Carrier Licence Conditions (Access and Roaming) Declaration 1998

Commonwealth of Australia

Telecommunications Act 1997

Carrier Licence Conditions (Access and Roaming) Declaration 1998

I, Richard KENNETH ROBERT Alston, Minister for Communications, the Information Economy and the Arts, make the following Declaration under subsection 63 (2) of the Telecommunications Act 1997.

Dated 12 January 1998.

RICHARD ALSTON

Minister for Communications, the Information Economy
and the Arts

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Citation

 1. This Declaration may be cited as the Carrier Licence Conditions (Access and Roaming) Declaration 1998.

Note:  This Declaration commences on gazettal: see Acts Interpretation Act 1901, ss 46A and 48.

Interpretation

 2. (1) In this Declaration:

800 MHz band means:

 (a) in a major capital city—the frequency bands:

 (i) 825 MHz to 845 MHz; and

 (ii) 870 MHz to 890 MHz; and

 (b) elsewhere in Australia—the frequency bands:

 (i) 825 MHz to 830 MHz; and

 (ii) 835 MHz to 845 MHz; and

 (iii) 870 MHz to 875 MHz; and

 (iv) 880 MHz to 890 MHz;

Act means the Telecommunications Act 1997;

air-time means timed use of a public mobile telecommunications service that is provided by a network operated by a carriage service provider;

AMPS has the same meaning as in section 358 of the Act;

coverage means an area in which the customers of a carriage service provider who supplies a public mobile telecommunications service are ordinarily able to make or receive calls by means of that provider’s network, and includes areas within that area in which there is localised lack of effective coverage because of, for example, attenuation within buildings, screening or reflection by natural or man-made features or blind spots;

Note:  It is intended that the coverage of a carriage service provider’s public mobile telecommunications service include areas in which customers of that service are ordinarily able to make or receive calls by means of the provider’s network but, for reasons such as system or network failure or network congestion, are unable to do so from time to time.

eligible carrier means a carrier that uses or proposes to use all or part of the spectrum in the 800 MHz band to supply a public mobile telecommunications service and that:

 (a) holds a spectrum licence that provides for the use of the spectrum; or

 (b) is authorised by the holder of a spectrum licence that provides for the use of the spectrum to use all or part of that spectrum;

whether or not the licence presently authorises the operation of any device;

major capital city means a designated area described in the Schedule to the Spectrum Re-allocation Declaration No. 2 of 1997, to the extent that the area is within the territorial limits of Australia;

re-allocation declaration means Spectrum Re-allocation Declaration No. 1, 2, 3 or 4 of 1997 made under subsection 153B (1) of the Radiocommunications Act 1992;

roam, for a customer of a carriage service provider who supplies a public mobile telecommunications service, means make or receive calls:

 (a) in geographic areas where that service does not have coverage using:

 (i) a public mobile telecommunications service network operated by another carriage service provider that has coverage in that area; and

 (ii) the same mobile telephone; and

 (b) including calls in which there is automatic handover during a call:

 (i) to the extent technically feasible; and

 (ii) on or after 1 January 2000;

specified date, for a frequency band, means the date mentioned in the Schedule for the band;

spectrum licence has the same meaning as in the Radiocommunications Act 1992;

Telstra has the same meaning as in the Telstra Corporation Act 1991.

 (2) In this Declaration, each frequency band includes all frequencies that are greater than the lower frequency, up to and including the higher frequency.

Telstra to sell AMPS air-time in certain circumstances

 3. (1) The carrier licence granted to Telstra is subject to a condition that Telstra must, if requested to do so by an eligible carrier, sell air-time on its AMPS service and supply any related services reasonably required:

 (a) if the request relates to the sale of air-time before the earliest specified date for a frequency band in relation to which the eligible carrier holds a spectrum licence or authorisation—to enable the eligible carrier to resell AMPS services; and

 (b) if the request relates to the sale of air-time on or after the day when the eligible carrier begins supplying a public mobile telecommunications service in spectrum for which the eligible carrier holds a spectrum licence or authorisation—to enable customers of the eligible carrier’s public mobile telecommunications service who have a handset capable of interworking with both Telstra’s AMPS network service and the eligible carrier’s public mobile telecommunications service to roam onto Telstra’s AMPS service.

 (2) Subsection (1) does not impose an obligation if there is in force a certificate issued by the ACCC stating that, in the ACCC’s opinion, compliance with subsection (1) would have the effect of preventing Telstra, or any other carriage service provider being supplied with air time, from meeting its reasonably anticipated requirements, measured at the time the request is made.

 (3) Subsection (1) does not impose an obligation on Telstra if there are reasonable grounds to believe that:

 (a) the eligible carrier would fail, to a material extent, to comply with the terms and conditions on which Telstra complies, or on which Telstra is reasonably likely to comply, with the condition; or

 (b) the eligible carrier would fail, in connection with that condition, to protect:

 (i) the integrity of Telstra’s AMPS service or any related services; or

 (ii) the safety of individuals working on, or using services supplied by means of, Telstra’s AMPS service or any related services.

 (4) Any arrangement to give effect to a request under subsection (1) must be on terms and conditions agreed between Telstra and the eligible carrier.

 (5) However, if Telstra and the eligible carrier are unable to agree on the terms and conditions, they are to be:

 (a) determined by an arbitrator appointed by the parties; or

 (b) if the parties do not agree on the appointment of an arbitrator—determined by the ACCC.

 (6) For a determination of terms and conditions under subsection (5) by the ACCC, the ACCC must have regard to the following matters:

 (a) whether the determination will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services;

 (b) the legitimate business interests of Telstra and Telstra’s investment in facilities used to supply the air-time and related services;

 (c) the interests of all eligible carriers;

 (d) the direct costs of Telstra providing air-time and related services;

 (e) the operational and technical requirements necessary for the safe and reliable operation of a carriage service, telecommunications network or facility;

 (f) the economically efficient operation of a carriage service, telecommunications network or facility.

 (7) The ACCC may also have regard to any other matters it thinks are relevant.

 (8) For paragraph (6) (a), the question whether a determination promotes the long-term interests of end-users of carriage services or of services provided by means of carriage services is to be determined in the same manner as the question whether a particular thing promotes those interests is determined for Part XIC of the Trade Practices Act 1974.

 (9) To assist the ACCC in forming an opinion for subsection (2), the ACCC may:

 (a) consult with the ACA; and

 (b) have regard to any written plan determined under subsection 361 (2) of the Act; and

 (c) have regard to any other matters that the ACCC thinks are relevant.

Certain other carriers to sell air-time to Telstra in certain circumstances

 4. (1) A carrier licence granted to an eligible carrier (other than Telstra) (the licensee) is subject to a condition that the licensee must, if requested to do so by Telstra, sell air-time on its public mobile telecommunications service that uses spectrum in the 800 MHz band and supply any related services reasonably required to enable customers of Telstra’s AMPS service who have a handset capable of interworking with both Telstra’s AMPS network service and the licensee’s public mobile telecommunications service to roam onto the licensee’s service on terms and conditions:

 (a) agreed between the licensee and Telstra; or

 (b) if the parties do not agree—determined by an arbitrator appointed by the parties; or

 (c) if the parties do not agree on the appointment of an arbitrator—determined by the ACCC.

 (2) Subsection (1) does not impose an obligation if there is in force a certificate issued by the ACCC stating that, in the ACCC’s opinion, compliance with subsection (1) would have the effect of preventing the licensee, or any other carriage service provider being supplied with air-time, from meeting its reasonably anticipated requirements, measured at the time the request is made.

 (3) Subsection (1) does not impose an obligation on an eligible carrier if there are reasonable grounds to believe that:

 (a) Telstra would fail, to a material extent, to comply with the terms and conditions on which the licensee complies, or on which the licensee is reasonably likely to comply, with the condition; or

 (b) Telstra would fail, in connection with that condition, to protect:

 (i) the integrity of the licensee’s service or any related services; or

 (ii) the safety of individuals working on, or using services supplied by means of, the licensee’s service or any related services.

 (4) For a determination of terms and conditions under subsection (1) by the ACCC, the ACCC must have regard to the following matters:

 (a) whether the determination will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services;

 (b) the legitimate business interests of the licensee and the licensee’s investment in facilities used to supply the air-time and related services;

 (c) the interests of Telstra;

 (d) the direct costs of the licensee providing air-time and related services;

 (e) the operational and technical requirements necessary for the safe and reliable operation of a carriage service, telecommunications network or facility;

 (f) the economically efficient operation of a carriage service, telecommunications network or facility.

 (5) The ACCC may also have regard to any other matters it thinks are relevant.

 (6) For paragraph (4) (a), the question whether a determination promotes the long-term interests of end-users of carriage services or of services provided by means of carriage services is to be determined in the same manner as the question whether a particular thing promotes those interests is determined for Part XIC of the Trade Practices Act 1974.

 (7) To assist the ACCC in forming an opinion for subsection (2), the ACCC may:

 (a) consult with the ACA; and

 (b) have regard to any matters that the ACCC thinks are relevant.

Examples for subsections 3 (3) and 4 (3):

1.  Evidence that the person making the request is not creditworthy.

2.  Repeated failures by the person making the request to comply with the terms and conditions on which the same or a similar service has been provided.

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  SCHEDULE Section 2

SPECIFIED DATES