A. Unassigned TV Channels B. Expiring Spectrum Licences Brendan Vernon Manager, Projects and Coordination Section Pricing & Policy Branch Radcomms Conference December 2006 Australian Communications and Media Authority

A. Unassigned TV Channels. On 18 October 2006, the Parliament passed laws that will allow the emergence of a range of new services for Australian consumers. The new legislation provides for the allocation of two types of datacasting transmitter licences (DTL – akin to an apparatus licence) operating in the digital mode: Channel A and Channel B The DTLs will be allocated as separate, national licences for ten years with the possibility of a further five year renewal.

Channel A Licensees may only provide open narrowcasting*, datacasting and community broadcasting services which are capable of being received by domestic digital television receivers; Commercial television broadcasting licensees and national broadcasters may not control a channel A DTL; The price-based allocation system for allocation of channel A licences designed by ACMA must include preconditions for participation in the allocation and the Minister may direct ACMA in regard to these pre- conditions; and ACMA may impose licence conditions, including in relation to rollout obligations on channel A licences, with the Minister to have the power to direct ACMA about imposition of such conditions. Note: *ACMA decisions on narrowcasting under s21 of the Broadcasting Services Act (takes 45 days, requests need to be lodged early)

Channel B Licensees may provide datacasting services under a BSA datacasting licence, another licence allocated by ACMA under the BSA authorising provision of that service, or a service provided in accordance with a class licence under the BSA. Licensees cannot provide: commercial broadcasting services, subscription television broadcasting services to domestic digital television receivers, services provided by commercial television broadcasting licensees or national broadcasters to domestic digital television receivers, and retransmission of an existing commercial television broadcasting or national broadcasting service to domestic digital television receivers; Commercial television broadcasting licensees and national broadcasters may control a channel B datacasting transmitter licence only if it is not used to provide services to domestic digital television receivers; and Licensees must commence services within 18 months or such longer period allowed by ACMA.

Channel B access undertakings regime The legislation establishes an access regime that provides that a person is not eligible to apply for a Channel B DTL unless that person has submitted an access undertaking to the ACCC and the ACCC has accepted that undertaking*. The access undertaking should provide for access to services that enable or facilitate the transmission of content services by content service providers. The ACCC may determine, by legislative instrument, criteria to be applied in deciding whether to accept an access undertaking or a variation of an access undertaking. An accepted undertaking will become binding on a person who acquires a channel B DTL and adherence to the terms of an undertaking will be a condition of the licence The undertaking remains for the duration of the licence and transfers with any licence transfer. However, undertakings may be varied with the agreement of the ACCC. Note: *ACCC requires up to 12 weeks to assess access undertakings

S50 of Trade Practices Act (TPA) Section 50 of the TPA prohibits acquisitions of shares or assets which would be likely to substantially lessen competition in a market. Section 106A of the Radiocommunications Act provides that the acquisition by a person of an apparatus licence (such as a DTL for channel A and/or B) would constitute the acquisition of an asset by that person for the purposes of s. 50 of the TPA. Applicants for Channels A and/or B may need to request clearance from the ACCC prior to the allocation of the DTLs. This process typically takes 8 – 12 weeks however it is advisable to allow plenty of time if seeking a clearance.

Consultation papers ACMA will release consultation paper on auction parameters this week to close on 5 February 2007 ACCC will release consultation paper seeking comment on access undertakings for Channel B this week to close early February 2007 ACMA will finalise television narrowcasting guidelines by mid March 2007

ACMA seeks views on Which channels for “A” and “B” method of price-based allocation allocation participation criteria for channel A rollout obligations for channels A and B competition limits – to whom and number trading and swapping channels enforcement issues - FTA TV use of channel B ‘digital dividend’ post analog TV switchover

B.Expiring Spectrum Licences Spectrum licences issued around the turn of the century are due to expire in the next few years; Under the current Radiocommunications Act, ACMA cannot commence processes to formulate decisions on action on expiry until 2 years before licence expiry; The first of these are a small number of 10 year spectrum licences in the 500 MHz band due to expire in 2007; ACMA is to consider the future of these licences shortly.

Future Under a proposed amendment to the Act, if passed, ACMA will, in future, be required to complete these processes 3 years before expiry; The high value 15 year mobile telephony spectrum licences were allocated in the period and will expire in ; If the amendment to the Act is passed, then ACMA will commence work on these 15 year expiring 500 MHz licences in Work on the high value 15 year mobile telephony licences will commence at the same time.

Completed Auction

Legislation ss78-84 of the Radcoms Act Under section 82(1) of the Act, ACMA can reissue spectrum licences to incumbent licensees without the need to undertake a price-based allocation if either: (a) The spectrum licences were used to provide a service that the Minister now determines to be in the public interest; or (b) ACMA is satisfied that special circumstances exist to justify reissuing the licence in the public interest to the incumbent licence holder. Under subsection 82(3) of the Act, the Minister may determine, by written instrument, a specified class of services for which re-issuing spectrum licences to the same licensees would be in the public interest.

Further details For more details on any of the above issues please feel free to contact me Brendan Vernon Canberra office of ACMA (02)