ACMA press release

The Australian Communications and Media Authority has accepted an enforceable undertaking from Fairfax Media Limited (Fairfax) to divest its commercial radio licence in Ipswich, River 94.9.

‘The new enforceable undertaking requires Fairfax to divest its commercial radio licence in Ipswich and to appoint an independent manager to operate the business during the divestment period,’ said Chris Chapman, ACMA Chairman.

On 4 October 2007, Fairfax and its directors applied to ACMA for prior approval of temporary breaches of certain media control rules under the Broadcasting Services Act 1992 (BSA).

On 17 October 2007, ACMA gave approval for the breaches by Fairfax and its directors. In support of its application for prior approval of the breaches, Fairfax offered ACMA an enforceable undertaking under Part 5 and Part 14D of the BSA, which was accepted.

‘ACMA is now satisfied that the enforceable undertaking offered by Fairfax should be sufficient to ensure – as required by the Act – that necessary actions will be taken to remedy the relevant breaches within the appropriate time,’ Mr Chapman said.

The undertaking has been published on ACMA’s website. Details of temporary breaches approved by ACMA are provided in the Register of Notices and Approvals under Part 5 of the BSA.

Media contact: Donald Robertson, ACMA Media Manager, on (02) 9334 7980. 


Backgrounder


Prior approval under the BSA - breaches of the statutory control rules


The statutory control rules are the limitations on control and directorships set out in Divisions 2 and 3 of Part 5 of the Broadcasting Services Act (for example, the limit in section 54 of being in a position to control a maximum of two commercial radio licences in a licence area).

A person may commit an offence by being in breach of a limitation on control or directorships. There will be no offence where ACMA has approved the breach in advance of the transaction by which it arose.

Before a transaction takes place or an agreement is entered into that would place a person in breach of the statutory control rules, the person may apply to ACMA under section 67 for approval of the breach.

If the preconditions are satisfied, ACMA may approve the breach and specify a period during which the person must take action to ensure the breach ceases. This period cannot be more than two years.

Fairfax’s position to exercise control of licences in the Brisbane radio licence area


Fairfax’s original breaches arose through the operation of a charge to be granted to Fairfax over the shares held by Macquarie Media Group in Southern Cross Broadcasting (Australia) Limited (SCB). The charge was associated with the acquisition by Fairfax of commercial radio licences formerly owned by SCB. The charge was released on 9 November 2007 causing all breaches to cease, except for those in the Brisbane/Ipswich radio licence area.

Before coming into a position to exercise control of SCB Fairfax was in a position to exercise control of a commercial radio licence in the combined Brisbane/Ipswich licence area (River 94.9). SCB controlled two commercial radio licences in Brisbane/Ipswich (4BC and 4BH).

The charge over the SCB shares granted to Fairfax resulted in breaches of the statutory control rules in relation to this licence area (sections 54 and 56 of the BSA) because the acquisition gave Fairfax control of radio licences 4BC and 4BH in Brisbane at the same time it controlled River 94.9.

ACMA gave notice to Fairfax on 17 October 2007 under section 67 of the BSA, approving the breaches and requiring action to be taken in relation to the breaches. This action must be consistent with the enforceable undertakings given by Fairfax.

Further information on media groups and media operations, and their controllers, in each licence area in Australia is available by consulting the Register of Controlled Media Groups and the Media Diversity Report on ACMA’s website.