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RADIOCOMMUNICATIONS (COORDINATION) REGULATIONS 1995 NO. 65
EXPLANATORY STATEMENTStatutory Rules 1995 No. 65
Issued by the Authority of the Minister for Communications and the Arts
Radiocommunications Act 1992
Radiocommunications (Coordination) Regulations
Section 314 of the Radiocommunications Act 1992 (the Act) provides that the Governor-General may make regulations prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Regulations support the proposed allocation of specific multipoint distribution (MDS) licences in regional Australia under a price based allocation system determined by the Spectrum Manager under section 106 of the Act, the Radiocommunications (Allocation of Multipoint Distribution Station Licences Regional Licences) Determination No 1 of 1995 (the Determination). MDS licences can be used for the transmission of services for text, graphics, still pictures, sound, non-entertainment video and entertainment video which includes pay TV.
The Determination provides for the allocation of licences by an auction style process, and for the subsequent issuing of licences to the highest bidders for the licences (the nominated applicants) after they have had an opportunity to reach agreement on the location of transmitters in the MDS channel group and area, and the technical conditions relating to the operation of those transmitters.
This system differs from that which applied to the allocation of MDS licences in 1994 in main city areas under another price-based allocation system determined by the Spectrum Manager under section 106 of the Act. Under that system, the Spectrum Management Agency (SMA) was able to determine in advance of the allocation (also by an auction style process) the location of transmitters and the technical parameters relating to their operation. However, because the regional areas covered by the Determination are much larger, the nominated applicants for each MDS channel group and area must coordinate the location of their transmitters and the technical parameters relating to their operation before they can be issued with their licences.
Accordingly. the Regulations establish procedures which will enable nominated applicants to reach agreement on the location and operation of transmitters which will minimise the potential for interference. The Regulations also provide for the determination of transmitter location by the SMA where nominated applicants in an MDS channel group and area are unable to reach agreement. Because applicants may wish to roll out their services over a period of time, the Regulations also provide the mechanism for adding transmitters to a licence, or otherwise requesting the SMA to vary licence conditions, after licence issue.
The determination of licence conditions by the SMA specifying the location of transmitters and their technical operating characteristics, will be in accordance with guidelines made under section 112 of the Act, which will be made available to all applicants.
The Regulations commenced on 6 April 1995.
Detailed notes on the Regulations are attached.
ATTACHMENT TO EXPLANATORY STATEMENT
Radiocommunications (Coordination) Regulations
Notes on Regulations
PART 1 - PRELIMINARY
Regulation 1 - Citation
Regulation 1 is a citation provision.
Regulation 2 - Commencement
Regulation 2 provides that the Regulations commence on 6 April 1995.
Regulation 3 - Object of the Regulations
Regulation 3 sets out the object of the Regulations.
The Regulations establish procedures which will facilitate the coordinated placement of multipoint distribution station (MDS) transmitters by successful applicants under the price based allocation system to be established by the Radiocommunications (Allocation of Multipoint Distribution Station Licences Regional Licences) Determination No. 1 of 1995 (the Determination), so as to assist in the efficient provision of radiocommunications services and to minimise interference caused by the operation of those transmitters. Accordingly, the Regulations apply to the location of transmitters before and after the issue of licences. Parts 2 and 3 apply to the placement of transmitters before licence issue in an MDS channel group and area, and Part 5 is relevant to the exercise by the SMA of its power under the Act to vary apparatus licences.
Regulation 4 - Interpretation
Regulation 4 defines terms used in the Regulations. The definitions include the following:
"area" has the same meaning as in the Determination. Licences allocated under the Determination are to operate MDS transmitters in the areas defined In Schedule 1 to the Determination.
"group" means a group of channels within the meaning of the Multipoint Distribution Band Plan. Under the Band Plan, there are two MDS channel groups, group A and group 5. To avoid interference, the placement of transmitters within each group in an area must be coordinated, but not the placement of transmitters between each group.
"additional agreed Transmitter Proposal" means a Transmitter Proposal that is an agreed Transmitter Proposal under regulation 25 - that is, after licences have been issued in relation to a group and area.
"agreed Transmitter Proposal" means a Transmitter Proposal that is an agreed Transmitter Proposal under regulation 16 - that is, before licences have been issued in relation to a group and area.
"nominated applicant' means a person who is a nominated applicant within the meaning of the Determination. Under the Determination, a nominated applicant is a registered applicant who pays the highest bid price for a licence, or, if the SMA registers only one applicant for licences in an area, an applicant who pays the reserve price for a licence.
"Transmitter Proposal" has the same meaning as In the Determination. A Transmitter Proposal will propose the location of transmitters for a group and area and the technical characteristics of their operation. The Determination provides, amongst other things, that the SMA must issue a licence for a group and area if an agreed Transmitter Proposal is in force for group and area in which the licence is located, subject to the Radiocommunications (Multipoint Distribution Station Licences - Regional Licences) Guideline No 1 of 1995 (the Guidelines), to be made under section 112 of the Act. The Regulations specify when there is an agreed Transmitter Proposal for a group and area.
Regulation 5 - When is conciliation required In relation to an group and area
Regulation 5 specifies when conciliation is required in relation to the proposed operation of a transmitter for the purposes of the Regulations, under subsection 206(1) of the Radiocommunications Act 1992 (the Act).
Conciliation will be required If the SMA receives technically incompatible Transmitter Proposals for a group and area. Transmitter Proposals will be technically incompatible if their operation would cause interference above a level set by the Guidelines. The SMA is required to comply with the Guidelines in determining the conditions of the licences.
The Regulations also provide that a licensee may give a Transmitter Proposal to the SMA after the issue of licences for the group and area, for the purpose of requesting the SMA to exercise its power under the Act to vary licences. Conciliation will be required if a Transmitter Proposal is technically incompatible, in accordance with the Guidelines, with existing licence conditions, or with another Transmitter Proposal.
PART 2 - Transmitter Proposals
Regulation 6 - Nominated applicant may give the SMA a Transmitter Proposal
Regulation 6 (1) provides that a nominated applicant may give to the SMA a completed Transmitter Proposal. A nominated applicant is a registered applicant for a licence under the Determination who pays the highest bid price for a licence or, if the applicant was a lone applicant in the relevant area, pays the reserve price for the licence.
Regulation 6(2) requires that a nominated applicant must not give the SMA a Transmitter Proposal if:
(a) the SMA has directed that a licence in a relevant group and area is to be included in an additional allocation., or
(b) conciliation is required in relation to the relevant group and area; or
(c) an agreed Transmitter Proposal is in force for the relevant group and area.
Under the Determination, where more than one applicant registers to bid for licences in an area, the SMA must tell each registered applicant the period or periods, called allocation periods, within which bids are to be invited for licences in that area. The SMA may arrange for one or more additional allocation periods if no bids are received for a licence or an application for a licence ceases to have effect in one of the circumstances specified in the Determination. Paragraph 6(2)(a) follows from the requirement in the Regulations that 3 months after a Transmitter Proposal is circulated to the other nominated applicants in the group and area, those nominated applicants will be taken to have agreed with the Transmitter Proposal unless the proposal has been referred to conciliation. If the SMA directs that a licence in a group and area be included in an additional allocation, a Transmitter Proposal cannot be given to the SMA and circulated, triggering the commencement of the 3 month period, until that licence has been allocated or withdrawn (regulation 7).
Paragraph 6(2)(b) - Under the scheme established by the Determination and the Regulations, once Transmitter Proposals have been referred to conciliation, the part of the scheme that provides for express or deemed agreement with a Transmitter Proposal that has been circulated (regulation 16), is suspended once conciliation is required. Where conciliation is required, the SMA will issue licences for the group and area following the conclusion of the conciliation. If the conciliator has been able to achieve the agreement of all nominated applicants on the placement of transmitters, any of the nominated applicants may give to the SMA a Transmitter Proposal expressing that agreement (regulation 12). In the absence of such a resolution, the SMA will determine the licence conditions. Accordingly. once conciliation is required for a group and area, the Regulations prohibit the giving of a Transmitter Proposal to the SMA until licences for the group and area have been issued.
Paragraph 6(2)(c) ensures that once there is an agreed Transmitter Proposal, a nominated applicant in the same group and area may not give a Transmitter Proposal to the SMA until after licence issue.
Under the scheme established by the Determination and the Regulations, licences Will be issued under the Determination if there is an agreed Transmitter Proposal. The Regulations specify when a Transmitter Proposal becomes an agreed Transmitter Proposal. A Transmitter Proposal will become an agreed Transmitter Proposal if.
• a nominated applicant gives the SMA a Transmitter Proposal following conciliation which reflects the terms of the conciliation (regulation 12); or
• all nominated applicants in the group and area expressly agree With the proposal (regulation 13); or
• all nominated applicants are taken to agree with the proposal by the passage of time (regulation 14) or a 'new' nominated applicant is taken to agree with the proposal after an additional licence allocation is held (regulation 15).
All nominated applicants will be taken to agree with the proposal 3 months after being given a copy of the proposal unless, within that period, another technically incompatible Transmitter Proposal is given to the SMA which requires conciliation.
Regulation 6(3) provides that a nominated applicant must not give the SMA a Transmitter Proposal later than 12 months after the day it became a nominated applicant. This requirement is subject to regulation 7(3), which extends that period where the SMA directs that a licence be included in an additional allocation. Under the Determination, all applications for licences in a group and area will cease to have effect if none of the nominated applicants gives a Transmitter Proposal to the SMA within the specified period.
Regulation 6(4) provide's that a nominated applicant may give to the SMA information requested by the SMA under paragraph 8(1)(a) of the Regulations. Compliance with the request is not mandatory because a failure to provide the information will not affect the validity of a Transmitter Proposal.
Regulation 6(5) provides that for the purposes of regulation 6(1), a Transmitter Proposal may be completed by more than one nominated applicant in a group and area, and specifies how a Transmitter Proposal must be executed, depending on whether the Transmitter Proposal is completed by an individual, more than one person, a company. or a body that is neither an individual or a company.
Regulation 6(6) - a Transmitter Proposal given to the SMA Will not be valid if it does not have on a the nominated applicants original signature or other means of execution.
Regulation 6(7) provides that a nominated applicant must give a Transmitter Proposal, or information the applicant has been asked to give the SMA under paragraph 8(1)(a), at the address notified to the applicant in writing or, if the SMA has not notified the applicant of such an address, at an address published in a national newspaper under clause 4 of the Determination.
Regulation 7 - Nominated applicant may give the SMA a Transmitter Proposal if an additional allocation is required
Regulation 7(1) provides that if the SMA directs that a licence for a channel in an area is to be included in an additional allocation then an existing nominated applicant or a nominated applicant from the additional allocation in that group and area may give the SMA a completed Transmitter Proposal in accordance with regulations 7(2) to 7(3).
Regulation 7(2) provides that the restrictions imposed by paragraphs 6(2)(b) and (c) of the Regulations, on when a Transmitter Proposal may be given to the SMA, apply when the SMA has directed under the Determination that a licence is to be included in an additional allocation.
Regulation 7(3) qualifies, where there is an additional allocation, the requirement under regulation 6(3) that a nominated applicant must not give a Transmitter Proposal to the SMA later than 12 months after the applicant became a nominated applicant. Regulation 7(3) provides that a nominated applicant must not give the SMA a Transmitter Proposal later than 12 months after the day all licences in that group and area, that have not been withdrawn from allocation, have been allocated under the Determination by the SMA. Under the Determination, the SMA may direct, in specified circumstances, that a licence be included in an additional allocation or be withdrawn from the allocation process.
Regulation 7(4) repeats, in the case of an additional allocation, the direction in regulation 6(4) that a nominated applicant may comply with a request from the SMA under paragraph 8(1)(a) to give the SMA information in support of a Transmitter Proposal.
Regulation 7(5) repeats, in the case of an additional allocation, the requirement under regulation 6(5) that a Transmitter Proposal may be completed by more than one nominated applicant in a group and area, and specifies the manner of executing a Transmitter Proposal, depending on whether the Transmitter Proposal is completed by an individual, more than one person, a company, or a body that is not an individual or a company.
Regulation 7(6) repeats, in the case of an additional allocation. the requirement under regulation 8(6) that a Transmitter Proposal given to the SMA must have on it the nominated applicant's original signature or other means of execution.
Regulation 7(7) repeats, in the case of an additional allocation, the requirement under regulation 6(7) that a nominated applicant must give a Transmitter Proposal, or information the applicant has been asked to give the SMA under paragraph 8(1)(a), at the address notified to the applicant in writing or. if the SMA has not notified the applicant of such an address, at an address published in a national newspaper under clause 4 of the Determination.
Regulation 8 - Information relating to a Transmitter Proposal
Paragraph 8(1)(a) provides that the SMA may, in writing, ask a nominated applicant to give it Information in support of a Transmitter Proposal. Compliance with a request is not mandatory, under regulations 6(4) and 7(4), because a failure to comply with a request does not affect the validity of a Transmitter Proposal.
Paragraph 8(1)b) provides that the SMA may. In writing, ask a nominated applicant to give it information for the purpose of evaluating a Transmitter Proposal. Such a request would be made where a nominated applicant failed to comply with a request under paragraph 8(1)(a), or the SMA required additional information in order to evaluate a Transmitter Proposal in accordance with the Guidelines. A request under this paragraph must be complied with for a Transmitter Proposal to remain in force (regulation 8(3)).
Paragraph 8(1)(c) Provides that the SMA may tell the nominated applicant in writing an address to which information requested under paragraphs 8(1)(a) and (b) must be sent.
Regulation 8(2) provides that the SMA must not ask a nominated applicant for information under paragraph 8(1)(b) if conciliation is required in relation to the relevant group and area, or if the SMA has already asked the nominated applicant for that information and the nominated applicant has not complied with that request. The effect of these requirements, in conjunction with regulations 8(4) and 8(5), is that a Transmitter Proposal cannot cease to have effect, under regulation 8(3), if it is the subject of conciliation.
Regulation 8(3) provides that a nominated applicant must comply with a request for information under paragraph 8(1)(b) within 14 days, if the nominated applicant wishes to comply with the request, subject to regulation 8(4).
Regulation 8(4) provides that a nominated applicant is not required to comply with a request for information under paragraph 8(1)(b) if conciliation is required In relation to the relevant group and area, or if the SMA has already asked the nominated applicant for information under paragraph 8(1)(b) and the nominated applicant has not complied with that request.
Regulation 8(5) provides that if a nominated applicant does not give information requested under paragraph 8(1)(b) to the SMA within 14 days, the Transmitter Proposal to which the information relates will cease to have effect, unless regulation 8(4) applies to the applicant or the proposal is an agreed Transmitter Proposal. (Under the scheme established by the Determination and these Regulations, the SMA will be required under the Determination to issue licences to all nominated applicants in a group and area once there is an agreed Transmitter Proposal). Therefore. if the SMA has asked for information under paragraph 8(1)(b) and conciliation is subsequently required in relation to the group and area, the relevant Transmitter Proposal will not cease to have effect if the nominated applicant does not comply with the SMA's request.
Regulation 9 - Replacement of a Transmitter Proposal
Regulation 9(1) provides that a nominated applicant may only amend any information on a Transmitter Proposal (as distinct from information provided in support of a Transmitter Proposal under paragraph 8(1)(a) or for the purpose of evaluating a Transmitter Proposal under paragraph 8(1)(c)) by submitting a replacement Transmitter Proposal, subject to this regulation.
Regulation 9(2) requires that a nominated applicant must not give the SMA a replacement Transmitter Proposal in a group and area if conciliation is required or there is already an agreed Transmitter Proposal. This regulation repeats, in the case of replacement Transmitter Proposals, the requirements of paragraphs 6(2)(b) and 6(2)(c).
Regulation 9(3) provides that replacement Proposals can only be given to the SMA no later than 3 months from the date when the Transmitter Proposal to be replaced (the original proposal) was given to the last nominated applicant in the group and area, in accordance with regulation 11. Regulation 9(3) ensures that a Transmitter Proposal cannot be replaced after it has become an agreed Transmitter Proposal by the passage of time.
Regulation 9(4) provides that where a replacement Transmitter Proposal is given to the SMA, the original proposal ceases to have effect if the nominated applicant who gave the replacement Transmitter Proposal to the SMA was the only nominated applicant who completed the original proposal.
Regulation 9(5) allows for the possibility that where an original proposal is completed by more than one nominated applicant, one or more of those applicants may wish to replace the proposal. Regulation 9(5) provides that where the relevant original proposal was completed by more than one nominated applicant, the original proposal will continue in force in relation to those nominated applicants who completed the original proposal but did not give the replacement proposal to the SMA.
Regulation 10 - Additional information relating to a replacement Transmitter Proposal
Regulation 10(1) provides that the SMA may ask a nominated applicant, in writing, for additional information for the purpose of evaluating a replacement Transmitter Proposal.
Regulation 10(2) provides that the SMA must not ask a nominated applicant for information under regulation 10(1) if conciliation is required in relation to the relevant group and area, or if the SMA has already asked the nominated applicant for that information and the nominated applicant has not complied with that request. This regulation repeats, in the case of replacement Transmitter Proposals, the requirements of regulation 8(2).
Regulation 10(3) provides that a nominated applicant must comply with a request for information under regulation 10(2) within 14 days. if the nominated applicant wishes to comply with the request, subject to regulation 10(4).
Regulation 10(4) provides that a nominated applicant is not required to comply with a request for information under regulation 10(1) if conciliation is required in relation to the relevant group and area, or if the SMA has already asked the nominated applicant for information under regulation 10(1) and the nominated applicant has not complied with that request.
Regulation 10(5) provides, as is the case with other Transmitter Proposals (regulation 8(5)), that if a nominated applicant does not give information requested under regulation 10(1) to the SMA within 14 days, the Transmitter Proposal to which the information relates will cease to have effect, unless regulation 10(4) applies to the proposal or the proposal is an agreed Transmitter Proposal. This regulation applies, in the case of replacement Transmitter Proposals, the requirements of regulation 8(5).
Regulation 11 - Distribution of Transmitter Proposals and information
Regulation 11(1) requires the SMA, as soon as practicable after it is given a Transmitter Proposal or replacement Transmitter Proposal, to distribute the proposal to all nominated applicants in the relevant group and area who did not complete the proposal.
Regulation 11(2) - Paragraph 6(2)(a) provides that a nominated applicant may not give a Transmitter Proposal to the SMA if the SMA has directed that a licence in the relevant group and area is to be included in an additional allocation. However, It is possible that a nominated applicant may have given the SMA a Transmitter Proposal before the SMA gives such a direction. Regulation 11 (2) therefore requires the SMA to give, as soon as practicable, a copy of a Transmitter Proposal to a nominated applicant in the group and area who becomes a nominated applicant after a Transmitter Proposal was given to the SMA.
Regulation 11 (3) requires the SMA to distribute, as soon as practicable, to all nominated applicants in the relevant group and area, including any nominated applicant who became a nominated applicant after the information was given to the SMA, any supporting or additional information given to SMA at its request (under regulations 6(4), (7)(4), 8(2), 9(3) and 10(2)). An applicant could only become a nominated applicant after such information had been given to the SMA if a licence in the group and area is included in an additional allocation.
Regulation 12 - Giving the SMA a Transmitter Proposal as the result of conciliation
Under the scheme established by the Determination and the Regulations, if conciliation is required in relation to a Transmitter Proposal for a group and area, the SMA will issue licences for the group and area following the conclusion of the conciliation. Regulation 12 provides that if conciliation is required and the conciliator has been able to effect a settlement of the matter, any of the nominated applicants for the group and area may give to the SMA a Transmitter Proposal that reflects the terms of the settlement.
PART 3 - Agreed Transmitter Proposals
Regulation 13 - Written agreement with a Transmitter Proposal
Regulation 13(1) provides that a nominated applicant may tell the SMA in writing that it agrees with a Transmitter Proposal given to the nominated applicant under regulation 11.
Regulation 13(2) - a nominated applicant must not tell the SMA that it agrees a with a Transmitter Proposal if it is the subject of conciliation. This is because the part of the scheme that provides for express or deemed agreement with a Transmitter Proposal that has been circulated is suspended once conciliation is required. If conciliation is required in relation to a Transmitter Proposal, the SMA will issue licences for the group and area on the basis of the outcome of the conciliation. If the conciliator is able to achieve a settlement of the matter, regulation 12 enables any of the nominated applicants to submit an agreed Transmitter Proposal. If the conciliator is unable to achieve the agreement of all nominated applicants for the group and area, the SMA will issue the licences and determine the conditions relating to the placement and operation of transmitters (see clause 31 of the Determination).
Regulation 13(3) provides that a nominated applicant must not tell the SMA that it agrees with a Transmitter Proposal later than 3 months after the SMA gave it the proposal under regulation 11. (Regulation 14 provides that at the conclusion of that 3 month period, the nominated applicant will be taken to agree with the Transmitter Proposal unless conciliation is required in relation to the placement of transmitters in the group and area.)
Regulation 13(4) requires the nominated applicant to clearly identify, in a. notice under regulation 13(1) to the SMA expressing its agreement with a Transmitter Proposal, the Transmitter Proposal it is agreeing with, and specifies how a notice under regulation 13 must be executed, depending on whether the Transmitter Proposal is completed by an individual, more than one person, a company, or a body that is neither an individual or a company.
Regulation 13(5) provides that the written agreement of a nominated applicant to a Transmitter Proposal, under regulation 13(1), must have on it the nominated applicant's original signature or other means of execution.
Regulation 13(6) provides that the agreement of a nominated applicant to a Transmitter Proposal ceases to have effect if the proposal ceases to have effect. Note that if a nominated applicant fails to provide to the SMA within 14 days information requested under paragraph 8(1)(b) or regulation 10(1), the relevant Transmitter Proposal will not cease to have effect if it is an agreed Transmitter Proposal (regulations 8(3) and 10(3)).
Regulation 13(7) requires the SMA to distribute to all nominated applicants in a group and area, the written agreement of a nominated applicant to a Transmitter Proposal, Including all persons who became nominated applicants after the day on which agreement was given to the SMA. An applicant could become a nominated applicant after such written agreement had been given to the SMA if, after the relevant Transmitter Proposal had been given to the SMA, a licence in the group and area is included in an additional allocation.
Regulation 14 - Agreement with a Transmitter Proposal by passage of time
Regulation 14(1) provides that a nominated applicant will be deemed to agree with a Transmitter Proposal, given to K by the SMA, on the 'approval day' if:
• the nominated applicant does not, before the approval day, tell the SMA under regulation 13 that it agrees with the Transmitter Proposal; and
• the Transmitter Proposal has not ceased to have effect before the approval day. A Transmitter Proposal will only cease to have effect if the nominated applicant fails to provide information requested by the SMA under paragraph 8(1)(b) or regulation 10(1) within the required 14 day period.
It follows that a nominated applicant can only disagree with the Transmitter Proposal of another nominated applicant by giving the SMA a Transmitter Proposal that is technically incompatible with the first mentioned Transmitter Proposal, in the sense that the proposed transmitters would cause interference to one another, before the 'approval day' for the first mentioned Transmitter Proposal. In this circumstance, the SMA will refer the proposals to a conciliator under section 206 of the Act.
Regulation 14(2) provides that a nominated applicant is not taken to have agreed with a relevant proposal if conciliation is required in respect of the relevant proposal before the 'approval day'.
Regulations 14(3) and 14(4) specify when the 'approval day' occurs in relation to a Transmitter Proposal. The approval day will be the first day after 3 months has expired since the relevant Transmitter Proposal was given to the nominated applicant, unless the SMA has requested further information (under paragraph 8(1)(b) or regulation 10(1)) in relation to a Transmitter Proposal and that Information has not been given to it by the nominated applicant who gave it the proposal.
If, at the end of the 3 month period after the Transmitter Proposal was given to the relevant nominated applicant. the nominated applicant who gave the Transmitter Proposal to the SMA has not provided further information requested by the SMA, the approval day will occur 36 days after the end of the 3 month period specified in regulation 14(3). The additional time period is for the SMA to: circulate the information to other nominated applicants in the group and area; for them to consider that information; if they disagree with the Transmitter Proposal to which the information relates, to submit a technically incompatible Transmitter Proposal, so requiring the issue to be dealt with at conciliation. The additional time period is also to allow the SMA sufficient time to request further information in relation to a Transmitter Proposal (if necessary), and to give the nominated applicant an opportunity to comply with the request, before any other nominated applicants can be taken to have agreed with the relevant Transmitter Proposal.
Regulation 14(5) provides that the agreement of a nominated applicant ceases to have effect if the relevant Transmitter Proposal ceases to have effect. Note that if a nominated applicant fails to provide to the SMA within 14 days information requested under paragraph 8(1)(b) or regulation 10(1), the relevant Transmitter Proposal will not cease to have effect if It is an agreed Transmitter Proposal (regulations 8(3) and 110(3)).
Regulation 14(6) provides that the SMA must, as soon as practicable inform, in writing. all other nominated applicants in the group and area when a nominated applicant is taken to have agreed with a Transmitter Proposal.
Regulation 15 - Agreement with a Transmitter Proposal after an additional allocation
Regulation 15(1) provides that if a person becomes a nominated applicant in an area as a result of an additional allocation, and when the person becomes a nominated applicant there is already an agreed Transmitter Proposal in force (under regulations 13 or 14), the new nominated applicant is taken to also agree with the Transmitter Proposal. Note that a Transmitter Proposal cannot be given to the SMA after the SMA has directed that a licence be included in an additional allocation. Therefore, regulation 16(1) will only apply if there is an additional licence allocation after a Transmitter Proposal in the group and area has been given to the SMA and the additional licence Is allocated after all other nominated applicants have either expressly agreed with the Transmitter Proposal or are taken to have agreed with it by the passage of time.
Regulation 15(2) repeats, where a nominated applicant is taken to have agreed with a Transmitter Proposal upon becoming a nominated applicant, the direction under regulations 13(6) and 14(5) that the agreement of a nominated applicant ceases to have effect if the relevant Transmitter Proposal ceases to have effect.
Regulation 15(3) provides that if the SMA directs that a licence in a group and area is to be included in an additional allocation; an agreed Transmitter Proposal is not in force (either by the express agreement of all nominated applicants or by their deemed agreement) when the additional allocation is completed; then a nominated applicant from the additional allocation in that group and area must be given a copy of any Transmitter Proposal for that group and area that was given to the SMA before the additional allocation was completed. Note that a Transmitter Proposal must not be given to the SMA if the SMA has directed that a licence in the group and area is to be included in an additional allocation (paragraph 6(2)(a)).
Regulation 15(4) provides that regulations 13 and 14 apply to the nominated applicant referred to in regulation 15(3) from the day on which the SMA gives the nominated applicant the Transmitter Proposal. That is, the 'new' nominated applicant may expressly agree with the Transmitter Proposal or will be taken to have agreed with it, within the time periods specified in regulations 13 and 14. This means that, if conciliation is not required In relation to the group and area, there can be no agreed Transmitter Proposal until the 'new' nominated applicant has either expressly agreed with the relevant Transmitter Proposal or is taken to have agreed with that proposal.
Regulation 16 - How does a Transmitter Proposal become an agreed Transmitter Proposal?
Regulation 16(1) provides that if the only nominated applicant for a group and area gives the SMA a Transmitter Proposal and, at that time, there is no agreed Transmitter Proposal in force, that Proposal becomes the agreed Transmitter Proposal for that group and area. This regulation is included for the purposes of clause 31 of the Determination, which provides that the SMA will determine the location and operating conditions of transmitters if there is no agreed Transmitter Proposal. The situation where there is only one nominated applicant, following the price-based allocation, is to be distinguished from the concept of a 'lone applicant' under the Determination.
Regulations 16(2) and 16(3) apply where there is more than one nominated applicant in a group and area. Regulation 16(2) provides that if all the nominated applicants for the group and area give a single Transmitter Proposal to the SMA, that proposal becomes the agreed Transmitter Proposal, unless there is already an agreed Transmitter Proposal, The scheme established under the Determination and the Regulations is directed at determining one agreed Transmitter Proposal for a group and area which will be the basis of licences issued in that group and area under clause 31 of the Determination.
Regulation 18(3) provides that if there is more than one nominated applicant in a group and area, and all of the nominated applicants either agree. or are taken to have agreed with a Transmitter Proposal under regulations 13 (express agreement), 14 (agreement by passage of time), or 15 (agreement after an additional allocation), the relevant Transmitter Proposal becomes the agreed Transmitter Proposal for the group and area.
Regulation 16(4) provides that W a nominated applicant gives the SMA a Transmitter Proposal under regulation 12 as a result of conciliation, being a Transmitter Proposal that reflects the settlement of the disputed conduct reached at the conciliation, that Transmitter Proposal becomes the agreed Transmitter Proposal for the relevant group and area on the day on which R is given to the SMA.
PART 4 - CONSIDERATION OF TRANSMITTER PROPOSALS FOR AN AREA FOR WHICH THE SMA HAS ISSUED LICENCES
Regulation 17 - Licensee may give the SMA a Transmitter Proposal
Regulation 17(1) allows a licensee in relation to a group and area to give to the SMA a completed Transmitter Proposal. Note that a nominated applicant in a group and area becomes a licensee when issued with a licence for a channel under clause 30 or 31 of the Determination. A licensee must give a Transmitter Proposal to the SMA if it wishes to add transmitter locations to a licence, or to otherwise vary licence conditions. The scheme that applies under Part 3 and Part 4 of the Regulations generally applies where a licensee gives a Transmitter Proposal to the SMA. Note that the Determination only applies to the point of licence Issue. The SMA has the power to vary licence conditions under section 111 of the Act
Regulation 17(2) provides that a licensee must not give the SMA a Transmitter Proposal if conciliation is required in relation to the relevant group and area. As is the case prior to licence issue, if conciliation is required in relation to a Transmitter Proposal, any licensee would be able to submit another Transmitter Proposal for the consideration of the licensees in the group and area in the context of conciliation.
Regulation 17(3) provides that a licensee may give to the SMA information requested by the SMA under paragraph 18(1)(a) of the Regulations. Compliance with the request is not mandatory because a failure to provide the information will not affect the validity of a Transmitter Proposal.
Regulation 17(4) provides that for the purposes of regulation 17(1), a Transmitter Proposal may be completed by more than one licensee in a group and area, and specifies how a Transmitter Proposal must be executed, depending on whether the Transmitter Proposal is completed by an individual, more than one person, a company, or a body that is neither an individual or a company.
Regulation 17(5) - a Transmitter Proposal given to the SMA will not be valid if it does not have on it the licensee's original signature or other means of execution.
Regulation 17(6) provides that a licensee must give a Transmitter Proposal, or information the applicant has been asked to give the SMA under paragraph 18(1)(a), at the address notified to the applicant in writing or, if the SMA has not notified the applicant of such an address, at an address published in a national newspaper under clause 4 of the Determination.
Regulation 18 - Information relating to a Transmitter Proposal given by a licensee
Regulation 18(1)(a) provides that the SMA may, in writing, ask a licensee to give it information in support of a Transmitter Proposal. Compliance with a request is not mandatory because a failure to comply with a request does not affect the validity of a Transmitter Proposal.
Regulation 18(1)(b) provides that the SMA may, in writing, ask a licensee to give it information for the purpose of evaluating a Transmitter Proposal. Such a request would be made where a licensee failed to comply with a request under paragraph 18(1)(a), or the SMA required additional information in order to evaluate a Transmitter Proposal in accordance with the Guidelines. A request under this paragraph must be complied with for a Transmitter Proposal to remain in force (regulation 18(3)).
Paragraph 18(1)(c) provides that the SMA may tell the licensee in writing an address to which information requested under paragraphs 18(1)(a) and (b) must be sent.
Regulation 18(2) provides that a licensee must comply with a request for information under paragraph 118(1)(b) within 14 days, if the licensee wishes to comply with the request.
Regulation 18(3) provides that if a licensee does not give information requested under paragraph 8(1)(b) to the SMA within 14 days, the Transmitter Proposal to which the information relates will cease to have effect, unless the relevant Transmitter Proposal is an 'additional agreed Transmitter Proposal'. An 'additional agreed Transmitter Proposal' is a Transmitter Proposal that all licensees either expressly agree with (regulation 23), are taken to agree with (regulation 24), or that Is provided to the SMA following agreement reached at conciliation (regulation 22).
Regulation 19 - Replacement of a Transmitter Proposal given by a licensee
Regulation 19(1) provides that a licensee may only amend any information on a Transmitter Proposal (as distinct from information provided in support of a Transmitter Proposal under paragraph 18(1)(a) or for the purpose of evaluating a Transmitter Proposal under paragraph 18(1)(c)) by submitting a replacement Transmitter Proposal, subject to this regulation.
Regulation 19(2) provides that a licensee must not give the SMA a replacement Transmitter Proposal in a group and area if conciliation is required.
Regulation 19(3) provides that replacement Transmitter Proposal can only be given to the SMA by a licensee no later than 3 months after the day on which the SMA gave a copy of the Transmitter Proposal to be, replaced (the original proposal) to the last licensee in the group and area in accordance with regulation 21. This Regulation ensures that a Transmitter Proposal cannot be replaced after It has become an 'additional agreed Transmitter Proposal' by the passage of time.
Regulation 19(4) provides that where a replacement Transmitter Proposal is given to the SMA, the original proposal ceases to have effect If the licensee who gave the replacement Transmitter Proposal to the SMA was the only licensee who completed the original proposal.
Regulation 19(5) allows for the possibility that where an original proposal is completed by more than one licensee, one or more of those licensees may wish to replace the proposal. Regulation 19(5) provides that where the relevant original proposal was completed by more than one licensee, the original proposal will continue in force in relation to those licensees who completed the original proposal but did not give the replacement proposal to the SMA.
Regulation 20 - Additional information relating to a replacement
Transmitter Proposal given by a licensee
Regulation 20(1) provides that the SMA may ask a licensee, in writing, for additional information for the purpose of evaluating a replacement Transmitter Proposal.
Regulation 20(2) provides that a licensee must comply with a request for information under regulation 10(2) within 14 days, if the licensee wishes to comply with the request.
Regulation 20(3) provides, as is the case with other Transmitter Proposals (regulation 18(3)), that if a licensee does not give information requested under regulation 20(1) to the SMA within 14 days. the replacement Transmitter Proposal to which the information relates will cease to have effect, unless the relevant Transmitter Proposal is an additional agreed Transmitter Proposal'.
Regulation 21 - Distribution of Transmitter Proposals and information given by a licensee
Regulation 21(1) requires the SMA, as soon as practicable after it is given a Transmitter Proposal or replacement Transmitter Proposal, to distribute the proposal to all licensees in the relevant group and area who did not complete the proposal.
Regulation 21(2) requires the SMA to give, as soon as practicable, a copy of a Transmitter Proposal to a licensee in the group and area who becomes a licensee after the Transmitter Proposal was given to the SMA. This would occur where a licence Is issued for a channel in a group and area after licences have been issued for other channels in the group and area.
Regulation 21(3) requires the SMA to distribute. as soon as practicable, to all licensees in the relevant group and area, including any licensee who became a licensee after the information was given to the SMA, any supporting or additional information given to SMA at h request (under regulations 17(3), 18(2), or 20(2)).
Regulation 22 - Giving the SMA a Transmitter Proposal as the result of conciliation
Conciliation would be required if a Transmitter Proposal given to the SMA after licence issue involved 'disputed conduct´ within the meaning of section 206 of the Act. This would be the case if the operation of the proposed transmitter(s) would cause interference above a level set by the Guidelines. Regulation 22 provides that K conciliation is required and the conciliator has been able to effect a settlement of the matter, any of the licensees for the group and area may give to the SMA a Transmitter Proposal that reflects the terms of the settlement.
Regulation 23 - Written agreement with a Transmitter Proposal given by a licensee
Regulation 23(1) provides that a licensee may tell the SMA in writing that it agrees with a Transmitter Proposal or a replacement Transmitter Proposal given to the licensee under regulation 17 or 19.
Regulation 23(2) - a licensee may not tell the SMA that it agrees a with a Transmitter Proposal if it is the subject of conciliation. This is because the part of the scheme that provides for express or deemed agreement with a Transmitter Proposal that has been circulated is suspended once conciliation is required. If, following the issue of licences in a group and area, conciliation is required in relation to a Transmitter Proposal, the SMA will decide whether to vary the licence conditions on the basis of the outcome of the conciliation.
Regulation 23(3) provides that a licensee must not tell the SMA that it agrees with a Transmitter Proposal later than 3 months after the SMA gave it the proposal under regulation 11. (Regulation 24 provides that at the conclusion of that 3 month period, the licensee will be taken to agree with the Transmitter Proposal unless conciliation is required in relation to the placement of transmitters in the group and area.)
Regulation 23(4) requires the licensee to clearly identify, in a notice under regulation 23(1) to the SMA expressing its agreement with a Transmitter Proposal, the Transmitter Proposal it is agreeing with, and specifies how a notice under regulation 23 must be executed, depending on whether the Transmitter Proposal is completed by an individual, more than one person, a company, or a body that is neither an individual or a company.
Regulation 23(5) provides that the written agreement of a licensee to a Transmitter Proposal, under regulation 23(1), must have on it the licensee's original signature or other means of execution.
Regulation 23(6) provides that the agreement of a licensee to a Transmitter Proposal ceases to have effect if the proposal ceases to have effect. Note that if a licensee fails to provide to the SMA, within 14 days, information requested under paragraph 18(1)(b) or regulation 20(2), the relevant Transmitter Proposal will not cease to have effect if it is an 'additional agreed Transmitter Proposal' (regulations 18(3) and 20(3)).
Regulation 23(7) requires the SMA to distribute to all licensees in a group and area, Including all persons who became licensees after the day an which agreement was given to the SMA, the written agreement of a licensee to a Transmitter Proposal.
Regulation 24 - Agreement with a Transmitter Proposal given by a licensee by passage of time
Regulation 24(1) provides that a licensee will be deemed to agree with a Transmitter Proposal, given to it by the SMA, on the 'approval day' if:
• the licensee does not, before the approval day, tell the SMA under regulation 23 that it agrees with the Transmitter Proposal; and
• the Transmitter Proposal has not ceased to have effect before the approval day, A Transmitter Proposal will only cease to have effect if the licensee fails to provide information requested by the SMA under paragraph 18(1)(b) or regulation 20(1) within the required 14 day period.
Regulation 24(2) provides that a licensee is not taken to have agreed with a relevant proposal if conciliation is required in respect of the relevant proposal before the 'approval day' - that is, if a technically incompatible Transmitter Proposal, as determined by the Guidelines, has been given to the SMA. This is because the intention is that the issue of whether the proposed transmitter(s) would cause interference will be dealt with at conciliation.
Regulations 24(3) and 24(4) specify when the 'approval day' occurs in relation to a Transmitter Proposal. The approval day will be the first day after 3 months has expired since the relevant Transmitter Proposal was given to the licensee. unless the SMA has requested further information (under paragraph 18(1)(b) or Regulation 20(1)) in relation to a Transmitter Proposal and that information has not been given to R by the licensee who gave it the proposal.
If, at the end of the 3 month period after the Transmitter Proposal was given to the relevant licensee. the licensee who gave the Transmitter Proposal to the SMA has not provided further information requested by the SMA, the approval day will occur 36 days after the end of the 3 month period specified in regulation 24(3). The additional time period is for the SMA to: circulate the information to other licensees in the group and area; for them to consider that information; if they disagree with the Transmitter Proposal to which the information relates, to submit an alternative Transmitter Proposal, so requiring the issue to be dealt with at conciliation. The additional time period is also to allow the SMA sufficient time to request further information in relation to a Transmitter Proposal (if necessary), and to give the licensee an opportunity to comply with the request, before any other licensees can be taken to have agreed with the relevant Transmitter Proposal.
Regulation 24(5) provides that the agreement of a licensee ceases to have effect if the relevant Transmitter Proposal ceases to have effect. Note that if a licensee fails to provide to the SMA within 14 days information requested under paragraph 18(1)(b) or regulation 20(1), the relevant Transmitter Proposal will not cease to have effect if it is an 'additional agreed Transmitter Proposal' (regulations 18(3) and 20(3)).
Regulation 24(6) provides that the SMA must as soon as practicable inform, in writing, all other licensees in the group and area when a licensee is taken to have agreed with a Transmitter Proposal.
Regulation 25 - How does a Transmitter Proposal given by a licensee become an additional agreed Transmitter Proposal
Regulation 25(1) provides that if a licensee in a group and area gives a Transmitter Proposal. or a replacement Transmitter Proposal, and each of the licensees in the group and area either agree, or are taken to have agreed With a Transmitter Proposal under regulations 23 (express agreement) or 24 (agreement by passage of time). the relevant Transmitter Proposal becomes an 'additional agreed Transmitter Proposal' for the group and area.
Regulation 25(2) provides that if a licensee gives the SMA a Transmitter Proposal under regulation 22 as a result of conciliation, being a Transmitter Proposal that reflects the settlement of the disputed conduct reached at the conciliation, that Transmitter Proposal becomes an 'additional agreed Transmitter Proposal' for the relevant group and area on the day on which it is given to the SMA.
PART 5 - MISCELLANEOUS
Regulation 26 - Receipts
Regulation 26 requires the SMA to give a nominated applicant or licensee a receipt for any Transmitter Proposal or information given to the SMA by the nominated applicant or licensee.