Scope of the declaration
A nominated carrier declaration permits the owner(s) of one or more network units to nominate a carrier to supply carriage services over those units to the public, subject to the carrier satisfying the Australian Communications and Media Authority (the ACMA) that it would be in a position to comply with carrier-related obligations in respect of those network units.
The ACMA may only declare one carrier to be the nominated carrier in relation to specific network units.
Application for nominated carrier declaration
Division 4 of Part 3 of the Act provides administrative arrangements for the granting of nominated carrier declarations. A carrier may apply to the ACMA for a nominated carrier declaration. The application must be in writing and in accordance with an application form approved by the ACMA (See T034 - Application for a nominated carrier declaration on the ACMA website). It must be accompanied by:
an application charge
the consent of the owner or each of the owners of the network units
the election of the applicant accepting responsibility for the units and
a description of the network units subject to the application.
The ACMA may make a nominated carrier declaration if it is satisfied that:
the applicant would be in a position to comply with all of the obligations imposed on the applicant in its capacity as the nominated carrier in relation to the network units and
the making of the declaration would not impede the efficient administration of the Act (section 81).
Applicants are required to attach a submission to the application detailing matters that would assist the ACMA to form a view regarding the issues outlined above. For example, the submission should provide details of any arrangements between the owner(s) of the network units and the nominated carrier which provide that the nominated carrier will not be precluded from meeting its carrier-related obligations in relation to the network units concerned. The applicant should also provide details of its approach to complying with the relevant provisions.
(Applicants are required to provide information in the form set out in the application specifying the network unit(s) and owner(s) of those units to which the nominated carrier has accepted responsibility, whether by reference to the categories of network unit described in paragraphs (11) to (16) in the Guide or by reference to any other details that will enable the ACMA to make a declaration in accordance with the Act. Information is also sought regarding the nature of the proposed services to be supplied using the network unit(s). This information will assist the ACMA to meet its obligations under section 8 of the ACMA Act, including to monitor, regulate and report to the Minister on the telecommunications industry and the carrier licensing process.
The ACMA may request further information about the application and can refuse to consider the application until this information is provided.
If the ACMA refuses to make a nominated carrier declaration it will give written notice of the refusal to the applicant and the owner or each of the owners of the network units.
If the ACMA makes a nominated carrier declaration it will give a copy of the declaration to the applicant and each of the owners of the network units and publish the declaration in the Gazette.
The charge imposed on an application for a nominated carrier declaration is due and payable when the application is made to the ACMA. The amount of the application charge is $2,375, representing the charge fixed by the Telecommunications (Charges) Determination 2012.
Revocation of nominated carrier declaration
The ACMA must revoke a nominated carrier declaration in any of the following circumstances:
the owner or any of the owners of the network units gives the ACMA a written notice stating that the owner does not consent to the continued operation of the declaration or
the nominated carrier gives the ACMA a written notice stating that it does not accept responsibility for the units.
The ACMA may revoke a nominated carrier declaration if the ACMA is satisfied that, if it were assumed that the nominated carrier were to apply for the declaration, the ACMA would refuse to make the declaration. The ACMA will give the nominated carrier a written notice setting out the proposal to revoke the declaration and inviting the nominated carrier to make a submission on the proposal. The ACMA will consider any submission provided by the nominated carrier within a period specified in the notice, being at least 7 days.
Where the ACMA decides to revoke a declaration, it will give a copy of the revocation to the former nominated carrier and the owner or each of the owners of the network units concerned. The revocation will be published in the Gazette.
Reviewable decisions of the ACMA
Part 29 of the Act provides that certain decisions may be reviewed by the Administrative Appeals Tribunal following a process of internal reconsideration by the ACMA. A decision to refuse to make a nominated carrier declaration or a decision to revoke a declaration may be subject to merits review under this Part (see also Schedule 4 to the Act).
Register of carrier licences and nominated carrier declarations
The ACMA will maintain an electronic register of all carrier licences and nominated carrier declarations currently in force and the conditions of such licences. This register is available on the ACMA website.
Part 27 of the Act provides, in effect, that the ACMA may, by notice, require a carrier, service provider or any other person to give information or to produce a document, if it has reason to believe the person has information or a document that is relevant to the performance of its telecommunications regulatory functions or the exercise of any of its telecommunications powers.
The ACMA may also make rules requiring one or more specified carriers or carriage service providers to keep and retain records. A carrier or carriage service provider must comply with any record-keeping rules that are applicable.
(Except as required by law, the ACMA will not disclose commercially confidential information.