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Broadcasting Legislation Amendment (Digital Television) Bill 2006

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2004-2005-2006

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

Broadcasting Legislation Amendment (Digital Television) Bill 2006

 

(1)     Schedule 2, page 42 (after line 24), after item 92, insert:

92QA  Before paragraph 109A(1)(j)

Insert:

                     (ij)  if the licence is a channel B datacasting transmitter licence—a condition that the licensee, and any person so authorised, will comply with an access undertaking in force under Division 4A in relation to the licence;

92UA  After Division 4 of Part 3.3 of Chapter 3

Insert:

Division 4A Access to channel B datacasting transmitter licences

118A   Access to channel B datacasting transmitter licences

                   A reference in this Division to access to a channel B datacasting transmitter licence is a reference to access to services that enable or facilitate the transmission of one or more content services under the licence, where the access is provided for the purpose of enabling one or more content service providers to provide one or more content services.

Note:          Content service provider and content service are defined in section 118M.

118B   Applicant for channel B datacasting transmitter licences must give the ACCC an access undertaking

             (1)  A person is not eligible to apply for a channel B datacasting transmitter licence unless:

                     (a)  the person has given the ACCC a written undertaking that, in the event that the licence is issued to the person, each of the following persons:

                              (i)  the first holder of the licence;

                             (ii)  any person authorised by the first holder of the licence to operate radiocommunications transmitters under the licence;

                            (iii)  any future holder of the licence;

                            (iv)  any person authorised by a future holder of the licence to operate radiocommunications transmitters under the licence;

                            will:

                             (v)  comply with such obligations in relation to access to the licence as are ascertained in accordance with the undertaking; and

                            (vi)  do so on such terms and conditions as are agreed with the holder of the licence (or the person so authorised) or, failing agreement, on such terms and conditions as are ascertained in accordance with the undertaking; and

                     (b)  the ACCC has accepted the undertaking.

             (2)  The undertaking must be in a form approved in writing by the ACCC.

             (3)  The undertaking must be accompanied by the fee (if any) specified in the Procedural Rules. The amount of the fee must not be such as to amount to taxation.

             (4)  The undertaking may be without limitations or may be subject to such limitations as are specified in the undertaking.

             (5)  The Procedural Rules may make provision for or in relation to a time limit for giving the undertaking.

118C   Further information about access undertaking

             (1)  This section applies if a person gives an access undertaking to the ACCC.

             (2)  The ACCC may request the person to give the ACCC further information about the access undertaking.

             (3)  If:

                     (a)  the Procedural Rules make provision for or in relation to a time limit for giving the information; and

                     (b)  the person does not give the ACCC the information within the time limit allowed by the Procedural Rules;

the ACCC may, by written notice given to the person, reject the access undertaking.

             (4)  If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the ACCC may refuse to consider the access undertaking until the person gives the ACCC the information.

             (5)  The ACCC may withdraw its request for further information, in whole or in part.

             (6)  Information obtained by the ACCC under this section is taken to be protected Part XIB or XIC information for the purposes of section 155AB of the Trade Practices Act 1974 .

118D   ACCC to accept or reject access undertaking

             (1)  This section applies if a person gives an access undertaking to the ACCC.

Decision to accept or reject access undertaking

             (2)  After considering the access undertaking, the ACCC must:

                     (a)  accept the access undertaking; or

                     (b)  reject the access undertaking.

             (3)  If the ACCC rejects the access undertaking, the ACCC may give the person a written notice advising the person that, if the person:

                     (a)  makes such alterations to the access undertaking as are specified in the notice; and

                     (b)  gives the altered access undertaking to the ACCC within the time limit allowed by the Procedural Rules;

the ACCC will accept the altered access undertaking.

Notice of decision

             (4)  If the ACCC accepts the access undertaking, the ACCC must give the person a written notice stating that the access undertaking has been accepted.

             (5)  If the ACCC rejects the access undertaking, the ACCC must give the person a written notice:

                     (a)  stating that the access undertaking has been rejected; and

                     (b)  setting out the reasons for the rejection.

118E   Duration of access undertaking etc.

             (1)  If:

                     (a)  a person gives an access undertaking to the ACCC in relation to a channel B datacasting transmitter licence; and

                     (b)  the ACCC accepts the access undertaking; and

                     (c)  the licence is issued to the person;

the access undertaking:

                     (d)  comes into force when the licence is issued; and

                     (e)  remains in force while the licence is in force; and

                      (f)  is suspended while the licence is suspended.

             (2)  To avoid doubt, if:

                     (a)  an access undertaking is in force in relation to a channel B datacasting transmitter licence; and

                     (b)  the licence is transferred;

then:

                     (c)  the transfer does not result in the lapse of the access undertaking; and

                     (d)  the transferee, and any person authorised by the transferee to operate radiocommunications transmitters under the licence, is bound by the access undertaking.

             (3)  If:

                     (a)  a channel B datacasting transmitter licence is renewed; and

                     (b)  immediately before the expiry of the original licence, an access undertaking was in force in relation to the original licence;

the access undertaking:

                     (c)  remains in force while the new licence is in force, as if:

                              (i)  it were an access undertaking in relation to the new licence; and

                             (ii)  each reference in the access undertaking to a holder of the original licence were a reference to a holder of the new licence; and

                     (d)  is suspended while the new licence is suspended.

118F   Variation of access undertakings

             (1)  This section applies if an access undertaking is in force in relation to a channel B datacasting transmitter licence.

             (2)  The licensee may give the ACCC a variation of the access undertaking.

Decision to accept or reject variation

             (3)  After considering the variation, the ACCC must decide to:

                     (a)  accept the variation; or

                     (b)  reject the variation.

             (4)  If the ACCC rejects the variation, the ACCC may give the person a written notice advising the person that, if the person:

                     (a)  makes such alterations to the variation as are specified in the notice; and

                     (b)  gives the altered variation to the ACCC within the time limit allowed by the Procedural Rules;

the ACCC will accept the altered variation.

Notice of decision

             (5)  If the ACCC accepts the variation, the ACCC must give the licensee a written notice:

                     (a)  stating that the variation has been accepted; and

                     (b)  setting out the terms of the variation.

             (6)  If the ACCC rejects the variation, the ACCC must give the licensee a written notice:

                     (a)  stating that the variation has been rejected; and

                     (b)  setting out the reasons for the rejection.

118G   Further information about variation of access undertaking

             (1)  This section applies if the licensee of a channel B datacasting transmitter licence gives the ACCC a variation of an access undertaking.

             (2)  The ACCC may request the licensee to give the ACCC further information about the variation.

             (3)  If:

                     (a)  the Procedural Rules make provision for or in relation to a time limit for giving the information; and

                     (b)  the licensee does not give the ACCC the information within the time limit allowed by the Procedural Rules;

the ACCC may, by written notice given to the licensee, reject the variation.

             (4)  If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the ACCC may refuse to consider the variation until the licensee gives the ACCC the information.

             (5)  The ACCC may withdraw its request for further information, in whole or in part.

             (6)  Information obtained by the ACCC under this section is taken to be protected Part XIB or XIC information for the purposes of section 155AB of the Trade Practices Act 1974 .

118H   Decision-making criteria

Acceptance of access undertaking

             (1)  The ACCC may, by legislative instrument, determine criteria to be applied by the ACCC in deciding whether to accept access undertakings.

             (2)  In deciding whether to accept access undertakings, the ACCC must apply criteria determined under subsection (1).

Acceptance of variation of access undertaking

             (3)  The ACCC may, by legislative instrument, determine criteria to be applied by the ACCC in deciding whether to accept variations of access undertakings.

             (4)  In deciding whether to accept variations of access undertakings, the ACCC must apply criteria determined under subsection (3).

118J   Register of access undertakings

             (1)  The ACCC is to maintain a Register in which the ACCC includes all access undertakings that are in force.

             (2)  The Register may be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the Internet.

118K   Enforcement of access undertakings

             (1)  This section applies if an access undertaking is in force in relation to a channel B datacasting transmitter licence.

             (2)  If:

                     (a)  the ACCC; or

                     (b)  any person (the affected person ) whose interests are affected by the access undertaking;

thinks that a person (the third person ) has breached the access undertaking, the ACCC or affected person may apply to the Federal Court for an order under subsection (3).

             (3)  If the Federal Court is satisfied that the third person has breached the access undertaking, the Court may make all or any of the following orders:

                     (a)  an order directing the third person to comply with the access undertaking;

                     (b)  an order directing the third person to compensate any other person who has suffered loss or damage as a result of the breach;

                     (c)  any other order that the Court thinks appropriate.

             (4)  The Federal Court may discharge or vary an order granted under this section.

118L   Procedural Rules

             (1)  The ACCC may, by legislative instrument, make rules:

                     (a)  making provision for or in relation to the practice and procedure to be followed by the ACCC in performing functions, or exercising powers, under this Division; or

                     (b)  making provision for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the ACCC under this Division; or

                     (c)  prescribing matters required or permitted by any other provision of this Division to be prescribed by the Procedural Rules.

             (2)  Rules under subsection (1) are to be known as Procedural Rules.

             (3)  The Procedural Rules may make provision for or in relation to any or all of the following:

                     (a)  the confidentiality of information or documents given to the ACCC by a person who gave the ACCC an access undertaking or a variation of an access undertaking;

                     (b)  the form and content of undertakings, variations or other documents given to the ACCC under this Division;

                     (c)  requiring the ACCC to give information to the ACMA about the operation of this Division;

                     (d)  requiring the ACMA to give information to the ACCC that is relevant to the operation of this Division.

             (4)  The Procedural Rules may make provision for or in relation to a matter by empowering the ACCC to make decisions of an administrative character.

             (5)  The Procedural Rules may provide that the ACCC may refuse to consider an access undertaking if:

                     (a)  the ACCC is satisfied that the access undertaking:

                              (i)  is frivolous; or

                             (ii)  is vexatious; or

                            (iii)  was not given in good faith; or

                     (b)  the ACCC has reason to believe that the access undertaking was given for the purpose, or for purposes that include the purpose, of frustrating or undermining the effective administration of this Division.

             (6)  The Procedural Rules may provide that the ACCC may refuse to consider an access undertaking given by a person in relation to a channel B datacasting transmitter licence if (apart from section 118B) the person is not eligible to apply for the licence.

             (7)  Subsections (3), (4), (5) and (6) do not limit subsection (1).

118M   Definitions

                   In this Division:

access has the meaning given by section 118A.

access undertaking means an undertaking under section 118B.

content service means a service covered by subparagraph 109A(1)(i)(i) or (ii), but does not include a service covered by subparagraph 109A(1)(ib)(i) or (ii).

content service provider means a company who provides, or proposes to provide, a content service.

Procedural Rules means Procedural Rules made under section 118L.

92VA  Paragraph 125(1)(a)

Before “or (j)”, insert “, (ij)”.

92WA  Subsection 128C(1)

Before “or (j)”, insert “, (ij)”.

92XA  Section 128D

Before “or (j)”, insert “, (ij)”.

[access to channel B datacasting transmitter licences]