Prior approval for breach of the statutory control rules
A person may make an application to the ACMA for prior approval for breaches of the provisions of Part 5, Division 2 or 3 of the Broadcasting Services Act 1992 in relation to limitations on control and directorships (section 67(1)). If the ACMA approves the application, then the transaction or agreement may proceed without an offence being committed against the Act.
The application must be made before the relevant transaction or agreement is entered into, otherwise the ACMA cannot consider the application. The ACMA may request further information within 30 days after receipt of the application. The ACMA has to make a decision within 45 days of receiving an application under section 67 or (if the ACMA has requested it) after receiving further information.
Section 67 requires applications to be made in a form approved by the ACMA - see form ACMA B7.
Prior approval for transactions resulting in an unacceptable media diversity situation or an unacceptable 3-way control situation
The ACMA may give prior approval for transactions which cause ‘unacceptable media diversity situations’ or ‘unacceptable three-way control situations’. Before it can decide whether to give its approval to any applications, the ACMA must be satisfied that proposed action will remedy the relevant breach and will be performed within a nominated period of time.
The ACMA can give a notice requiring that action will be taken as a condition of approval. The ACMA may accept an enforceable undertaking which describes not only the action to be taken, but also alternative action to be taken in the event that the proposed course of action is not implemented for any reason. It will be up to applicants to convince the ACMA that the approval sought is consistent with the scheme and objects of the Broadcasting Services Act 1992. Applicants must provide evidence and sufficient basis to persuade the ACMA to exercise its powers in their favour.
The ACMA is responsible for enforcing the law and ensuring individuals and legal entities comply with the statutory control rules, and do not breach the prohibitions on ‘unacceptable media diversity situations’ and ‘unacceptable three-way control situations’ without the ACMA’s approval. Breaches of the law without prior approval from the ACMA may result in the imposition of substantial criminal and civil penalties.
Enforceable undertakings
When the ACMA is assessing whether to approve a transaction that would result in an unacceptable media diversity situation coming into existence, under the Broadcasting Services Act 1992, it can have regard to any relevant undertakings that have been accepted by the ACMA. Further information can be found on the Enforceable undertakings page.
