- Application for transfer of apparatus licences
- Other issues in relation to transfers
The transfer of apparatus licences may be effected under sections 131AA, 131AB and 131AC of the Radiocommunications Act 1992 (the Act).
When an apparatus licence is transferred, it will remain in force for the balance of the original term of the licence (this is subject, to the possibility of any later administrative action taken by the Australian Communications and Media Authority (ACMA) to suspend or cancel the licence). The transferred licence will also be subject to the same conditions as applied to the licence immediately before the transfer.
The transfer provisions of the Act also give the ACMA the power to make a determination should it be necessary to prohibit the transfer of certain types of licences, or to specify circumstances in which a licence may not be transferred. The Radiocommunications (Transfer of Apparatus Licences) Determination 2000 specifies restrictions on the transfer of licences that qualify for licence fee exemptions or concessions and where an International Broadcasting Licence is required to authorise an International Broadcasting Service.
A licensee may make a written application to the Radiocommunications Licensing & Telecommunications Deployment Section, ACMA, Canberra, for his or her licence to be transferred to another person at any time before the licence is due to expire.
The application must be:
- completed on the Application for transfer of apparatus licence(s) form (R060); and
- signed by both the licensee and the transferee (the proposed new licensee); and
- accompanied by the relevant transfer fee.
Both signatures must be original and written with a ballpoint pen or ink pen. While the transfer form may be a photocopy, the signatures may not nor may they be facsimiles.
An application to transfer a licence may be made only when it is proposed that another person (see footnote 1) be substituted for the licensee.
In deciding whether to transfer the apparatus licence into the name of the transferee, it is necessary for the ACMA to consider:
- all matters that may be relevant; and
- without limiting the above, the effect on radiocommunications of the proposed operation of the radiocommunications devices that would be authorised under the licence; and
- whether the proposed transferee is qualified (under section 119 of the Act) to operate transmitters under that licence (see footnote 2); and
- whether the proposed operation of the transmitters is not reasonably likely to cause:
- death of, or injury to, persons; or
- loss of, or damage to, property; and
- whether, in the two years preceding the application for licence transfer, the proposed transferee has been the holder of an apparatus licence that has been cancelled by the ACMA.
Among the matters that may be relevant when the ACMA is considering whether to transfer a licence, is the effect on other radiocommunications services by the proposed operation of radiocommunications devices that would be authorised under the licence if it were transferred.
If the transferee wishes to proceed with the transfer, but with different licence conditions, then the ACMA will consider whether:
- the transferor wants to apply for a variation to the licence prior to the application; or
- the transferee wants to continue with the licence transfer and then apply for a variation to the licence conditions after the transfer has taken place.
There is no guarantee to the transferor or the transferee that conditions will be approved as licence variations can only be approved where they meet technical specifications. Relevant charges should apply to the variation of the licence conditions.
Section 131AC of the Act specifies that:
- particular types of apparatus licences are not transferable; and
- in specified circumstances, an apparatus licence is not transferable.
The Radiocommunications (Transfer of Apparatus Licences) Determination 2000 specifies that:
- bodies that, or individuals who, have been granted an exemption from payment of licence fees will not be entitled to transfer their licence(s) to bodies that, or individuals who, are not similarly eligible for the licence fee exemption;
- bodies that, or individuals who, have been granted a concession on payment of licence fees will not be entitled to transfer their licence(s) to bodies that, or individuals who, are not eligible for the licence fee exemption or concession;
- a licensee of an HF Overseas International Broadcasting Licence (IBL) Service station(s) will not be entitled to transfer his or her licence(s) unless there is in force an International Broadcasting Licence that authorises the provision of that service;
- a licensee, who is either the Australian Broadcasting Corporation (ABC) or the Special Broadcasting Service (SBS), will not be entitled to transfer its licence(s) if the proposed transferee intends to operate a radiocommunications device under the licence to provide an international broadcasting service, or if the proposed transferee intends to operate a radiocommunications device under the licence to provide a broadcasting service within Australia; and
- a licensee of an HF Overseas Service licence, who is operating an exempt broadcasting service will not be entitled to transfer his or her licence(s) unless the proposed transferee is similarly eligible for exemption under subsection 18A(3) of the Broadcasting Services Act 1992.
The ACMA may refuse to transfer a licence. However, before a decision is made to refuse an application for transfer, the ACMA will first write to each of the applicants. These letters will inform the applicants that, based on information to hand, the ACMA is considering refusing the application to transfer, but is open to receive comments within a stated reasonable time before any decision is made.
The decision to refuse to transfer a licence due to one or more of those matters outlined in the above two sections, is a reviewable decision under section 285 of the Act. The ACMA will advise both the licensee and the proposed transferee, in writing, if their application for licence transfer has not been accepted. The letter will include a statement of reasons.
If the licensee, proposed transferee, or both, are dissatisfied with the decision, reconsideration of the decision may be sought in writing from the ACMA within 28 days of receipt of that notice. If the licensee, proposed transferee, or both, are dissatisfied with the ACMA's decision following reconsideration, they may apply to the Administrative Appeals Tribunal for a review of decision.
Where the ACMA makes a decision to transfer the licence, the transferred licence will:
- continue in force until the date of expiry specified when the licence was issued to the original licensee; and
- continue on the same conditions as those that applied immediately before the transfer, unless the ACMA undertakes to alter the conditions under section 111 of the Act. If a transferee wishes to change the licence details or conditions, this must be done as a separate process and a separate administrative charge will apply.
For example, a person issued with a Land Mobile licence authorising a particular Land Mobile System station may wish to transfer that licence to another person. In this case, it is necessary for the original Land Mobile licence authorising a Land Mobile System station to be transferred (without change). Once transferred, unless approval has been granted by the ACMA for the service to operate under other conditions, the transferee must operate under the same conditions as were applicable before the licence transfer - this includes operating only at the location of the base station as specified in the device record of the relevant spectrum access record.
If the transferee wants to relocate the 'base station', then this is treated as a separate process from the licence transfer. After the Land Mobile licence has been transferred to the transferee, the transferee must request a change to the location of the 'base station'. Any issue charges involved in the re-assignment of the base station to a new location, will be applicable.
The Application for transfer of apparatus licence(s) form (R060) must be accompanied by the required fee for licence transfer.
Licensees who qualify for licence fee exemption are not required to pay the transfer fee (ie, as well as exemption from the licence fee, they are also exempt from payment of the licence transfer fee). Concessionary licensees must pay the licence transfer fee. No refund of the original licence fee will be provided to the original licensee, nor will the transferee be required to provide money for the remaining term of the licence.
Upon the death of an apparatus licensee, the licence(s) will, under subsection 103(2) of the Act, remain in force for the period shown in the licence. Consequently, any authorisations made under the licence in accordance with section 114 of the Act, while the licensee was alive, will also remain in force. However, since apparatus licences can only be transferred following an application from the licensee [subsection 131AA(1)], it follows that a licence cannot be transferred after the licensee's death. This is so, even if the person wishing the transfer to take place is a spouse or de facto of the deceased.
If a licensee's executor or personal representative requires information about claiming a refund on behalf of the licensee's estate, they should write to:
Legal Services Division
Australian Communications and Media Authority
PO Box 78
BELCONNEN ACT 2616.
1. Section 97 of the Act provides that apparatus licences are issued to persons. A 'person' is defined, by subsection 22(1) of the Acts Interpretation Act 1901, to mean an individual, a body politic (ie, a government) and a body corporate (for example, a 'company', such as Telstra a 'statutory corporation', such as the Australian Broadcasting Corporation or an 'incorporated association', such as most sporting clubs). A licence may be transferred from one party in a partnership to another party in the partnership (with the agreement of all parties in the partnership).
A 'person' does not include a trust, an unincorporated association, a superannuation fund, or a business name. If a trust wanted to hold an apparatus licence, the trustee (ie, an individual or a body corporate) would need to hold the licence on behalf of the trust. If a business name wanted to hold an apparatus licence, it would need to be held as a person (ie, an individual or a body corporate), trading as the business name.
2. Persons must be qualified operators to operate transmitters under the following licensing options: Amateur Intermediate, Amateur Limited, Amateur Novice, Amateur Novice Limited, Amateur Unrestricted, Major Coast, Limited Coast Assigned, Limited Coast Non Assigned, Limited Coast Marine Rescue, Maritime Ship Class B Assigned, Maritime Ship Class B Non Assigned, Maritime Ship Class C Assigned, Maritime Ship Class C Non Assigned. See the Radiocommunications (Qualified Operators) Determination 2005, for further details.