EXPLANATORY STATEMENT

Issued by the Authority of the Australian Communications and Media Authority

Radiocommunications (Cellular Mobile Telecommunications Devices) Class Licence Variation 2009 (No 1 )

Radiocommunications Act 1992

Legislative Provisions

Section 134 of the Radiocommunications Act 1992 (the Act), subject to section 136 of the Act, provides the Australian Communications and Media Authority (ACMA) the power to vary a Class Licence.

The Radiocommunications (Cellular Mobile Telecommunications Devices) Class Licence Variation 2009 (No.1) commences on the day after it is registered.

The Radiocommunications (Cellular Mobile Telecommunications Devices) Class Licence Variation 2009 (No.1) is a disallowable instrument for the purposes of the Legislative Instruments Act 2003.

Purpose

The Radiocommunications (Cellular Mobile Telecommunications Devices) Class Licence Variation 2009 (No.1) (the Variation) varies the Radiocommunications (Cellular Mobile Telecommunications Devices) Class Licence 2002 (the 2002 Class Licence) to more clearly identify the types of telecommunications devices that may be operated under the 2002 Class Licence and to remove some unnecessary legislative duplication. 

Background

It is a requirement of the Act that the operation of all radiocommunications transmitters within Australia is authorised by a radiocommunications licence.

Class licensing is an effective and efficient means of spectrum management for services where a limited set of common frequencies is employed, and equipment is operated under a common set of conditions.  Class Licensing also involves minimum licence administration by ACMA.  A class licence sets out the conditions under which any person is permitted to operate devices; it is not issued to an individual user, and does not involve the payment of licence fees.

The Cellular Mobile Telephone Service (CMTS) operates in a range of frequency bands to provide mobile telecommunications services such as mobile phones and computer wireless data links.  The operation of CMTS base station transmitters in some frequency bands is authorised under administratively issued apparatus licences[1].  The operation of mobile stations that communicate with the apparatus licensed CMTS base stations is authorised under the 2002 Class Licence.

The CMTS is transitioning from second generation (2G) to third generation (3G) telecommunications devices.  3G telecommunications devices are capable of providing a wider range of services such as video and high speed access to the Internet.  

The making of the Variation stems from concern expressed by two CMTS providers, Optus and Vodafone, that it was not entirely clear that the 2002 Class Licence authorised the operation of 3G mobile telecommunications devices.

Impact of introducing the CMTS Variation

The introduction of the Variation imposes no costs or other requirements on individuals, business or the economy.  3G telecommunications devices were authorised to operate under the 2002 Class Licence before it was varied by the Variation.  The Variation clarifies that 3G telecommunications devices may be operated under the 2002 Class Licence. 

The Variation also deletes some unnecessary legislative duplication.  Presently both the 2002 Class Licence and the Telecommunications Labelling (Customer Equipment and Customer Cabling) Notice 2001 (the Notice) which is made under subsection 407(1) of the Telecommunications Act 1997, specify the applicable technical standards. The Variation removes the need to identify new technical standards in the 2002 Class Licence.

Consultation

In 2006 ACMA consulted with the mobile telecommunications carriers about the potential deployment of 3G services in the 900 MHz CMTS band.  The 900 MHz band at that time was only used to provide 2G telecommunications services.  Resulting from that consultation, ACMA agreed that staff should commence work on varying the 2002 Class Licence to more clearly authorise the operation of 3G mobile phone handsets.

In accordance with section 136 of the Act, a Notice about the proposed Variation and a background paper was published in the Government Notices Gazette on 23 April 2008.  Submissions were received from Optus, Telstra, the Australian Information Industry Association and Stanimore Pty Ltd. While all four submissions generally supported the thrust of the Variation to clarify the applicability of the 2002 Class Licence to 3G devices, Telstra qualified their support to the extent that 2G services in the band continued to be protected from interference.  

Optus, the AIIA and Stanimore P/L also supported the changes that eliminated the legislative duplication. Telstra expressed concern that removing the requirement to specify the technical standards in the 2002 Class Licence would diminish transparency of process and public awareness.  In particular Telstra were concerned that, without consultation, new technologies could be introduced that were not fully compatible with existing 2G systems.

ACMA considers that the processes for allowing the use of new technologies in the CMTS would continue to be robust. The procedures for making technical standards under section 378 of the Telecommunications Act 1997 require that ACMA must, as far as practicable, try to ensure that interested persons have an adequate opportunity to make representations about a proposed standard.  Subject to section 18, section 17 of the Legislative Instruments Act 2003 also requires that the making of instruments such as the Notice involves appropriate consultation where the instrument is likely to affect business or restrict competition.  Additionally all devices proposed to be operated in conjunction with a CMTS must receive the approval of all CMTS operators. 

Regulation Impact Statement

ACMA considered that a Regulation Impact Statement was not required in relation to the Variation because the Variation is essentially minor and machinery in nature; clarifying the existing legislation without making any substantive changes.  ACMA also took into account that the Variation imposed no new costs or compliance requirements on business and created no restrictions on competition.

 Notes about the instrument are set out in Attachment 1.

ATTACHMENT  1

Notes about the instrument

[1] Section 1 Name of Variation

Section 1 provides for the name of the class licence variation; the Radiocommunications (Cellular Mobile Telecommunications Devices) Class Licence Variation 2009 (No.1).

[2] Section 2 Commencement

Section 2 provides for the commencement of the class licence variation on the day after it is registered.

[3] Section 3 Variation of Radiocommunications (Cellular Mobile                                            Telecommunications Devices) Class Licence 2002

Section 3 provides that Schedule 1 varies the Radiocommunications (Cellular Mobile Telecommunications Devices) Class Licence 2002 (the Class Licence 2002).

[4] Schedule 1  Variations

Section 3  Definitions  - Definition of device compliance day (Section (a))

Item [1] of Schedule 1 omits the reference to ‘handsets’ in section (a) to reflect that the class licence authorises the use of different types of radiocommunications devices and not just mobile phone ‘handsets’.

Section 8  Conditions – technical standards applying before commencement of Radiocommunications (Cellular Mobile Telecommunications Devices) Class Licence Variation 2009 (No. 1)

Item [2] of Schedule 1 in part substitutes section 8 with the effect that the technical standards mentioned in Schedule 1 of the Class Licence 2002 now only apply to devices with a device compliance day before the commencement of the class licence variation. 

Section 8A  Conditions – technical standards applying after commencement of Radiocommunications (Cellular Mobile Telecommunications Devices) Class Licence Variation 2009 (No. 1)

Item [2] of Schedule 1 also, in part, substitutes section 8 with the effect that technical standards applicable to devices with a device compliance day after the commencement of the class licence variation (which are the same as the technical standards previously also applied through Schedule 1 of the Class Licence 2002) are applied through the Telecommunications Labelling (Customer Equipment and Customer Cabling) Notice 2001. 

Section 9, Note 1

Item [3] of Schedule 1 varies the Class Licence 2002 to reflect that the Australian Communications and Media Authority has replaced the Australian Communications Authority as the radiocommunications and telecommunications regulator. 

Schedule 1

Item [4] of Schedule 1 of the class licence variation substitutes Schedule 1 of the Class Licence 2002 to include additional technical standards.

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[1] In other frequency bands the operation of CMTS base and mobile stations is authorised under technology-flexible, market-oriented Spectrum licences.