EXPLANATORY STATEMENT
Australian Communications and Media Authority Act 2005
Australian Communications and Media Authority (Annual Carrier Licence Charge) Direction 2013
Issued by the Authority of the Minister for Broadband, Communications and the Digital Economy
Authority
The Australian Communications and Media Authority (Annual Carrier Licence Charge) Direction 2013 (the Direction) is made by the Minister for Broadband, Communications and the Digital Economy (the Minister) under section 14 of the Australian Communications and Media Authority Act 2005 (the ACMA Act). Section 14 of the ACMA Act provides that the Minister may give written directions to the Australian Communications and Media Authority (ACMA) in relation to the performance of its functions and the exercise of its powers.
Purpose
The purpose of this Direction is to direct the ACMA to make determinations under subsection 14(1) of the Telecommunications (Carrier Licence Charges) Act 1997 (Carrier Licence Charges Act) which have the effect of removing the annual carrier licence charge for a licence held by a carrier that was a ‘non-participating person’ for the eligible revenue period immediately preceding the relevant financial year.
Background
Annual Carrier Licencing
Under section 13 of the Carrier Licence Charges Act, a holder of a telecommunications carrier licence is required to pay annual carrier licence charges. The annual carrier licence charge recovers the costs of regulating the telecommunications industry. The amount of the annual carrier licence charge is annually set by the ACMA in a written determination, under section 14 of the Carrier Licence Charges Act.
Previous legislative framework
Prior to the enactment of the Telecommunications Universal Service Management Agency Act 2012 (the TUSMA Act), Parts 2 and 3 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the TCPSS Act) set out the levy arrangements for the Universal Service Obligation (USO) and the National Relay Service (NRS) levies. Participating persons were required to:
- contribute to the USO and NRS levies under the TCPSS Act; and
- pay annual carrier licence charges under the Carrier Licence Charges Act.
The Telecommunications (Participating Persons) Determination 2011 (No. 1) (the 2011 PP Determination) exempted certain carriers from being ‘participating persons’ under section 20A of the TCPSS Act. These exempted carriers were classified as ‘USO non-participating persons’.
Under the Australian Communications and Media Authority (Annual Carrier Licence Charge) Direction 2011 (the 2011 ACMA Direction) the Minister directed the ACMA to remove the annual carrier licence charge for a licence held by a carrier that were classified as a ‘USO non-participating person’ under the 2011 PP Determination. This Direction applied to the 2010-2011 eligible revenue period onwards.
2010-2011 eligible revenue period
As a consequence, the ACMA made, under section 14 of the Carrier Licence Charges Act, the Telecommunications (Annual Carrier Licence Charge) Determination 2012. This Determination provided that carriers that were USO non-participating persons in the 2010-2011 eligible revenue period were exempt from paying annual carrier licence charges for the 2011-2012 financial year.
2011-2012 eligible revenue period
Neither the 2011 ACMA Direction nor the 2011 PP Determination have been repealed. The 2011 PP Determination applies in relation to the eligible revenue period for the 2010‑2011 financial year and subsequent eligible revenue periods. However, as this Determination relies on the definition of eligible revenue period in the TCPSS Act, the last eligible revenue period the Determination applies to is the 2011-2012 eligible revenue period.
Given the above operation of the 2011 ACMA Direction and the 2011 PP Determination, the Telecommunications (Annual Carrier Licence Charge) Determination 2013 (made by the ACMA under section 14 of the Carrier Licence Charges Act) provides that carriers that were USO non-participating persons in the 2011-2012 eligible revenue period are exempt from paying annual carrier licence charges in the 2012-2013 financial year.
2012-2013 eligible revenue period and future eligible revenue periods
The TUSMA Act consolidated the previous USO and NRS levies into a single levy. Many of the levy provisions in Part 2 of the TCPSS Act have been mirrored in the TUSMA Act. In particular, a ‘participating person’ (defined in section 92 of the TUSMA Act) for an ‘eligible revenue period’ (defined in section 4 of the TUSMA Act) is liable to pay the levy for the subsequent financial year (i.e. the ‘eligible levy period’, also defined in section 4 of the TUSMA Act).
The Telecommunications (Participating Persons) Determination 2013 (No. 2) (the Participating Persons Determination) provides that carriers that satisfy the following criteria are non-participating persons under the TUSMA Act for the relevant eligible revenue period:
- have an initial sales revenue, gross telecommunications sales revenue or eligible revenue of less than $25 million; and
- lodge an eligible statutory declaration with the ACMA within the specified timeframe.
The purpose of this Direction is to direct the ACMA to provide that a ‘non-participating person’ under the Participating Persons Determination, for the eligible revenue period immediately preceding a financial year, will not be liable to pay an annual carrier licence charge for that financial year. For example, Carrier A is a non-participating person for the 2012-2013 eligible revenue period. Applying this Direction, the determination made by the ACMA under section 14 of the Carrier Licence Charge Act would provide that Carrier A is not liable to pay an annual carrier licence charge for the 2013-2014 financial year.
This Direction applies to the 2012-13 eligible revenue period and future eligible revenue periods.
The Direction is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LI Act). However, as a result of item 41 of the table to subsection 44(2) of the LI Act, the Determination is not subject to disallowance.
Consultation
The ACMA has been consulted in relation to the making of this Direction.
An exposure draft of the Direction was released to carriers on 14 May 2013 for a two week consultation period ending Tuesday 28 May 2013. Two submissions were received, neither of which raised any substantive issues regarding the drafting of the instrument.
Regulatory impact
The Office of Best Practice Regulation (the OBPR) has agreed that the regulatory changes arising from the Determination are machinery in nature and that a Regulation Impact Statement is not required.
Notes on sections
Section 1 - Name of Direction
Section 1 provides that the name of the Direction is the Australian Communications and Media Authority (Annual Carrier Licence Charge) Direction 2013.
Section 2 – Commencement
Section 2 provides that the Direction commences on the later of the commencement of the Participating Persons Determination or the day after the Direction is registered on the Federal Register of Legislative Instruments. The Direction can only commence after the Participating Persons Determination, as the Direction relies on the concept of a ‘non-participating person’, as defined in the Participating Persons Determination.
Section 3 – Definitions
Section 3 sets out the key definitions used in the Direction.
Section 4 – Direction
Section 4 directs the ACMA to make such determinations as necessary under subsection 14(1) of the Carrier Licence Charges Act that have the effect of imposing a nil annual carrier licence charge for a relevant financial year on ‘non‑participating persons’ (as defined in the Participating Persons Determination).
The ACMA must have regard to the Direction when making a determination under subsection 14(1) of the Carrier Licence Charges Act in relation to the 2013-2014 financial year and beyond.