Holders of low power open narrowcasting (LPON) services have been told by the ACMA to ‘Use it or lose it.’
The new direction comes in response to recent decisions by the Administrative Appeals Tribunal, with a new set of guidelines now available from the ACMA website.
Under the Use it or lose it (UIOLI) guidelines operators of a LPON licence must comply to the following conditions.
- Start broadcasting within six months of obtaining the licence
- Use it regularly
- Keep records
The ACMA says that unless there is a reasonable excuse for not doing so, the licensee must commence the service within six months from the day the licence was issued. This is intended to allow enough time to set-up infrastructure for broadcasting.
A licensee must provide the service with reasonable regularity for the duration of the licence and to meet the ‘reasonable regularity’ requirement, there are couple of key factors to consider:
In the decision by the Administrative Appeals Tribunal (AAT), Futrends Pty Ltd and Australian Communications and Media Authority in April 2020 the ACMA’s application of ‘with reasonable regularity for the duration of the licence’ in cancelling LPON licences was considered and upheld. The decision noted the ordinary meanings of the word regular but concluded that the context in which regularity is used in subsection paragraph 4.11(1)(b) of the Direction. Used, done, or happening on a frequent or habitual basis.
This reflects the purpose of the UIOLI conditions in ensuring LPON services are not hoarded or unused.
This meaning of reasonable regularity was further supported by the AAT’s decision in July 2020 of this year in the case of W&A Willmington and Australian Communications and Media Authority, which again agreed with the ACMA’s cancellation of LPON licences as they were not being used with reasonable regularity and defined reasonable regularity as “a frequent or habitual service”.
The ACMA note that there is no fixed minimum number of hours as to what makes up ‘reasonable regularity’. Rather, what is ‘reasonable’ will be informed by all the circumstances of the licence. However, the ‘reasonable’ requirement should be informed by the purpose of the condition, which is to ensure that people are making meaningful use of the licence.
The recent decisions by the AAT also demonstrate that transmissions for short periods may not satisfy the requirement of ‘reasonable regularity’, as transmitting for short periods or making test transmissions to meet licence conditions is not a provision of a service to listeners.
The requirement is for the licensee to provide the service to which the licence relates.
The licensee must maintain records of the commencement, hours of operation and provision of the service.
This means that they must:
- keep a logbook of the hours/events of operation
- keep visual and audio broadcast recordings
- document the nature of the service being provided, whether daily or for special events.
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The article says it all that if an entity which holds one or more HPON licences has six months to use it and that within those six there is little or no broadcasting, the entity will lose the 'privilege' of broadcasting over the frequency or frequencies. The electromagnetic spectrum is a scarce resource. That is one of the reasons for the Federal Government under s51(v) of the Constitution to make laws for postal, telegraphic and other like services.
I have read the AAT cases and in those cases, those licencees were not broadcasting regularly. Typically they were very adhoc, transmitting for a few hours here, not being on the air for a 'time'. There was definitely no regularity.
Unlike the pioneer broadcasters of the 1920s who broadcast for a few hours per night, they were regular. The Stephenson family who pioneered 2EU then 2UE were that. The HPON licencees did not.
What distinguishes those pioneer broadcasters such as the Stephenson family is that they were regular. They built up an audience such that a butcher and the Catholic Church were regular advertisers.
Whether these HPON licensees were permitted to broadcast advertisements, it is not the point. Their broadcasts were irregular. Even though the cases did not reveal the nature of the licensees' targeted audience, adhoc broadcasts is not enough to build an audience and to monetise the business.
In one cases, one entity blamed their irregular service on the failure of the solar-powered stations powering the HPON stations. That shouldn't never have been a problem. First the transmitters' (yes the licencees in all cases had a number of transmitters, hence the correct position of the apostrophe of possession) power ranges is between 1W and 10W. On transmitter power alone, there shouldn't be a problem in powering the transmitter. Many street lights in council-owned parks have large solar panels powering the park's lighting system with power consumption much greater than the sum of the power consumption of the HPON transmitters.
Second, if the studios are supposed to be solar-powered, it should not be a problem if the studios were solar powered. Think of households with a solar-system and backup battery.
For an HPON licensee to blame their solar power technology not functioning resulting in ad-hoc broadcasts is not an excuse. The licensee should have tested its solar-powered studio and transmitter techology before the commencement of the licence period. That's the licensee's problem.
Thank you,
Anthony of in-depth Belfield