Exemption orders and target reduction orders—unjustifiable hardship
130ZY Exemption orders and target reduction orders—unjustifiable hardship
Application
A subscription television licensee may apply to the ACMA for:
an order (an exemption order) that exempts from subsection 130ZV(1) a specified subscription television service provided by the licensee in a specified eligible period; or
an order (a target reduction order) that:
is expressed to relate to a specified subscription television service provided by the licensee in a specified eligible period; and
for each financial year included in the eligible period, provides that a specified percentage is the reduced annual captioning target for the service for the financial year.
For eligible period, see subsection (13).
An application must:
be in writing; and
be in a form approved, in writing, by the ACMA; and
be made in the period:
commencing on 1 July in the financial year immediately before the eligible period specified in the application; and
ending on the first 31 March in the eligible period specified in the application.
Decision on application
If an application under subsection (1) has been made for an exemption order or target reduction order, the ACMA must, after considering the application:
by writing, make the exemption order or target reduction order, as the case may be; or
refuse to make the exemption order or target reduction order, as the case may be.
Criteria for making exemption order or target reduction order
The ACMA must not make the exemption order or target reduction order unless the ACMA is satisfied that a refusal to make the exemption order or target reduction order, as the case may be, would impose an unjustifiable hardship on the applicant.
In determining whether a failure to make the exemption order or target reduction order, as the case may be, would impose an unjustifiable hardship on the applicant, the ACMA must have regard to the following matters:
the nature of the detriment likely to be suffered by the applicant;
the impact of making the exemption order or target reduction order, as the case may be, on deaf or hearing impaired viewers, or potential viewers, of the subscription television service concerned;
the number of people who subscribe to the subscription television service concerned;
the financial circumstances of the applicant;
the estimated amount of expenditure that the applicant would be required to make if there was a failure to make the exemption order or target reduction order, as the case may be;
the extent to which captioning services are provided by the applicant for television programs transmitted on subscription television services provided by the applicant;
the likely impact of a failure to make the exemption order or target reduction order, as the case may be, on the quantity and quality of television programs transmitted on subscription television services provided by the applicant;
whether the applicant has applied, or has proposed to apply, for exemption orders or target reduction orders under this section in relation to any other subscription television services provided by the applicant;
such other matters (if any) as the ACMA considers relevant.
Consultation
Before making an exemption order, or a target reduction order, under subsection (3), the ACMA must:
within 50 days after receiving the application for the exemption order or target reduction order, as the case may be, publish on the ACMA’s website a notice:
setting out the draft exemption order or draft target reduction order, as the case may be; and
inviting persons to make submissions to the ACMA about the draft exemption order or draft target reduction order, as the case may be, within 30 days after the notice is published; and
consider any submissions received within the 30‑day period mentioned in subparagraph (a)(ii).
Commencement of exemption order or target reduction order
An exemption order, or a target reduction order, under subsection (3) comes into force at the start of the eligible period to which the exemption order or target reduction order, as the case may be, relates.
Refusal to make exemption order or target reduction order
If:
an application under subsection (1) has been made for an exemption order or target reduction order; and
the ACMA does not make a decision on the application within the period of 90 days beginning at the start of the day on which the ACMA received the application;
the ACMA is taken, at the end of that 90‑day period, to have decided to refuse to make the exemption order or target reduction order, as the case may be.
If:
an application under subsection (1) has been made for an exemption order or target reduction order; and
the ACMA decides to refuse to make the exemption order or target reduction order, as the case may be;
the ACMA must give written notice of the decision to the applicant.
Publication requirement
If the ACMA makes an exemption order or target reduction order under subsection (3), the ACMA must publish a copy of the order on the ACMA’s website.
Order is not a legislative instrument
An exemption order, or a target reduction order, under subsection (3) is not a legislative instrument.
Target reduction order may specify different percentages for different years
A target reduction order under subsection (3) may specify different percentages for different financial years.
Definitions
In this section:
eligible period means:
a financial year; or
2 consecutive financial years; or
3 consecutive financial years; or
4 consecutive financial years; or
5 consecutive financial years.
subscription television service includes a proposed subscription television service.
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