Radiocommunications (Class of Services) Amendment (Removal of 27 GHz Band) Determination 2015

Administered by Department of Communications and the Arts

Legislation au F2015L01773 Not in force Legislative Instrument

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Explanatory Statement

 

Radiocommunications Act 1992

Acts Interpretation Act 1901

 

Radiocommunications (Class of Services) Amendment (Removal of 27 GHz Band) Determination 2015

 

Issued by the authority of the Minister for Communications

 

 

Legislative Authority

 

Subsection 82(3) of the Radiocommunications Act 1992 (Act) provides that the Minister for Communications (Minister) may determine a class of services for which reissuing spectrum licences to the same licensees would be in the public interest. Subsection 33(3) of the Acts Interpretation Act 1901 relevantly provides the Minister with the power to amend any notice made under subsection 82(3) of the Act.

 

Purpose

 

The purpose of this Notice is to amend the Radiocommunications (Class of Services) Determination 2012 (Class of Services Determination).

 

The Class of Services Determination allows the ACMA to re-issue spectrum licences used to provide certain classes of services to existing licensees without following procedures determined under section 60 of the Act. Relevantly, the Class of Services Determination empowers the ACMA to re-issue spectrum licences authorising the operation of radiocommunications devices using the parts of the spectrum between 26.5 GHz and 27.5 GHz (the 27 GHz band), where those licences have been used to provide satellite services.

 

The ACMA is preparing to issue apparatus licences rather than spectrum licences for the 27 GHz band. The amendment of the Class of Services Determination to remove satellite services in this band will facilitate that process, ensuring that it is clear that the Minister is no longer satisfied that it is in the public interest for spectrum licences to be re-issued in the band.

 

Background

 

The Class of Services Determination was made in 2012 by the then Minister for Broadband, Communications and the Digital Economy under subsection 82(3) of the Act. This lists six classes of services in different spectrum bands where the Minister considered that it would be in the public interest for spectrum licences used to provide these services to be re-issued to the existing licensees. This allows the ACMA to re-issue relevant spectrum licences without following procedures determined under section 60 of the Act, which the ACMA make to set market processes for the allocation of spectrum licences (e.g. by auction).

 

Separately, the Minister is repealing the Radiocommunications (Spectrum Designation) Notice No. 1 of 2000 dated 31 May 2000 (Designation Notice). The Designation Notice requires the ACMA to licence the band by issuing spectrum licences rather than apparatus licences. The Designation Notice is being repealed as the ACMA is preparing to issue apparatus licences in the 27 GHz band that will commence after current spectrum licences expire.

 

Spectrum licences in the 27 GHz band are currently held by XYZed LMDS Pty Ltd, IPSTAR Australia Pty Ltd and NBN Co Ltd and expire on 17 January 2016.

 

There is currently little demand for spectrum licences in the 27 GHz band. Reverting the 27 GHz band from wide area spectrum licencing to site‑specific apparatus licensing will allow current licensees to continue to deliver services while making it possible for new services to be provided using this spectrum. That is, the spectrum may be put to more productive use in the economy.

 

This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA). As it is a solely amending instrument, it will be repealed by section 48A of the LIA on the day after it commences.

 

Regulation Impact Statement

 

The Office of Best Practice Regulation (OBPR) advised that a Regulation Impact Statement is not required for the Determination (OBPR reference number 19151).

 

Statement of Compatibility with Human Rights

 

This statement of compatibility is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

This Notice is compatible with human rights as it does not raise any human rights issues.

 

Consultation

 

The ACMA has undertaken a review of the 27 GHz band.

 

In August 2014, the ACMA released the discussion paper, Review of Licensing Arrangements in the 27 GHz Band (the Consultation Paper). The Consultation Paper reviewed the spectrum management arrangements in the 27 GHz band and put forward a preliminary view that a reversion from spectrum to apparatus licensing would be the most high value use of the bands. The purpose of the Consultation Paper was to stimulate discussion and gather information from stakeholders to assist the ACMA in determining/identify the most appropriate licensing arrangements, which will maximise the overall public benefit and derive the highest value use from the spectrum in the future.  

 

The Consultation Paper stated that the technical framework for spectrum licences in the 27 GHz band was optimised for Local Multipoint Distribution Services (LMDS). However, this technology has not been widely deployed either in Australia or internationally. In Australia, the 27 GHz band is currently used for satellite services. The ACMA’s analysis indicates that the 27 GHz band is currently under‑utilised, but demand for access to the band by a range of services, including space research, is increasing.

 

After the release of the Consultation Paper, the ACMA received seven submissions. These have been published on the ACMA website at www.acma.gov.au. All submissions agreed with the ACMA’s view that licensing arrangements in the 27 GHz band should change from spectrum to apparatus licensing.

 

The ACMA separately consulted with the incumbent spectrum licence holders, seeking their views on the future of the spectrum licences. Incumbent spectrum licence holders did not oppose a reversion to apparatus licensing in the 27 GHz band provided continuity of service could be assured.

 

The ACMA considers the best utilisation of the 27 GHz band is to revert to apparatus licensing, following the expiry of the existing spectrum licences. International spectrum allocation suggests there is growing demand to use the 27 GHz band for fixed services and fixed satellite services. It is the ACMA’s view that site-specific apparatus licensing allows for a more varied and cost‑effective use of the 27 GHz band than area‑wide spectrum licensing.

 

In accordance with subsection 36(3) of the Act, on 7 July 2015, the ACMA recommended to the former Minister that the Designation Notice be repealed. The Minister has accepted the ACMA’s recommendation, and is making the Radiocommunications (Spectrum Designation—27 GHz Band) Repeal Notice 2015 to repeal the Designation Notice.

 

The Minister is consequentially making this Determination to amend the Class of Services Determination to ensure that it is clear that the Minister is no longer satisfied that it is in the public interest for spectrum licences to be re-issued in the band.

 

The ACMA will work with incumbent spectrum licensees to enable the transition to apparatus licences in the 27 GHz band to ensure continuity of service where this is sought by current licensees.

 


Notes on Sections

 

Section 1 – Name

 

Section 1 provides that the name of the Notice is the Radiocommunications (Class of Services) Amendment (Removal of 27 GHz Band) Determination 2015.

 

Section 2 – Commencement

 

Section 2 provides that the Determination will commence on the day after it is registered on the Federal Register of Legislative Instruments.

 

Section 3 – Schedules

 

Section 3 provides that each instrument that is specified in a Schedule to this Determination is amended or repealed as set out by the applicable item, and all other items in a Schedule to this Determination have effect according to their terms.

 

Schedule 1—Amendments

 

Radiocommunications (Class of Services) Determination 2012

 

Item 1 – Section 6

 

Item 1 of Schedule 1 amends section 6 of the Class of Services Determination. The amendment omits satellite services provided in the 27 GHz band.

 

This amendment has the effect of ensuring that it is clear that the Minister is no longer satisfied that it is in the public interest for spectrum licences to be re-issued in the band. This is because apparatus licences are planned to be issued in this band rather than spectrum licences.

Overview

The Radiocommunications (Class of Services) Amendment (Removal of 27 GHz Band) Determination 2015, issued by the Minister for Communications, amends the Radiocommunications (Class of Services) Determination 2012 to address the under-utilisation of the 27 GHz band, which is currently allocated for satellite services. The amendment removes satellite services from the list of services for which spectrum licences can be re-issued without following certain market processes, reflecting the shift towards apparatus licensing for this band. This change aims to facilitate the transition to more productive use of the spectrum, in line with growing international demand for fixed services and fixed satellite services. The Minister's decision to make this amendment is consistent with the Radiocommunications Act 1992, which allows for the determination of classes of services where reissuing spectrum licences would be in the public interest, and the Acts Interpretation Act 1901, which grants the Minister the power to amend notices made under the Radiocommunications Act. The policy objective is to ensure that the spectrum is used more efficiently and effectively, maximising its value to the economy.

Scope and Application

The Radiocommunications (Class of Services) Amendment (Removal of 27 GHz Band) Determination 2015 applies to the existing spectrum licence holders in the 27 GHz band, specifically XYZed LMDS Pty Ltd, IPSTAR Australia Pty Ltd, and NBN Co Ltd, and to the Australian Communications and Media Authority (ACMA) in its role of administering and regulating spectrum use in Australia. The Determination amends the Radiocommunications (Class of Services) Determination 2012 by removing satellite services provided in the 27 GHz band, thereby clarifying that the Minister is no longer satisfied that it is in the public interest for spectrum licences to be reissued in this band. This change is in anticipation of the ACMA issuing apparatus licences instead of spectrum licences for the 27 GHz band. The Determination operates nationally, impacting all entities operating within the Commonwealth of Australia that are involved in spectrum licensing and usage. It does not introduce new exclusions or exemptions but rather modifies existing classifications to reflect the shift in licensing practices. This amendment is effective from the day after the Determination is registered on the Federal Register of Legislative Instruments, and any further details or extensions regarding its application are to be found in subordinate instruments issued under the authority of the Minister for Communications.

Key Provisions

The Radiocommunications (Class of Services) Amendment (Removal of 27 GHz Band) Determination 2015 (the Determination) makes amendments to the Radiocommunications (Class of Services) Determination 2012 (the Class of Services Determination) (sections 1 and 3). The Determination removes satellite services in the 27 GHz band from the list of services for which reissuing spectrum licences to the same licensees would be in the public interest (Schedule 1, item 1). This amendment is significant as it aligns with the shift from issuing spectrum licences to apparatus licences for the 27 GHz band, thereby facilitating the transition to more productive use of the spectrum. The Determination ensures that it is clear that the Minister is no longer satisfied that it is in the public interest for spectrum licences to be re-issued in this band. The Determination imposes specific obligations on the Australian Communications and Media Authority (ACMA) and the relevant licensees. The ACMA is tasked with transitioning the 27 GHz band from spectrum to apparatus licensing and ensuring that current licensees can continue to deliver services while new services can be provided using this spectrum. The licensees, including XYZed LMDS Pty Ltd, IPSTAR Australia Pty Ltd, and NBN Co Ltd, are required to comply with the new licensing arrangements and ensure continuity of service as the transition occurs. The Determination also requires the ACMA to work with incumbent spectrum licensees to facilitate this transition effectively (section 3). There are no specific offences, penalties, or civil/criminal consequences outlined for breaches of the Determination. However, any failure to comply with the new licensing arrangements or to ensure continuity of service could potentially lead to administrative actions by the ACMA. The Determination itself does not specify maximum penalties but implies that non-compliance could result in regulatory consequences under the Radiocommunications Act 1992. The repeal of the Radiocommunications (Spectrum Designation) Notice No. 1 of 2000 further underscores the shift in licensing approach, which is intended to make better use of the spectrum in the 27 GHz band.

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