Wireless local area networks (WLANs) are now commonly used by:
- companies in workplaces to connect devices such as personal computers and personal digital assistants;
- hotels and airports to provide wireless internet connection for their customers;
- internet service providers to deliver the internet to customers, often in a rural or regional area; and
- community groups to connect members to the internet.
If a WLAN falls within the meaning of 'exempt network' under subsection 34 (3) of the Telecommunications Act 1997, the owner of the exempt network is not required to hold a carrier licence.
An exempt network includes a WLAN that is used for the sole purpose of supplying carriage services on a non-commercial basis.
The reference to sole purpose means that not only must it be shown that the network is used for supplying carriage services on a non-commercial basis, but that it is used only for that purpose.
It is the use of the network to supply carriage services that must be solely non-commercial.
Characteristics of a non-commercial network
The following tests may assist you in identifying whether your use of a WLAN fits the concept of non-commercial. It is important that the tests are considered in conjunction with each other rather than in isolation.
1. Has any reward, monetary or otherwise, been given in relation to the use of the network to supply carriage services?
In general, if a network owner derives no monetary payment or other form of tangible reward from the use of its network to supply carriage services, such use is likely to be non-commercial.
2. What is the nature of the persons involved in the use of the network to supply carriage services and their day-to-day activities?
For example, the 'persons involved' could be a company or corporation using the network for business purposes. Such use is unlikely to be for purely non-commercial purposes.
3. Are there contractual arrangements between the parties involved in the use of the network?
For example, the contractual arrangements may prescribe the payment of money (or other reward) in return for use of a network to supply carriage services, in which case, the use of the network would be commercial. Contracts may be verbal or in writing.
Sometimes all the contracts between the parties will need to be examined, since contractual arrangements for the payment of money may have been made before any agreement for the supply of carriage services using the network.
4. Is the network used for the purpose of making a profit?
The answers to questions 1–3 above may be taken into account in answering this question.
For example, if a network owner is a business corporation and has contracts in place with carriage service providers governing the supply of carriage services on its network, and receives monetary payments for this supply, the network owner is most likely using the network to make a profit.
In general, if the cost of operating the network to supply carriage services is consistently less than the financial return from that supply, it is likely that the network is used to make a profit and is operating on a commercial basis.
5. Do you have an Australian business number (ABN) for use in connection with the operation of the network unit?
Under current taxation laws, business enterprises need an ABN (among other things) to claim Goods and Services Tax credits. All businesses with an annual turnover of more than $50,000 need to have an ABN to comply with GST requirements.
If you have an ABN for use in connection with the operation of the network unit this may indicate that your network is used on a commercial basis.
What should I do now?
If you answer no to all of the above questions, you may be exempt from the requirement to hold a carrier licence.
If you answer yes to any of the questions or are unsure about your answers, you should contact the ACMA.
- fact sheet Wireless LANs – licensing requirements
- fact sheet Wireless LANs – design and security
- fact sheet Wireless LANs – what and how
- frequently asked questions Wireless local area networks in the 2.4 GHz band-accessing the public telecommunications network and related issues.
The ACMA has fact sheets on a range of topics.
Please note: this document is intended as a guide only and should not be relied on as legal advice or regarded as a substitute for legal advice in individual cases.