EXPLANATORY STATEMENT
Prepared by the Australian Communications and Media Authority
Radiocommunications (Transmitter Licence Tax) Amendment
Determination 2014 (No. 2)
Radiocommunications (Transmitter Licence Tax) Act 1983
Purpose
The Radiocommunications (Transmitter Licence Tax) Amendment Determination 2014 (No. 2) (the Amendment Determination) amends the Radiocommunications (Transmitter Licence Tax) Determination 2003 (No. 2) (the Tax Determination) to provide for a more affordable tax payable by wireless microphone operators who choose to use apparatus licences to operate in the frequency range 520 to 694 MHz.
Legislative Provisions
The Tax Determination is made under subsection 7(1) of the Radiocommunications (Transmitter Licence Tax) Act 1983 (the Transmitter Licence Tax Act) which provides that the Australian Communications and Media Authority (the ACMA) may determine the amount of tax in respect of
- the issue of a transmitter licence;
- the anniversary of a transmitter licence coming into force; and
- the holding of a transmitter licence.
Under subsection 33(3) of the Acts Interpretation Act 1901 a power to make an instrument shall be construed as including a power exercisable in the like manner and subject to like conditions (if any) to repeal, rescind, revoke, amend or vary the instrument. The Amendment Determination is made under subsection 7(1) of the Transmitter Licence Tax Act, and amends the Tax Determination.
The Amendment Determination is a legislative instrument under the Legislative Instruments Act 2003 (the LI Act).
Background
Many wireless audio transmitters are authorised to operate in the 520–820 MHz frequency range by the Radiocommunications (Low Interference Potential Devices) Class Licence 2000 (the LIPD Class Licence). This frequency range is attractive to professional users of wireless audio transmitters because there is sufficient spectrum in this band to allow multiple wireless audio transmitters to be used at the same time in the same location.
In 2010, the 694–820 MHz frequency range was declared as the ‘digital dividend’. The ACMA subsequently sold spectrum licences for this range at auction in April 2013. As the start date of these spectrum licences is 1 January 2015, this spectrum is now being cleared of alternative uses, including through the restack process.[1] Related changes to the LIPD Class Licence mean that wireless audio transmitters that currently operate in the digital dividend will have to operate in a different frequency range after 31 December 2014.
Wireless audio transmitters are generally not permitted to operate on the same frequency as a television broadcasting station within the coverage area of that station under the LIPD Class Licence. Similarly, the ACMA is generally not permitted to issue apparatus licences in the broadcasting services bands (subsection 100(2) of the Radiocommunications Act 1992 (the Radiocommunications Act) where television broadcasting stations are licensed to operate. These two facts made it difficult for wireless audio transmitter operators to use their transmitters in spectrum being used by television broadcasting stations. However, in 2006, the ACMA made determination under subsection 31(2) of the Radiocommunications Act to support apparatus licensing of wireless audio transmitters (operating at a power of up to 250 mW EIRP) in the frequency range 520–820 MHz on a ‘no interference/no protection’ basis using the land mobile apparatus licence type in the broadcasting services bands.[2]
Apparatus licence arrangements
A wireless audio transmitter operated under a land mobile licence and the existing ambulatory station licence ‘sub-type’ share similar characteristics.
Under the current apparatus licence regime, a wireless audio transmitter licensed as an ambulatory station, or a group of wireless audio transmitters licensed as an ambulatory system[3] would be subject to an annual licence tax that is dependent on factors such as bandwidth and geographic location.
Given the technical characteristics of wireless audio transmitters, the annual licence tax for a group of low power wireless audio transmitters licensed as an ambulatory system could be as much as $74,000.
High taxes for a group of wireless audio transmitters
This amount is prohibitive for industry as:
> the operation of wireless audio transmitters does not deny spectrum to other users in the area in which they operate;
> wireless audio transmitter users would continue to operate under a ‘no interference/no protection’ basis under an apparatus licence.
Registration of devices
Persons operating devices under class licences are not required to register their devices or contact details with the ACMA. Apparatus licence arrangements in the 520 – 694 MHz would ensure that the ACMA and other users of the spectrum can identify licensees in this band and the devices they are using.
Operation
The Amendment Determination amends Part 7 of Schedule 2 to the Tax Determination by inserting a tax amount for a wireless audio system, and excludes wireless audio systems from the taxing regime set out in Part 3 of Schedule 2.
Consultation
On 10 July 2014 the ACMA released a consultation paper detailing apparatus licence fee arrangements for wireless audio transmitter users in the 520 – 694 MHz. The paper sought comment from interested stakeholders by 20 August 2014. Four submissions were received. They were mainly from professional wireless audio transmitter users and industry bodies representing the commercial and entertainment technologies sector and commercial television broadcasting licensees.
Regulation Impact Statement
The Office of Best Practice Regulation (OBPR) has advised the proposed changes appear to be minor in nature and a Regulation Impact Statement is not required in respect of the Amendment Determination that will introduce a more affordable apparatus licence fee arrangement for wireless microphone users. The OBPR reference number is ID 17003.
Detailed description of the Amendment Determination
The provisions of the Amendment Determination are described in Attachment 1.
Statement of Compatibility with Human Rights
Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule maker in relation to a legislative instrument to which section 42 (disallowance) of the LI Act applies to cause a statement of compatibility to be prepared in respect of that legislative instrument. This statement is at Attachment 2.
Attachment 1 - Details of the Amendment Determination
Section 1 – Name of Determination
Section 1 provides that the name of the Amendment Determination is the Radiocommunications (Transmitter Licence Tax) Amendment Determination 2014 (No. 2).
Section 2 – Commencement
Section 2 states that the Amendment Determination will commence on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 – Amendment of Radiocommunications (Transmitter Licence Tax) Determination 2003 (No. 2)
Section 3 provides that Schedule 1 of the Amendment Determination amends the Radiocommunications (Transmitter Licence Tax) Determination 2003 (No. 2).
Schedule 1 Amendments
Item [1] amends paragraph 301(d) of Schedule 2 to substitute ‘land mobile system’ with ‘land mobile system, other than a wireless audio system’. This will ensure that licences for wireless audio systems are not taxed at the same rate as licences for other land mobile systems.
Item [2] amends paragraph 301(f) of Schedule 2 to substitute ‘ambulatory system’ with ‘ambulatory system, other than a wireless audio system’. This will ensure that licences for wireless audio systems are not taxed at the same rate as licences for other land mobile systems (including ambulatory systems).
Item [3] inserts a new item number 22 at Table 702 of Schedule 2 to the Radiocommunications (Transmitter Licence Tax) Determination 2003 (No. 2). Item number 22 provides that the amount of tax payable for a land mobile licence for a wireless audio system is $37.48.
Item [4] inserts a definition of ‘wireless audio system’ in the Dictionary.
Attachment 2 - Statement of Compatibility with Human Rights
(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
The Amendment Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the instrument
Subsection 7(1) of the Radiocommunications (Transmitter Licence Tax) Act 1983 provides for the ACMA to determine the amount of tax payable in respect of the issue, anniversary or holding of a transmitter licence. The Amendment Determination amends the Tax Determination to insert a new item number 22 at Table 702 of Schedule 2 to the Tax Determination to specify the tax payable for a wireless audio system apparatus licence.
Human rights implications and conclusion
The Amendment Determination does not engage any of the applicable rights or freedoms. The Amendment Determination is compatible with human rights as it does not raise any human rights issues.
[1] The ‘restack’ of television services is a reference to commercial and national television broadcasting services changing the frequencies on which they operate; more information is available at www.acma.gov.au/Industry/Spectrum/Digital-Dividend-700MHz-and-25Gz-Auction/Restack/restack-of-digital-tv-services-spectrum-for-broadcasters-acma. Because of this, the channels on which broadcasting stations or datacasting stations operate may change in a licence area, meaning that wireless audio equipment may not be able to operate in the new channels for the broadcasting stations or datacasting stations in that licence area. Refer to the Department of Communications’ website for more information: www.communications.gov.au/restack
[2] Radiocommunications (Wireless Audio Transmitters) Determination 2006 made under section 31 of the Radiocommunications Act 1992 - www.acma.gov.au/webwr/lib286/rad_wat06.pdf
[3] For definition, see www.acma.gov.au/theACMA/land-mobile-licences-guidelines.