W & A Willmington Pty Ltd and Australian Communications and Media Authority

The Administrative Appeals Tribunal considered an application by W & A Willmington Pty Ltd to review a decision by the Australian Communications and Media Authority (ACMA) to cancel several Low Power Open Narrowcasting (LPON) licences held by the company. The ACMA's decision was based on alleged breaches of licence conditions, specifically the requirement to provide the licensed service with "reasonable regularity."

The primary legal issues before the Tribunal were whether the Applicant had breached any conditions of its LPON licences, and if so, whether the ACMA's discretion to cancel those licences should have been exercised. The Applicant contended that it had not "hoarded" licences, that a service of "reasonable regularity" was being provided, and that delays in relocating transmitter sites, due to ACMA's actions, had restricted its ability to operate the licences.

The Tribunal found that the Applicant had breached the condition requiring the provision of service with "reasonable regularity." Applying the ordinary meaning of "regular" as "used, done, or happening on a frequent or habitual basis," and considering the purpose of the condition to prevent licences from being hoarded and unused, the Tribunal determined that the broadcasts provided by the Applicant were not habitual. The evidence demonstrated significant periods of inactivity for most licences, with broadcasts occurring on only a handful of days over many years. The Tribunal concluded that transmissions for very short periods, or in an attempt to merely meet the conditions, did not constitute the provision of a service to listeners.

Consequently, the Tribunal affirmed the ACMA's decision to cancel the licences, finding that the Applicant had failed to provide the services with reasonable regularity for the duration of the licences.