W & A Willmington Pty Ltd and Australian Communications and Media Authority
[2020] AATA 2102
•7 July 2020
W & A Willmington Pty Ltd and Australian Communications and Media Authority [2020] AATA 2102 (7 July 2020)
Division: General Division
File Number(s): 2019/3873
Re:W & A Willmington Pty Ltd
APPLICANT
And Australian Communications and Media Authority
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:7 July 2020
Place:Sydney
The decision of the Australian Communications and Media Authority, made 25 February 2019, to cancel the following licences issued to W & A Willmington Pty Ltd (ACN: 28107204179):
o12185871/1,
o483337/1,
o1182888/1,
o1182898/1,
o1182900/1,
o1182899/1,
o1218839/1,
o1218781/1,
o1951660/1,
o1951661/1,
o1955559/1,
o1955560/1,
o1958467/1, and
o9862318/1
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” – decision affirmed
LEGISLATION
Broadcasting Services Act 1992 (Cth) s 18
Radiocommunications Act 1992 (Cth) ss 125, 128
CASES
Futrends Pty Ltd and Australian Communications and Media Authority [2020] AATA 987
Shaw and Australian Communications Authority [2005] AATA 882SECONDARY MATERIALS
Radiocommunications Licence Conditions (Broadcasting Licence) Determination 2015
Australian Communications Authority (LPON Transmitter Licences) Direction No. 2 of 2000
REASONS FOR DECISION
Deputy President J W Constance
7 July 2020
INTRODUCTION
Over a period of nine years, commencing on 1 June 2008, the Applicant obtained 14 broadcasting licences under the Broadcasting Services Act 1992 (Cth) (the Act). These were licences to operate Low Power Open Narrowcasting (LPON) services. The Applicant held other broadcasting licences which are not the subject of these proceedings.
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 Radiocommunications Act1992 (Cth) (the Radiocommunications Act).
If the holder of a LPON licence contravenes a condition of a licence the Respondent has a discretion to cancel the licence.[1]
[1] Sections 125 and 128 of the Radiocommunications Act.
On 15 February 2019 the Respondent cancelled each of the 14 LPON licences on the ground that the Applicant had contravened a licence condition by “failing to provide the service with reasonable regularity for the duration of the licence”.[2] The Applicant sought review of this decision and, on 18 June 2019, the Respondent affirmed the decision to cancel the licences.[3]
[2] Exhibit R1, 153.
[3] Exhibit R1, 11.
The Applicant has applied to the Tribunal to review the decision to cancel the licences (the reviewable decision).
For the reasons which follow the reviewable decision will be affirmed.
BROADCASTING SERVICES ACT 1992 (CTH)
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
This Determination is made under the Radiocommunications Act.
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.
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
This Direction (the Direction) was made under the Australian Communications Authority Act 1997 (Cth) and provides, in part:
10(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.
10(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
The following facts, taken from the summary provided by the Respondent in its Statement of Facts and Contentions,[4] 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.
[4] Dated 20 November 2019.
[31] The following evidence is before the Tribunal about the regularity of the provision of services under the Licences (compiled from the applicant’s transmissions log (T19, 166 to 167), and a table containing information about the licences (T20, 172 to 173).
[32] Licence 1 (Number 1218587/1), is for operations from 95 Great Western Highway, St Marys, NSW 2760. The date the licence was initially issued was 1 June 2008. Since that time, the evidence of transmissions under that licence is as follows:
- 2008 to 2014: nil transmissions
- 2015: 7 hours (on 1 day in September)
- 2016: 7 hours (on 1 day in September)
- 2017: 8 hours (on 1 day – month not specified)
- 2018: 16.5 hours (on 1 day in September and 1 day in December)
[33] Licence 2 (Number 483337/1), is for operations from Blacktown City Council, Flushcombe Street, Blacktown, NSW 2147. The date the licence was initially issued was 1 February 2009. Since that time, the evidence of transmissions under that licence is as follows:
- The applicant claims that this licence was operating ‘fulltime’ during the period 1 September 2009 until 14 November 2014
- 2015: 19 hours (over 2 consecutive days in March)
- 2016: 19 hours (over 2 consecutive days in April)
- 2017: 17 hours (over 2 consecutive days in March)
- 2018: 23 hours (on 7 and 8 April and 7 October)
- 2019: nil transmissions
[34] Licence 3 (Number 1182888/1), is for operations from 26-28 Katoomba Street, Katoomba, NSW 2780. The date the licence was initially issued was 1 December 2008. Since that time, the evidence of transmissions under that licence is as follows:
- 2008 to 2017: nil transmissions
- 2018: 7.75 hours (on 1 day)
- 2019: nil transmissions
[35] Licence 4 (1182898/1), is for operations from 39 Cook Road, Wentworth Falls, NSW 2782. The date the licence was initially issued was 1 December 2008. Since that time, the evidence of transmissions under that licence is as follows:
- 2008 to 2017: nil transmissions
- 2018: 8 hours (on 1 day)
- 2019: nil transmissions
[36] Licence 5 (Number 1182900/1), is for operations from Lawson Bush Fire Brigade, Yileena Ave, Lawson, NSW 2783. The date the licence was initially issued was 1 December 2008. Since that time, the evidence of transmissions under that licence is as follows:
- 2008 to 2018: nil transmissions
- 2019: 8 hours (on 1 day)
[37] Licence 6 (Number 1182899/1), is for operations from Railway Site, Blackheath, NSW 2785. The date the licence was initially issued was 1 December 2008. Since that time, the evidence of transmissions under that licence is as follows:
- 2008 to 2018: nil transmissions
- 2019: 6.25 hours (on 1 day)
[38] Licence 7 (Number 1218839/1), is for operations from Railway Station, Linden, NSW 2778. The date the licence was initially issued was 1 June 2008. Since that time, the evidence of transmissions under that licence is as follows:
- 2008 to 2017: nil transmissions
- 2018: 6 hours (on 1 day)
- 2019: nil transmissions
[39] Licence 8 (Number 1218781/1), is for operations from Total Fuels, 563 Bells Ln, Kurmond, NSW 2757. The date the licence was initially issued was 1 June 2008. Since that time, the evidence of transmissions under that licence is as follows:
- 2008 to 2017: nil transmissions
- 2018: 18 hours (over 2 days, 1 in September and 1 in November)
- 2019: 6.5 hours (on 1 day in February)
[40] Licence 9 (Number 1951660/1), is for operations from Optus Site, Bilpin, 2482, Bells Line of Road, NSW, 2758. The date the licence was initially issued was 1 July 2012. Since that time, the evidence of transmissions under that licence is as follows:
- 2012 to 2017: nil transmissions
- 2018: 8 hours (on 1 day)
- 2019: nil transmissions
[41] Licence 10 (Number 1951661/1), is for operations from Communications site, Charleys Road, Mount Tomah, NSW, 2786. The date the licence was initially issued was 1 July 2012. Since that time, the evidence of transmissions under that licence is as follows:
- 2012 to 2017: nil transmissions
- 2018: 7.25 hours (on 1 day)
- 2019: nil transmissions
[42] Licence 11 (Number 195559/1), is for operations from Telstra Exchange, Mount Wilson, NSW, 2786. The date the licence was initially issued was 1 October 2012. Since that time, the evidence of transmissions under that licence is as follows:
- 2012 to 2018: nil transmissions
- 2019: 4 hours (on 1 day)
[43] Licence 12 (Number 1955560/1), is for operations from 174 Mahons Creek Road, Yarramundi, NSW, 2753. The date the licence was initially issued was 1 October 2012. Since that time, the evidence of transmissions under that licence is as follows:
- 2012-2017: nil transmissions
- 2018: 8 hours (on 1 day in October)
- 2019: 6 hours (on 1 day in February)
[44] Licence 13 (Number 1958467/1), is for operations from 715 Blaxlands Ridge Rd, Yarramundi, NSW 2758. The date the licence was initially issued was 3 January 2013. Since that time, the evidence of transmissions under that licence is as follows:
- 2013-2017: nil transmissions
- 2018: 8 hours (on 1 day)
- 2019: nil transmissions
[45] Licence 14 (Number 9862318/2), is for operations from 3356 Putty Road, Colo Heights, NSW 2775. The date the applicant became the licensee was 14 April 2017. Since that time, the evidence of transmissions under that licence is as follows:
- 2017 and 2018: nil transmissions
- 2019: 4.5 hours (on 1 day).
…
[13] The respondent received a complaint, dated 22 August 2007, raising concerns with the applicant’s compliance with its licence conditions, including that licences were not operating and only 2 sites had an active carrier (T3, 29).
[14] On 25 August 2017, the respondent wrote to the applicant regarding a complaint about 20 licences held by the applicant, including all 14 of the Licences (T3). The applicant was invited to provide evidence that it was complying with the conditions, or a reason why it was not complying with conditions and a date by which it would be. The applicant was also notified of the matters the respondent considers when it decides whether or not to cancel a licence, and asked to provide evidence about these factors.
[15] On 22 September 2017, the applicant responded (Supplementary T Documents, T21). It advised that:
[15.1] It had been having issues ‘with getting program to some of the sites’, but that it
had been talking to satellite providers to solve this problem.
[15.2] It anticipated that once there was an arrangement with the satellite providers,it could have 2 sites up and running per month, with all sites running before the end of 2018.
[15.3] It could not have them up and running before then because of the cost of equipment and site rentals.
[15.4] It would be willing to hand back any licences not running by the end of 2018.
[15.5] It purchased a licence in 2017, which has offered to transfer back to the original owner.
[16] On 9 October 2017, the respondent wrote to the applicant asking it to particularise which licences were operational and which were not, and advising that a 14 month timeframe was too long to be ensuring compliance with conditions (T5).
[17] On 30 October 2017, the applicant advised that it had 4 licences which were providing a service (2 of those licences did not form part of the original complaint and all 4 are not the subject of this proceeding) (T6). The applicant gave an assurance that it would have all sites operational by 31 March 2018, but that there were 4 licences it could not have running before 31 March 2018, so it would be willing to surrender those licences (those licences are not the subject of this proceeding). The applicant advised that it had equipment on 2 sites (Blacktown and St Marys) but that these sites had not been operating for more than 6 months due to problems with the sites. The applicant also advised that it could not agree terms with some of the site owners.
[18] As a result of the applicant’s assurances, the respondent decided not to take further action at that time (T7). This was conveyed in a letter dated 20 November 2017 (T8).
[19] On 27 March 2018, the applicant gave a statutory declaration stating that all the Licences ‘have been on air as per ACMA requirements’ (T9). The applicant also provided a USB of videos from the relevant transmitter sites on 25 and 26 March 2018, in which the Managing Director of the applicant tunes a car radio to the relevant frequency, and then shows the location from a GPS system. However, no details of the time and length of the transmissions was provided.
[20] On 10 April 2018, the respondent received a second complaint about the applicant’s compliance with the conditions of its licences (T11, 77).
[21] Between 29 May 2018 and 1 June 2018, the respondent conducted field work, which indicated that none of the sites the subject of the Licences were broadcasting on the day the field work was done (T10).
[22] On 27 June 2018, the respondent advised the applicant of the outcome of its fieldwork and raised concerns that the applicant was not complying with the licence conditions (T11). The applicant was invited to make submissions on the allegations made against it.
[23] On 30 July 2018, the applicant responded and submitted (T12):
[23.1] That based on the definition of ‘narrowcasting services’ and a statement purportedly from ‘the ACMA’, the applicant believed it was not contravening its licence conditions.
[23.2] The applicant could not reach agreement with the Blacktown council about the amount of rent required for one transmitter.
[23.3] The applicant was in negotiations with businesses in Katoomba to move the location of another of its transmitter.
[23.4] The Blacktown and Katoomba licences will be on air permanently.
[24] On 4 September 2018, the respondent sent a letter, noting that the applicant had not substantiated its claims to be broadcasting with reasonable regularity as it had not provided records of commencement, hours of operation and provision of relevant services (T13). The respondent also raised questions about the applicant’s compliance with the licence requirement to keep relevant records of the operation of the Licences. The applicant was invited to provide records of the commencement, hours of operation and provision of services for the Licences (T13).
[25] On 2 October 2018, the applicant provided a further response, asserting that the Licences were operating and meeting the respondent’s requirements (T15). No further records were provided. The applicant advised that ‘Vintage FM’ is the main station broadcast, but this is not all that is broadcast. The applicant advised that it had made transmissions for the St Mary’s Spring Festival in September. The applicant also stated that it was seeking to move the transmission sites of the Blacktown, Katoomba, Wentworth Falls and Mount Tomah transmission sites.
[26] Between 30 January 2019 and 1 February 2019, the respondent conducted field work, which indicated that none of the sites the subject of the Licences were broadcasting on the day the field work was done (T16).
On 25 February 2019 the Respondent cancelled the licences.
Correspondence between Mr Allen, a Member of the Executive of the Australian Narrowcast Radio Association, and the Respondent
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]
[5] Exhibit R1, 197.
This request did not relate to the licences in question in this application but the Respondent’s response is relied upon by the Applicant.
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)[6]
[6] Exhibit R1, 197.
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)[7]
[7] Exhibit R1, 199.
This correspondence was brought to the attention of the Applicant.
The evidence of Mr Willmington, Managing Director of the Applicant
Mr Willmington gave evidence at the hearing and confirmed the following in a written submission to the Tribunal dated 25 September 2019:[8]
[8] Exhibit A1.
Notification of a complaint regarding the absence of LPON services for licences held by W & A Willmington Pty Ltd was received from the ACMA on 25 August 2017. The company was aware that some services were not active mainly due to difficulty in receiving a quality signal for rebroadcast. Action began immediately to rectify the problem and the company communicated with the ACMA it wished to relocate some licence sites. These changes were brought about mainly through negotiating more favourable locations available adjacent to the initial nominated sites, as per the licence details. Again, on 30th July 2018 I requested approval to relocate transmitter sites, and on 3 August 2018, ACMA Inspector Danielle Head advised (by e-mail) “that while a licence remains under investigation, applications for licence variations may not be processed”. Also John Davey ACMA Investigator wrote on 9 October 2017 “Licences cannot be transferred while an LPON provision of service investigation is ongoing”. In a subsequent submissions including one dated 28th September 2018 I again stated that I was waiting for AMCA approval to relocate transmitter sites for licences as noted in Blacktown, Katoomba, Wentworth Falls and Mount Tomah.
It is clearly evident that my company acted immediately and responsibly to correct the stated problems yet through lack of communication from the ACMA the request to relocate four sites has been inexplicably delayed which has restricted the company from getting those licences on.[9]
[9] Exhibit A1, [2].
Item Licence No. Licensed Site ACMA denied approval to relocate 2 483337/1 62 Flushcombe Road, Blacktown 140 metres from allocated site 3 1182888/1 26-28 Katoomba Street, Katoomba 230 metres from allocated site 4 1182898/1 39 Cook Road, Wentworth Falls 600 metres from allocated site 10 1951661/1 Charleys Road, Mount Tomah 110 metres from allocated site
In relation to the licences 1218587/1 (item1) and 483337/1 (item 2) the Applicant provided LPON special event services at the St Marys Spring Festival and the Blacktown Show respectively.
ISSUES FOR DETERMINATION
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
It was argued on behalf of the Applicant that:
·it has not “hoarded” licences;
·a service of “reasonable regularity” was being provided under each licence;
·all services were freely available for reception under the Authority’s Open Narrowcasting Guidelines and advice provided by the Authority;
·the Authority reported that “a broadcast could be heard” in respect of licences items 1-3,6 and 8-14 which indicates that the Applicant was compliant with the relevant regulations governing those services;
·requests to transfer the sites of Items 2, 3, 4 and 10 were not agreed to by the Authority;
·the following Table sets out service details which indicate why each licence should not be revoked:
Item Licence # Site Location Service details 1 1218587/1 95 Great Western Highway, St Marys FM Broadcast received and identified by ACMA St Marys Spring Festival - Special Event Site Broadcasts - minimum ACMA requirement 2 483337/1 62 Flushcombe Road, Blacktown FM Broadcast received and identified by ACMA Blacktown Show - Special Event Request relocation of TX site 140 metres Site Broadcasts - minimum ACMA requirement 3 1182888/1 26-28 Katoomba Street, Katoomba FM Broadcast received and identified by ACMA Request relocation of TX site 230 metres Site Broadcasts - Minimum ACMA requirement 4 1182898/1 39 Cook Road, Wentworth Falls Request relocation of TX site 600 metres Site Broadcasts - Minimum ACMA requirement 5 1182900/1 LBFB, Yileena Avenue, Lawson Site Broadcasts - Minimum ACMA requirement 6 1182899/1 Railway site, Blackheath FM Broadcast received and identified by ACMA Site Broadcasts - Minimum ACMA requirement 7 1218839/1 Railway Station, Linden Site Broadcasts - Minimum ACMA requirement 8 218781/1 TFS, 563 Bells Line of Road, Kurmond FM Broadcast received and identified by ACMA Site Broadcasts - Minimum ACMA requirement 9 1951660/1 2482 Bells Line of Road, Bilpin FM Broadcast received and identified by ACMA Site Broadcasts - Minimum ACMA requirement 10 1951661/1 Charleys Road, Mount Tomah FM Broadcast received and identified by ACMA Request relocation of TX site 110 metres Site Broadcasts - Minimum ACMA requirement 11 1955559/1 Telstra Exchange, Mt Wilson FM Broadcast received and identified by ACMA Site Broadcasts - Minimum ACMA requirement 12 1955560/1 174 Mahons Creek Road, Yarramundi FM Broadcast received and identified by ACMA Site Broadcasts -
Minimum ACMA requirement13 1958467/1 715 Blaxlands Ridge Road, Blaxlands Ridge FM Broadcast received and identified by ACMA Site Broadcasts - Minimum ACMA requirement 14 9862318/2 3356 Putty Road, Colo Heights FM Broadcast received and identified by ACMA Site Broadcasts - Minimum ACMA requirement Issue1: Has the Applicant breached a condition or conditions of any of the licences?
Provision of the service with reasonable regularity for the duration of the licence
The Applicant relies on the advice provided by the Authority to Mr Allen on 15 February 2018 and argues further that transmission for short periods satisfies the requirement of “reasonable regularity”. I do not agree.
On the basis of the evidence I have referred to I am satisfied that:
·Licence 1: there were no broadcasts for over seven years followed by broadcasts on only five days from September 2015 to December 2018;
·Licence 2: from March 2015 to October 2018 there were broadcasts on only nine days;
·Licence 3: from 2008 to 2019 there was a broadcast on only one day;
·Licence 4: from 2008 to 2019 there was a broadcast on only one day;
·Licence 5: from 2008 to 2019 there was a broadcast on only one day;
·Licence 6: from 2008 to 2019 there was a broadcast on only one day;
·Licence 7: from 2008 to 2019 there was a broadcast on only one day;
·Licence 8: from 2008 to 2019 there were broadcasts on only three days;
·Licence 9: from 2012 to 2019 there was a broadcast on only one day;
·Licence 10: from 2012 to 2019 there was a broadcast on only one day;
·Licence 11: from 2012 to 2019 there was a broadcast on only one day;
·Licence 12: from 2012 to 2019 there were broadcasts on only two days;
·Licence 13: from 2013 to 2019 there was a broadcast on only one day;
·Licence 14: from 2017 to 2019 there was a broadcast on only one day.
In Futrends Pty Ltd and Australian Communications and Media Authority[10] I considered the meaning of the words “with reasonable regularity for the duration of the licence”. In the following eight paragraphs I repeat what I said in that matter.
[10] [2020] AATA 987.
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.
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.
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.
…
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.
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.[11] 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. [Footnote omitted].
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.
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.
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.[12]
[11] See Shaw and Australian Communications Authority [2005] AATA 882.
[12] Paragraphs 34-36, 41-45.
I am satisfied that none of the 14 licences were used to provide a service with reasonable regularity.
The strongest case that there was any regularity in transmission is in relation to Licences numbered 1 and 2, in which cases there were transmissions on days approximately one year apart. However, considering that the purpose of the provision of such licences is to provide broadcast services to members of the public, such services cannot be said to have been provided with reasonable regularity.
Further, in both cases there were periods of at least one year when no services were broadcast. In those circumstances broadcasting did not take place “over the duration of the licence.”
Under the remaining licences services were provided for no more than three days and, in most cases, from only one day over several years. I am satisfied that in none of these cases was service provided regularly.
I am satisfied that the Applicant breached a condition of each of the subject licences.
Should the discretion to cancel any of the licences be exercised?
Consideration of the matters required by subsection 10(4) of the Direction (see paragraph 11 above) does not significantly assist the Applicant:
·the Applicant failed to provide transmissions under each of the licences for very lengthy periods of time;
·the Applicant has not provided evidence of the nature of the equipment it has available to provide transmissions from the various sites;
·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;
·prior to the cancellation of the licences the Applicant did not keep the records required of it.[13]
[13] Exhibit R1, 164.
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.
For the reasons stated above the discretion to cancel the subject licences should be exercised.
CONCLUSION
The decision of the Australian Communications and Media Authority, made 25 February 2019, to cancel the following licences issued to W & A Willmington Pty Ltd (ACN: 28107204179):
o12185871/1,
o483337/1,
o1182888/1,
o1182898/1,
o1182900/1,
o1182899/1,
o1218839/1,
o1218781/1,
o1951660/1,
o1951661/1,
o1955559/1,
o1955560/1,
o1958467/1, and
o9862318/1
will be affirmed.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of
................................[SGD]........................................
Associate
Dated: 7 July 2020
Date(s) of hearing: 1 April 2020 Applicant: In person Solicitors for the Respondent: J Hutton, Australian Government Solicitor
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Breach
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Remedies
0
2
0