Under the apparatus licensing scheme administered by the Australian Communications and Media Authority (the ACMA), licences can be transferred, as long as specific conditions are met.
The transfer of apparatus licences may be effected under sections 131AA, 131AB and 131AC of the Radiocommunications Act 1992 (the Act).
The transfer provisions of the Act also give the ACMA the power to make a determination 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.
When an apparatus licence is transferred, it remains valid until the expiry date of the original licence, unless it is suspended or cancelled by the ACMA. The transferred licence will also be subject to the same conditions as applied to the licence immediately before the transfer.
Applying to transfer an apparatus licence
As a licensee, you may make a written application to the ACMA’s Radiocommunications Licensing and Assignments Section in Canberra for your licence to be transferred to another person at any time before the licence is due to expire.
The application must be:
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.
Necessary considerations for transferring a licence
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
without limiting the above, the effect on radiocommunications of the proposed operation of the radiocommunications devices that would be authorised under the licence
whether the proposed transferee is qualified (under section 119 of the Act) to operate transmitters under that licence (see footnote 2)
whether the proposed operation of the transmitter(s) is not reasonably likely to cause: death of, or injury to, persons loss of, or damage to, property
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.
The ACMA will consider the effect on other radiocommunications services by the proposed operation of radiocommunications devices under the transferred licence.
If the transferee wishes to proceed with the transfer, but with different licence conditions, the ACMA will consider whether:
the original licence holder wants to apply for a variation to the licence prior to the application
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 that any changes to conditions will be approved. Licence variations can only be approved where they meet technical specifications.
Restrictions on transfer
Section 131AC of the Act specifies:
particular types of apparatus licences are not transferable
in specified circumstances, an apparatus licence is not transferable.
The Radiocommunications (Transfer of Apparatus Licences) Determination 2000 specifies:
Any persons or bodies who have been granted an exemption from payment of licence fees may not transfer their licence(s) to bodies or individuals who are not similarly eligible for a licence fee exemption
Licensees who have been granted a licence fee concession may only transfer their licence(s) to others who are eligible for a licence fee exemption or concession
HF Overseas International Broadcasting Licence (IBL) Service licence holders will not be entitled to transfer their licence(s) unless an International Broadcasting Licence that authorises the provision of that service is in force
the Australian Broadcasting Corporation (ABC) or the Special Broadcasting Service (SBS), will not be entitled to transfer 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
HF Overseas Service licence holders who operate an exempt broadcasting service will not be entitled to transfer their licence(s) unless the proposed transferee is similarly eligible for exemption under subsection 18A(3) of the Broadcasting Services Act 1992.
Refusal to transfer
The ACMA may refuse to transfer a licence.
Before a transfer application is refused, the ACMA will first write to each of the applicants to inform them 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 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.
The decision to refuse to transfer a licence due to one or more of those matters outlined above is a reviewable decision under section 285 of the Act.
If you are dissatisfied with the decision, you may write to the ACMA within 28 days of receipt of that notice and request reconsideration of the decision. If you are dissatisfied with the ACMA's decision following reconsideration, you may apply to the Administrative Appeals Tribunal for a review of the decision.
The transferred licence
Any transferred licence will:
continue in force until the date of expiry specified when the licence was issued to the original licensee
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 you as the new licence holder want to relocate the 'base station', this is treated as a separate process from the licence transfer. After the Land Mobile licence has been transferred to you, you must request a change to the location of the 'base station'. This may incur charges for the re-assignment of the base station to a new location.
The licence transfer fee will be sent by invoice when the licence transfer has been completed.
If you qualify for licence fee exemption, you are not required to pay the transfer fee (i.e. as well as exemption from the licence fee, you 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.
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 (i.e. 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 (i.e. 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 (i.e. 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 Advanced, Amateur Standard, Amateur Foundation, 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.