The full legal description of the Terms and Conditions for Local FM Radio Broadcasting Licences follows.
Terms and Conditions for Local FM Radio Broadcasting Licences
Principles
1. The policy underlying this allocation is contained in the Broadcasting Programme of Action 2006: ‘enhancing regional and community broadcasting’,
2. Particular priorities for non-commercial services are to provide licences for:
- the provision of community access radio services where either a service does not already exist or where the coverage from an existing community access service in the area is compromised for technical reasons.
- existing services that will relinquish AM for FM frequencies.
- new services for communities of interest, including network services.
3. As a general principle, the owners of a ‘local’ radio broadcasting station must:
- demonstrate a strong geographic, social or cultural affinity with the target audience;
- locate the offices and studios of the radio station operating under the licence within the coverage area;
4. As a general principle, the owners of a local commercial radio licence must:
- have no interest in other radio broadcasting licences and have no economic, contractual, operational, or family associations with holders of such licences;
- broadcast identifiably ‘local’ content from the studio to the coverage area during peak hours (0600hrs to 1000hrs and 1600hrs to 1900hrs).
5. Where there is any doubt as to interpretation of these principles or of the Terms and Conditions set out below, the decision of Chief Executive of the Ministry of Business Innovation and Employment or the Ministry for Culture and Heritage, as the case may be, will be final.
Eligibility
6. The licence is to be registered in the name of a natural person or persons, or a legal entity owned or governed by a natural person or persons (“the owner”), normally resident in the coverage area for which the licence is held. This condition must be maintained throughout the term of the licence. The inclusion of the owner in the Electoral Roll for an electorate substantially within the coverage area will be accepted as evidence of normal residence.
7. The applicant is to demonstrate, in the application, the technical and financial capacity available to it to fulfil the outcomes of the proposal.
8. Applications are to demonstrate an understanding of the future broadcasting environment of the local community, including possible digital and multi-media applications.
9. All applications and annual reports will contain a full list of shareholders, directors, board members and/or trustees as appropriate.
Additional Requirements for Commercial licences
10. The applicant may not hold (directly, or through associations[i]) any controlling interest in other licences suitable for sound broadcasting in the coverage area or elsewhere in NZ. This condition must be maintained throughout the term of the licence.
11. No shares or other financial interest in the licensed broadcasting operation may be owned or funded by a third party with any controlling interest in other licences suitable for sound broadcasting in the coverage area or elsewhere in NZ. This condition must be maintained throughout the term of the licence.
12. An annual statutory declaration affirming that conditions 6, 7, 9, 10 and 11 have been adhered to must be appended to the annual compliance report.
13. If an applicant holds a full commercial licence in an area, but seeks to acquire a ’local commercial’ licence, then it must provide a statutory declaration of intent to cancel the full commercial licence, along with signed cancellation forms, in order to be eligible to acquire a local commercial licence.
Additional Requirements for Non-commercial licences
14 The applicant is to be a company, or an incorporated society or charitable trust or other entity, any of which must be operated on a charitable or “not-for-profit” basis.
15. The applicant is to confirm, in the application for the licence, a fundraising mechanism which will allow it to function with not more than six minutes of commercials per clock hour and no more than 50% of revenue derived from advertising. Other income may include sponsorship (as defined by the Ministry for Culture and Heritage in 2006).
16. The applicant is to demonstrate, in the application for the licence, the extent to which they will fulfil a priority community need (or needs), as defined in the Regional and Community Broadcasting Framework Policy Framework, and which does not duplicate existing services.
Operations
17. The station’s office and studio operations are to be located in the physical area within the coverage of the licence.
18. The service must operate for a minimum of 12 hours daily (unless otherwise negotiated).
19. Non-commercial broadcasters, could meet this latter requirement by arrangements with other non-commercial broadcasters on the sharing of New Zealand material which would not otherwise be broadcast in the area.
20. The licensee will establish and maintain working relationships with such significant groups within the local community as territorial and regional government, emergency management, iwi and runanga, educational institutions, youth and community groups, and organisations for the disabled and will facilitate the provision of relevant content from such organisations.
Additional Requirements for Commercial licences
21. Under a commercial licence, locally generated programming shall be designed with a strong emphasis on previously unmet needs and interests of listeners, and include the following content broadcast from within the coverage area:
- local news, information, stories and history;
- discussion of community issues, including political processes;
- programming aimed to inform, entertain and involve a specified or under-served local community or communities of interest.
22. Under a commercial licence, locally generated programming will be broadcast for at least one third of the hours of broadcasting between 0600hrs and 2000hrs.
Additional Requirements for Non-commercial licences
23. Under a non-commercial licence, locally generated programming shall be designed to attract a wide range of listening audiences in the coverage area with a focus on previously unmet needs and interests of listeners, and include some or all of the following content broadcast from within the coverage area:
- local news, information, stories and history;
- discussion of community issues, including political processes;
- programming aimed to inform, entertain and involve a specified or under-served local community or communities of interest.
Compliance
24. All applications for a licence must be accompanied by sufficient evidence to verify that conditions 6, 7, 8 and 9 (and, for commercial licences, 10 and 11) have been met. These conditions are to be reconfirmed annually in a compliance report, not less than three months before the anniversary of the licence being granted.
25. A licensee will commence broadcasting services within one year of obtaining the licence or face revocation of the licence without refund.
26. All licensees will comply with the requirements of the Broadcasting Act and Broadcasting Standards Authority regarding station identification, codes of broadcasting practice and complaints procedures.
27. The licensee will agree to a compliance audit being conducted at any time to demonstrate that allocation conditions are being adhered to.
28. The licensee shall respond in writing to individual complaints received or referred to them within 21 days of receipt and shall provide copies of the complaint and response to the Ministry of Business Innovation and Employment or the Ministry for Culture and Heritage as appropriate. The relevant Chief Executive may undertake further investigation, including a compliance audit, as seen necessary.
29. The Chief Executive of the Ministry of Business Innovation and Employment will retain the right to modify, transfer, or revoke the licence in terms of the Radiocommunications Act 1989.
30. All licences are subject to the provisions of the Radiocommunications Act 1989 and the Radiocommunications Regulations 2001. Where a compliance issue can not be referenced directly to the Act or Regulations, these Terms and Conditions will apply. In all cases, the decision of the Chief Executive of the Ministry of Business Innovation and Employment will be final.
Additional Requirements for Commercial licences
31. The licensee will submit to the Chief Executive of the Ministry of Business Innovation and Employment, not less than three months before each anniversary of the granting of the licence, a compliance report demonstrating that licence conditions are being adhered to, including relevant financial information and a statutory declaration affirming the broadcaster’s adherence to the licence conditions.
32. The licensee will make a copy of each annual compliance report available to the general public for at least three years from the original publication date.
33. A commercial licensee may not transfer, modify, lease or share the frequency, or otherwise surrender control of transmissions, without permission in writing from the Chief Executive of the Ministry of Business Innovation and Employment. An application for such permission shall demonstrate that any new owner or lessor meets the same criteria as the initial applicant.
Additional Requirements for Non-commercial Licences
34. The licensee will submit to the Chief Executive of the Ministry for Culture and Heritage, not less than three months before each anniversary of the granting of the licence, a compliance report demonstrating that licence conditions are being adhered to, including relevant financial and ownership information.
35. The licensee will make a copy of each annual compliance report available to the general public for at least three years from the original publication date.
36. Staff may not be paid any more than the industry standard for work of similar duties.
37. Members of the governing body may not directly profit from the enterprise.
38. The radio operation shall not be primarily intended to raise funds for charity.
39. A non-commercial licensee may not transfer, modify, lease or share the frequency, or otherwise surrender control of transmissions on the licence, without permission in writing from the Chief Executive of the Ministry for Culture and Heritage.
Non-compliance
40. The licensee may voluntarily relinquish the licence to the Crown if it is no longer able to meet the eligibility and operational criteria.
41. If found to be non-compliant, the licensee will be served with a written notice (warning) by the Chief Executive of the Ministry of Business Innovation and Employment or the Ministry for Culture and Heritage, as appropriate, with a requirement to be compliant within a specified period.
42. For continuing non-compliance a licence may be revoked by the Chief Executive of the Ministry of Business Innovation and Employment without financial compensation, and future licence applications from the same or any associated applicant refused.
[i] For the purposes of these Terms and Conditions, person A is an Associate of person B (and vice versa) if:
(a) person A is a body corporate, and person B is (i) a director of that body corporate; or (ii) a Related Body Corporate of that body corporate; or (iii) a director of a Related Body Corporate of that body corporate; or (iv) a partner of the body corporate in terms of the Partnership Act 1908 in a Business; or
(b) person A is a spouse, civil union partner, de facto partner, child (including step-child), or parent (including step-parent) of person B; or
(c) person A is a nominee or trustee for person B; or
(d) person A is a partner of person B in terms of the Partnership Act 1908 in a Business; or
(e) person A is a director of a body corporate, or person A holds any voting power in the body corporate, and person A and person B are parties to an agreement relating to (i) the control of that body corporate; or (ii) at least 20% of the voting power in that body corporate; or
(f) person A holds or controls directly or indirectly at least 20% of the voting power, or at least 20% of the issued shares, in person B; or
(g) person B (or a director, employee or other Associate of person B) is the trustee of a trust acting in that capacity and person A is a settlor, beneficiary, or trustee, of that trust; or
(h) person A is a person who, in making a decision or exercising a power materially affecting a Business, is accustomed, or under an obligation, or proposes or is likely (in the Chief Executive’s sole opinion), to act in accordance with the directions or instructions or wishes of person B; or
(i) person A and person B are acting, or propose or are likely to act (in the Chief Executive’s sole opinion), jointly or in concert in relation to a Business; or
(j) person A (being a person other than the Chief Executive) and person B are parties to an Agreement that entitles one of the persons to the Agreement to a substantial degree of influence, or the right to obtain a substantial degree of influence, over radio frequency spectrum in respect of which the other person is or will be (subject to these Terms and Conditions) a rightholder under the Act; or
(k) person A is an Associate of another person that is an Associate of person B under these Terms and Conditions, including an Associate in a chain of Associates;
For the avoidance of doubt, a commercial arm lengths Agreement between any persons which solely enables one person to use the other person’s spectrum rights will not, of itself, be considered to result in that person being an Associate of the other person.
