A standard determined for a television programme must fix the quality or nature of the programme in such a away that both the licensee required to observe the standard and the court or other body called upon to decide whether it has done so can determine whether the programme answers the criteria set by the standard.”
32. I can see great difficulties in applying the proposed conditions, or indeed any conditions which seek to achieve the object of the conditions. A number of these problems were discussed during the hearing. Counsel for the Authority attempted to characterise various advertisements to explain why she said they were within or outside the prohibition in the condition. I did not find the characterisation and decision was as easy as she suggested. However, the question is not whether past conduct of the station offended against the condition but whether the radio station will be able to know what conduct does and what does not for the future.
33. I think that sub-conditions 1 and 3 create great difficulty for Star Broadcasting in connection with its promotion of its services to advertisers. It will naturally wish to point to the numbers of persons who can receive the signal both within and outside its licence area. It will have difficulty in doing this. There will no doubt be occasions when third parties are representing it in its promotional activities. It will have obligations to explain the conditions to them. To the extent to which potential advertisers are not told of the Brisbane audience the advertisers will be misinformed about the market in which they are buying. It will have to proceed very carefully with any promotional or sponsorship activity outside the licence area.
34. I find that the proposed conditions are at least confusing if not uncertain. It will be difficult for Star Broadcasting to know whether particular conduct is contrary to the conditions. The conditions will also be difficult for Star Broadcasting to enforce because persons representing the radio station will naturally wish to inform those with whom they are communicating precisely what is the audience area for the station. It cannot be said as a matter of fact that that area is confined to the Ipswich licence area. It cannot be said that it does not include the Brisbane licence area.
35. The problems I have been considering arise because the Authority is seeking to influence ordinary commercial conduct. I know that trade practices legislation seeks to achieve similar goals. But it has as its primary object the encouragement of competition. The Authority’s proposal appears to have the opposite effect. Its purpose is to uphold a statutory policy that radio stations should be confined to their licence areas. I think that care should be exercised before conditions are imposed which have the consequence of restricting free competition to achieve this legislative purpose. The fact that profit motivated and competitive conduct is recognised and even encouraged by the Act (see s 3) must be weighed against the policy of confining radio stations to licence areas. Account must also be taken of the fact that Schedule 2 recognises that signals will be received outside licence areas and accepts that such slippage does not involve any contravention of the licence.
36. There is no doubt that the Authority’s power to control where a radio station’s transmitter is located and to dictate the directional power of the signal has an important effect in limiting the extent to which signals can be received outside licence areas. It might be said to be the best means to achieve the legislative policy. This is because it actually achieves the object of limiting spillage. Requiring a radio station to deny the effect of spillage and to take no advantage of it is very much a second best way of achieving the goal. The former method is the natural way to implement the policy. The latter method is artificial.
37. The evidence satisfies me that the coverage which Brisbane stations have in the Brisbane licence area must be better than the service provided by the Star Broadcasting radio station. In this regard I rely particularly on the affidavit of Frederic Gengaroli and the map which is Annexure “A” to the affidavit. I accept that the Star Broadcasting coverage is in fact much better but it must still be the case that the reception in Brisbane of Brisbane radio stations is better than that from Ipswich.
38. The population centre of Ipswich is within the Brisbane licence area. Accordingly, Brisbane radio stations will be able to promote themselves as radio stations for that area. However, the Star Broadcasting station will have better reception there and in surrounding areas. It is likely that the Star Broadcasting station will concentrate on the area more than the Brisbane stations.
39. So far I have not referred to evidence as to how Star Broadcasting actually does promote its station both on-air and off-air. However, there is evidence before me of actual programming and of Internet and other promotion. Two cassette tapes of programming were tendered with transcripts as well as a CD-ROM. I have listened to the tapes and CD-ROM and read the transcripts. The reason I have not placed emphasis on this evidence is because I accept that the Authority, and now the Tribunal, should not be overly influenced by the current position. What may occur, as opposed to what is now occurring, is also a relevant consideration. Although I accept that there has been no breach of the existing licence conditions I do not accept that additional licence conditions can only be imposed where there have been breaches.
40. Nevertheless, I find that although there was frequent reference to Brisbane activities and advertisements for Brisbane businesses in the programmes I have heard there were also frequent references to Ipswich, Ipswich activities and advertisements for Ipswich businesses. I accept that the style “River 94.9” may, for some people, even most people, refer to Brisbane. However, Ipswich is near a river. I accept that some of the radio stations promotion is promotion of the station as a station for Brisbane. However, that is all qualified by references to Ipswich and the association of the radio station with Ipswich.
41. The second condition proposed is different to conditions 1 and 3. However, it is also intrusive, and may be difficult to implement. It will require programmes to be interrupted. I do not think that radio stations should be compelled to make on-air statements about themselves unless there is a significant case supporting such a requirement. I do not think such a case is present here. I note that, in any event, the station probably does refer to Ipswich twice each hour although not as part of “on-air station identifications”.
DECISION
42. When I take all these matters into account I find that it is not appropriate for conditions of the kind proposed to be imposed on the Star Broadcasting commercial radio licence pursuant to s 43 of the Act. I include all three conditions. I do not confine this finding to the precise conditions now proposed or previously proposed. I find that any such conditions are inappropriate. I note particularly that the broadcasting conditions allocated to the licence relating to the location of the transmitter and the directional signal strength impose limitations on the station’s ability to broadcast outside its area and encourage it to look within its area. These natural restraints are the best. I find that any conditions of the kind sought to be imposed would involve unwarranted interference with competition, are confusing or uncertain, difficult to comply with and difficult to enforce. I find that they may even require the station to make deceptive or misleading statements against its commercial interests. Care would need to be exercised before such conditions were imposed. For these reasons and the reasons appearing in the fuller discussion above I decide that no conditions of the kind proposed should be imposed. The formal decision I will make is that the decision under review is set aside and that no similar conditions calculated to ensure that the broadcasting service of Star Broadcasting remains a broadcasting service for the Ipswich RA1 licence area should be imposed.
I certify that the forty-two (42) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Garry Downes, President.
Signed: .......................................................................................
AssociateDates of Hearing: 28 and 29 October 2003
Date of Decision: 23 December 2003
Counsel for the Applicant: J Griffiths SC and J K Kirk
Solicitors for the Applicant: Blake Dawson Waldron
Counsel for the Respondent: C E Adamson SC and T L Jowett
Solicitors for the Respondent: Australian Broadcasting Authority
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