EXPLANATORY STATEMENT
STATUTORY RULES 1990 NO. 449
ISSUED BY THE AUTHORITY OF THE MINISTER FOR TRANSPORT AND COMMUNICATIONS
Part IV of the Radiocommunications Act 1983 (the Act) provides a basis for planning the use of the radio frequency spectrum. The primary planning instrument is the spectrum plan which divides the radio frequency spectrum into a number of bands and specifies the general purpose or purposes for which each band may be used.
Subsection 19(1) of the Act provides that the Minister may prepare for each band a frequency band plan which makes provision for and in relation to the purpose or purposes for which the band may be used.
Subsection 19(2) allows for a frequency band plan to make special provisions for use of pabts of the band (including any particular frequency or frequency channel).
Subsection 19(3) provides that a frequency band plan may be made either generally or as otherwise provided and, in particular, may apply with respect to a specified area or a specified period.
Subsections 20(1) and (2) of the Act require publication of a proposed frequency band plan prior to promulgation, with an invitation for interested persons to make representations. The Minister is required to give due consideration to any representations.
Subsection 20(4) of the Act enables the Minister to prepare a plan without prior publication and consideration of representations if the Minister is satisfied that the preparation of the plan is a matter of urgency.
The Minister for Transport and Communications, being satisfied that the preparing of amendments to the Multipoint Distribution System Band Plan was a matter of urgency, signed the amendments to the band plan on
The Multipoint Distribution System Band Plan (the Band Plan) (Statutory Rules 1988 No. 181) was notified in the Commonwealth of Australia Gazette on 8 July 1988.
Clause 3 of the Band Plan sets out the primary and secondary purposes for which the 2076 to 2111 MHz and 2300 to 2400 MHz bands may be used. The primary purpose is identified as “Fixed Service - Multipoint Distribution Systems only”.
Multipoint Distribution Systems (MDS) allow transmissions on a bandwidth broad enough for sound and full-motion pictures to multiple receivers. As such they allow a range of commercial applications and there is strong demand for the release of frequencies for MDS.
Clause 4 of the Band Plan makes further provisions for and in relation to the purposes identified.
Subclause 4 (1) divides the possible range of MDS services into five categories.
Subclause 4(2) provides that during Stage 1 (1988-1990) up to 13 of the 19 channels may be allocated at each location with 6 reserved for future use. No services in category 5 (entertainment video,, including pay TV) are to be permitted during this period. Subclause 4(3) provides that during Stage II (1990 plus) all 5 categories are permissible and all 19 channels can be allocated at each location.
Section 24A of the Act prohibits the licensing of domestic pay television services. The prohibition may be lifted by the Proclamation of a date later than 1 September 1990.
The Government has not yet determined when or whether the moratorium on domestic pay television services is to be lifted. It is intended that the end of Stage 1 shall coincide with the lifting of the moratorium on pay television.
It is considered important that no entertainment video services for use in non-domestic premises be licensed under the MDS Band Plan before the moratorium on pay television is lifted, as those licensees would be advantaged over their competitors upon the introduction of pay television, bearing in mind that pay television is expected to involve primarily the transmission of video entertainment and it is likely that there will be a scarcity of available channels.
Accordingly, this amendment to the band plan changes the timing of the end of Stage I and the commencement of Stage II to the date the moratorium is to be lifted.
It was considered necessary to make the amendment as a matter of urgency. Otherwise, there may be grounds available to challenge any decision to refuse an application for an entertainment video MDS licence lodged before the band plan was amended. Without the making of the amendment before 1 January 1991, potential pay television operators could apply for entertainment video MDS licences between 1 January and the time the amendment actually commenced. Those obtaining such licences before the lifting of the moratorium would gain an unfair advantage over their potential competitors before the commencement of pay television.
Overview
The Radiocommunications (Multipoint Distribution System Band Plan) Amendment (No. 2) Statutory Rules 1990 were issued under the authority of the Minister for Transport and Communications to address the urgent need for adjustments to the Multipoint Distribution System Band Plan within the Radiocommunications Act 1992. These amendments were designed to synchronise the stages of the band plan with the lifting of the moratorium on domestic pay television services. The policy objective is to ensure that no entertainment video services for non-domestic use are licensed under the Multipoint Distribution System Band Plan before the moratorium on pay television is lifted, thereby preventing any unfair competitive advantage for potential pay television operators who might otherwise secure licences before the moratorium ends. The amendments were deemed necessary to avoid potential legal challenges and to maintain fair competition within the industry.
Scope and Application
The Radiocommunications Act 1992 provides a framework for the management and regulation of radiocommunications in Australia, including the allocation and use of the radio frequency spectrum. The Act applies to all persons and entities involved in the use of radio frequencies within the Commonwealth, ensuring that the spectrum is used efficiently and effectively to meet national communication needs. The Act empowers the Minister for Transport and Communications to create frequency band plans, which detail the permissible uses and conditions for specific radio frequency bands. These plans can be made either generally or with respect to specified areas or periods. For instance, the Multipoint Distribution System Band Plan outlines the allocation of frequencies for multipoint distribution systems, which facilitate the transmission of sound and full-motion pictures to multiple receivers. The plan distinguishes between primary and secondary purposes, such as fixed services, and delineates stages for the allocation of channels, with certain restrictions on the types of services allowed during specific periods. Importantly, the Act includes provisions to prevent unfair advantages, such as prohibiting the licensing of domestic pay television services until a specified date, thus ensuring a level playing field for all potential service providers. The Act’s provisions are enforced through subordinate instruments, which may extend or restrict the application of the primary legislation as necessary.
Key Provisions
The key operative sections of the Statutory Rules 1990 No. 449 pertain to the amendment of the Multipoint Distribution System Band Plan under the Radiocommunications Act 1992 (Cth) (the Act). Section 19(1) allows the Minister to prepare a frequency band plan specifying the purposes for which each band of the radio frequency spectrum may be used. Section 19(2) enables the Minister to include special provisions for the use of parts of the band, while section 19(3) allows for the plan to be applied either generally or in relation to a specified area or period. Sections 20(1) and (2) require the publication of a proposed frequency band plan with an invitation for representations from interested parties, with section 20(4) providing an exception for urgency. The urgency provision was invoked in this case, and the amendment was signed by the Minister for Transport and Communications.
The Act imposes several obligations and requirements on the parties governed by it. The primary obligation is for the Minister to prepare and promulgate frequency band plans that clearly define the purposes for which each frequency band may be used. This includes making special provisions as necessary, as outlined in section 19(2). The Act also mandates the publication of proposed frequency band plans to allow for public representation, as stipulated in sections 20(1) and (2). However, in cases of urgency, the Minister can bypass the publication and representation requirement, as authorised by section 20(4). This urgency provision was exercised in the preparation of the amendment to the Multipoint Distribution System Band Plan.
The Act imposes specific consequences for non-compliance with its provisions. Offences under the Radiocommunications Act 1992 can lead to both civil and criminal penalties. For instance, unauthorised use of radio frequencies can result in fines and imprisonment, as outlined in the principal Act. The statutory rules themselves do not specify penalties but refer to the overarching penalties provided in the Act. Therefore, any breach of the amended Band Plan could lead to the penalties prescribed under the Radiocommunications Act 1992, which include fines and potential imprisonment depending on the severity of the offence.