EXPLANATORY STATEMENT
Section 26 – Legislative Instruments Act 2003
Licence Area Plan Variation
Nowra Radio
© Commonwealth of Australia 2008
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LEGISLATIVE INSTRUMENTS ACT 2003
Section 26 - Explanatory Statement
Variation to the licence area plan for Nowra Radio – No 1 of 2008 made under the Broadcasting Services Act 1992
In accordance with the Australian Communications and Media Authority Act 2005, from 1 July 2005 the Australian Communications and Media Authority (ACMA) exercises powers and functions under the Broadcasting Services Act 1992 (the BSA) previously exercised by the Australian Broadcasting Authority (ABA).
The Nowra Radio Licence Area Plan (LAP) (the principal instrument) was made by the ABA on 12 August 1999 and varied on 18 November 2004. However the effect of the variation instrument made by the ABA on 18 November 2004 is uncertain due to a lack of clarity in the drafting of the variation instrument.
On 5 June 2008, ACMA made a further variation to the LAP for Nowra Radio and that variation is referred to in this Explanatory Statement as “the instrument”. In addition to incorporating further changes, this variation ensured that the changes intended to be made by the previous variation would also take effect.
The LAP and variations
ACMA prepares LAPs under subsection 26(1) of the BSA. LAPs determine the number and characteristics, including technical specifications, of broadcasting services that are to be available in particular areas of Australia with the use of the broadcasting services bands.
ACMA may, by legislative instrument, vary LAPs under subsection 26(2) of the BSA.
On 6 July 2007, ACMA prepared new technical planning guidelines, the Broadcasting Services (Technical Planning) Guidelines 2007, under section 33 of the BSA. All references to “Technical Planning Guidelines’ in this variation have been updated to refer to the new Guidelines. However, there is no substantive difference between references in the LAP to ‘Technical Planning Guidelines’ and the Broadcasting Services (Technical Planning) Guidelines 2007.
Intended impact and effect
In relation to broadcasting services, the instrument varies the site and operating conditions for the community radio service currently operated by 2WYR in Nowra by:
- amending the transmitter site from Moss Vale to Mt Gibraltar;
- increasing the transmission power from 10 W to a maximum ERP of 200 W; and
- increasing the size of licence area that the community radio service may operate such that it is identical to the Bowral RA1 licence area (in which the 2WKT community radio service currently operates).
These changes will increase the efficient use of the radiofrequency spectrum.
In order to improve readability, the instrument also makes variations of a minor and administrative nature to:
- vary the definition of the licence areas so that they are described in terms used by the Australian Bureau of Statistics in the 2001 Census and are consistent with the most recent determination of populations of licence areas made under section 30 of the BSA;
- correct previous drafting errors; and
- delete information, included for reference only, that does not form part of the LAP and which may create confusion.
ACMA intends the effect of these variations to be to clarify the rights and obligations of radio broadcasting licensees in the Nowra area. ACMA does not intend the variations to alter those rights and obligations.
Consultation and Submissions
Before making the decision to vary the LAP, ACMA undertook the following steps by way of consultation:
On 26 September 2007, ACMA published the following papers on its website:
- a draft variation to the Nowra LAP;
- an explanatory paper about the changes proposed in the draft variation to the LAP, inviting public comment by 31 October 2007; and
- a media release announcing the proposed draft variation to the Nowra LAP.
On 3 October 2007, ACMA placed an advertisement in the “Southern Highland News” newspaper outlining the effect of the draft variation on the LAP, providing details of how to obtain copies of the draft variation, how to access it on ACMA’s website and inviting public comment.
On 5 October 2007, ACMA wrote to the licensees providing radio broadcasting services to the Nowra region to advise them of the release of the draft variation to the Nowra LAP and to invite their comments.
At this time, ACMA also wrote to industry bodies and other interested agencies or organisations, including the Community Broadcasting Association of Australia, Australian Subscription Television and Radio Association, Australian Broadcasting Corporation, to advise them of the release of the draft variation and explanatory paper and to invite their comments.
ACMA received one submission on the draft variation to the Nowra LAP and accompanying explanatory paper.
Description of the provisions of the instrument
Clause (1)(a) of the instrument numbers each of the paragraphs in the determination in the principal instrument consecutively as clauses.
Clause 1(b) of the instrument varies the text in clause (3) of the determination in the principal instrument by omitting the words “Attachments 1.3 – 1.7” and substituting the words “Attachments 1.3, 1.5 – 1.7, 1.11 and 1.12”. This takes into account the addition of Attachments 1.11 and 1.12 by the instrument, as well as the omission of Attachment 1.4.
Clause (1)(c) of the instrument omits clause (5) of the principal instrument and substitutes clause (5) of this instrument. Clause (5) recognises two community radio broadcasting services that are available in the area (whereas the principal instrument only provided for one community radio service in that area), and also takes into account the addition of Attachment 2.3 by the instrument.
Clause 1(d) of the instrument omits clause (6) of the principal instrument and renumbers clauses (7) and (8) as clauses (6) and (7) respectively. This takes into account the fact that the community radio broadcasting service previously to be available in the smaller licence area described in the previous Schedule Three as Moss Vale RA1 will now be available to the larger licence area of Bowral RA1 as described in Schedule Two.
Clause 1(e) of the instrument inserts clauses (8) and (9) to the principal instrument. The addition of clause (8) gives effect to the former ABA’s intention in its variation of the licence area plan made on 18 November 2004 to make available channel capacity for a community radio service in Sanctuary Point. As the previous variation may not have had legal effect clause 1(e) ensures that it is in place now. Clause (9) ensures that references to schedules and attachments include schedules and attachments that have been amended from time to time by ACMA.
Clauses 2(a), (b), (c), (d) and (e) of the instrument delete all text on the entire page appearing immediately under the heading “Schedules” (including the heading itself) in the principal instrument. This text, included for reference only, does not form part of the LAP and may be confusing.
Clause 3(a) of the instrument omits Schedule One of the principal instrument and substitutes a revised Schedule One of this instrument. The insertion of a new Schedule One reflects the former ABA’s intention in its variation of the licence area plan made on 18 November 2004. As the previous variation may not have had legal effect this clause 3(a) ensures it is now in place. This variation provides for commercial radio licence area in Nowra to include a service to St Georges Basin and Kangaroo Valley.
Clause 3(b) of the instrument omits Schedule Two of the principal instrument and substitutes Schedule Two of this instrument. This revised schedule takes into account the addition of Moss Vale community broadcasting service that was previously listed in Schedule Three of the principal instrument. This revised schedule takes into account that the community radio broadcasting service previously to be available to the smaller licence area described in the previous Schedule Three as Moss Vale RA1 will now be available to the larger licence area of Bowral RA 1. The revised Schedule Two therefore includes the community radio broadcast service as a service to be available to the Bowral RA 1 licence area.
Clause 3(c) of the instrument omits Schedule Three of the principal instrument as the community broadcasting service listed in this schedule will now be listed in Schedule Two.
Clause 3(d) of the instrument omits the “Status” column from Schedule Four to keep the format of the schedules consistent to other schedules where the status columns have previously been omitted.
Clause 3(e) of the instrument omits the “Status” column from Schedule Five to keep the format of the schedules consistent to other schedules where the status columns have previously been omitted.
Clause 3(f) of the instrument varies the principal instrument by adding Schedule Six of this instrument. Schedule Six reflects the former ABA’s intention in its variation of the licence area plan made on 18 November 2004, to make available channel capacity for a community radio service in Sanctuary Point. As the previous variation may not have had legal effect this clause 3(f) ensures that this Schedule is in place now.
Clause 4(a) of the instrument omits Attachment 1.1 of the principal instrument and substitutes a revised Attachment 1.1 which comprise of updated information collected in the 2001 Census.
Clause 4(b) of the instrument omits Attachment 1.4 of the principal instrument. This is to reflect the fact that the revised Schedule One no longer includes a reference to Attachment 1.4.
Clause 4(c) of the instrument varies the principle instrument by adding Attachment 1.11 of this instrument. Attachment 1.11 now reflects the former ABA’s intention in its variation of the licence area plan made on 18 November 2004 and lists the details of St Georges Basin including its Technical Specifications. As the previous variation may not have had legal effect this clause ensures that the LAP now includes this service.
Clause 4(d) of the instrument varies the principal instrument by adding Attachment 1.12. Attachment 1.12 of this instrument now reflects the former ABA’s intention in its variation of the licence area plan made on 18 November 2004 and lists the details of Kangaroo Valley including its Technical Specifications. As the previous variation may not have had legal effect this clause ensures that the LAP now includes this service.
Clause 4(e) of the instrument omits Attachment 2.1 of the principal instrument and substitutes Attachment 2.1 of this instrument which comprises updated information collected in the 2001 Census.
Clause 4(f) of the instrument varies the principal instrument by adding Attachment 2.3. Attachment 2.3 contains new technical specifications for the community radio service operating and serving the general area of Moss Vale (licence area Bowral RA1). The new technical specification changes the nominal location, increases the maximum ERP for the service and extends the licence area that the service is to be available to.
Clauses 4(g) and (h) of the instrument omits Attachments 3.1 and 3.2 of the principal instrument. This takes into account the previous amendments above where Schedule Three was omitted from the principal instrument and the area of Moss Vale was combined under the licence area of Bowral under Schedule Two.
Clauses 4(i) and (j) of the instrument omits Attachments 4.1 and 5.1 of the principal instrument and substitutes Attachments 4.1, and 5.1 respectively which comprise of updated information collected in the 2001 Census.
Clause 4(k) of the instrument varies the principal instrument by adding Attachment 6.1 of this instrument. Attachment 6.1 reflects the former ABA’s intention in its variation of the licence area plan made on 18 November 2004, and lists the area description of the new licence area at Sanctuary Point. As the previous variation may not have had legal effect this clause ensures that the LAP now includes this licence area.
Clause 4(l) of the instrument varies the principal instrument by adding Attachment 6.2 of this instrument. Attachment 6.2 now reflects the former ABA’s intention in its variation of the licence area plan made on 18 November 2004 and lists the details of Sanctuary Point including its Technical Specifications. As the previous variation may not have had legal effect this clause ensures that the LAP now includes this service.