Radiocommunications (Interpretation) Amendment Determination 2010 (No. 3)

Administered by Department of Communications and the Arts

Legislation au F2010L02244 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by the Authority of the Australian Communications and Media Authority

Radiocommunications (Interpretation) Amendment Determination 2010 (No. 3)

Radiocommunications Act 1992

Purpose

The purpose of the Radiocommunications (Interpretation) Amendment Determination 2010 (No. 3) (the Amendment Determination), and related instruments, is to delete legislative references to the MDS (Multipoint Distribution Station) Apparatus licence type.

The MDS Apparatus licence type is redundant. There have been no MDS licences on issue since March 2004. There is no identifiable need to issue any MDS licences in the future.

The Amendment Determination also includes mechanical amendments to reflect the July 2005 merger of the Australian Communications Authority (ACA) and Australian Broadcasting Authority (ABA) to form the Australian Communications and Media Authority (the ACMA).

The Amendment Determination amends the Radiocommunications (Interpretation) Determination 2000.

Legislative Provisions

Subsection 64 (1) of the Australian Communications and Media Authority Act 2005 (the ACMA Act) provides that the ACMA may make a written determination defining one or more expressions used in specified laws of the Commonwealth.

Relevant provisions within the Radiocommunications Act 1992 (the Radiocommunications Act) include: section 5, paragraphs 7 (1) (a) and (b), subsection 10A (1), paragraph 16 (1) (ca), subsections 30 (1), 32 (1), 34 (1) and 98 (1), paragraphs 107 (1) (f) and 108A (1) (e), subsection 115 (1), section 119, subsections 131AC (1) and 132 (1), section 134, paragraphs 144 (1) (c), (d) and (e), paragraphs 147 (1) (c), (d) and (e) and subsection 300 (1).

Subsection 33(3) of the Acts Interpretation Act 1901 provides that when exercising its power to make written instruments under an Act, the ACMA also has the power to repeal, rescind, revoke, amend, or vary such instruments.

A Determination made under subsection 64 (1) of the ACMA Act is a disallowable instrument for the purposes of section 42 of the Legislative Instruments Act 2003 (the LIA).

Background

MDS Apparatus licences were issued originally by the Spectrum Management Agency (the SMA) in 1994 in the bands 2076-2111 MHz (the A-Band) and 2302-2400 MHz (the B-Band) to authorise the transmission of a broad range of sound and video services, including subscription television services.

In March 1999, the SMA’s successor organisation, the Australian Communications Authority (ACA), released a discussion paper entitled “Future Uses of the Multipoint Distribution System (MDS) Bands”. This paper was released in response to the impending expiry of many MDS licences and developments concerning the 3G mobile telecommunications service.

On 29 June 1999, the ACA announced that MDS A-Band licences would only be renewed until 25 July 2002, with the spectrum then to be reallocated for 3G mobile telecommunications and fixed point to point services.[1] Notwithstanding this, the 2.1 GHz Band Frequency Band Plan 2002 made provision for some regional MDS services to operate until 31 March 2004.

The ACA also announced that MDS B-Band licences were only to be renewed until 25 July 2004. Consequently, on 14 January 2000 the B-Band spectrum was designated by the Minister for Communications, Information Technology and the Arts for allocation under spectrum licences. Existing MDS B-Band Apparatus licences were converted to spectrum licences.

Legislative references to the MDS Apparatus licence type could not be deleted at that time because the spectrum licences that replaced the MDS licences contained a reference to a ‘technical framework’ provision of some MDS instruments.

On 3 February 2009, the ACMA made the Radiocommunications Spectrum Marketing Plan (2.3 GHz Band) 2009. On 26 March 2010, the relevant spectrum licences were varied to include conditions that reflected a new ‘technical framework’ that did not include references to MDS instruments. This allowed for these MDS instruments to be repealed and for references to the MDS licence type to be removed.

Package of Legislative Instruments

The Amendment Determination form part of a package of instruments made simultaneously to remove all legislative references to the MDS licence type from subordinate legislation. Other instruments forming part of this package include the:

Radiocommunications Licence Conditions (MDS Licence) Repeal Determination 2010;
Radiocommunications (Allocation of Multipoint Distribution Station Licences) Repeal Determination 2010;
Radiocommunications (Spectrum Access Charge) Repeal Determination 2010;
Radiocommunications Spectrum Conversion Plan (2302 - 2400 MHz Band) Repeal Plan 2010;
Radiocommunications (Transmitter and Receiver Licences) Amendment Determination 2010 (No. 1); and
Radiocommunications Advisory Guidelines (Protection of Apparatus-licensed and Class-licensed Receivers – 2 GHz Band) Amendment Guidelines 2010 (No. 1).

References to MDS Apparatus licences also appear in three other pieces of legislation not made by the ACMA. These instruments are the Radiocommunications (Coordination) Regulations, the Broadcasting Services Act 1992 and the Telecommunications (Consumer Protection and Services Standards)(Special Digital Data Services) Regulations 1999. It is anticipated that these instruments will be amended to remove references to the MDS licence type in due course.

Consultation

In accordance with subsection 17(3) of the LIA, the ACMA invited submissions to be made on the proposed Amendment Determination. Notification seeking public comment about the proposed Amendment Determination was published on the ACMA website. No submissions were received.

Regulatory Impact

The ACMA has undertaken a preliminary assessment of the regulatory impact in accordance with the requirements of the Office of Best Practice Regulation. It has been determined that amending the Radiocommunications (Interpretation) Determination 2000 would have no direct or significant indirect impact on business or the economy. For those reasons, an exemption from the need to provide a Regulatory Impact Statement (RIS) and Business Cost Calculator Report has been obtained. The ACMA RIS exemption reference number is ACMA 128.

Determination Details

Details of the Amendment Determination are provided in Attachment A.

Attachment A

Notes on Determination

Section 1 Name of Determination

Section 1 provides the name of the Determination.

Section 2 Commencement

Section 2 provides that the Determination commences on the day after it is registered.

Section 3 Amendment of Radiocommunications (Interpretation) Determination 2000

Section 3 provides that Schedule 1 amends the Radiocommunications (Interpretation) Determination 2000.

Schedule 1 Amendments (section 3)

[1] Subsection 3(2), note

Item 1 replaces a reference to the ACA, in the note for subsection 3(2), with a reference to the ACMA.

[2] Schedule 1, definition of fixed receive licence, paragraph (c)

Item 2 replaces a reference to the ACA in the definition of fixed receive licence, with a reference to the ACMA.

[3] Schedule 1, definition of major coast receive licence, paragraph (d)

Item 3 replaces a reference to the ACA in the definition of major coast receive licence, with a reference to the ACMA.

[4] Schedule 1, definition of major coast receive station, paragraph (d)

Item 4 replaces a reference to the ACA in the definition of major coast receive station, with a reference to the ACMA.

[5] Schedule 1, definition of MDS licence

Item 5 omits the definition of MDS licence.

[6] Schedule 1, definitions of multipoint distribution repeater station, multipoint distribution station, and MDS, and multipoint distribution station receiver

Item 6 omits the definitions of multipoint distribution repeater station, multipoint distribution station, and MDS, and multipoint distribution station receiver.

[7] Schedule 1, definition of non assigned basis

Item 7 replaces a reference to the ACA, in the definition of non assigned basis, with a reference to the ACMA.

[8] Schedule 1, definition of PMTS Class A, subparagraph (b) (ii)

Item 8 replaces a reference to the ACA, in the definition of PMTS Class A, with a reference to the ACMA.

[9] Schedule 1, definition of temporary fixed link station, paragraph (b)

Item 9 replaces a reference to the ACA, in the definition of temporary fixed link station, with a reference to the ACMA.

[1] The 2.1 GHz Band Frequency Band Plan 2002 made on 23 April 2002.

Overview

The Radiocommunications (Interpretation) Amendment Determination 2010 (No. 3) was enacted to address the redundancy of the Multipoint Distribution Station (MDS) Apparatus licence type within the Radiocommunications Act 1992. This amendment was introduced by the Australian Communications and Media Authority (ACMA) under the authority conferred by subsection 64(1) of the Australian Communications and Media Authority Act 2005. The key objective of this determination is to streamline the legislative framework by removing outdated references to the MDS licence type, which had not been issued since March 2004. This amendment also includes updates to reflect the merger of the Australian Communications Authority and the Australian Broadcasting Authority into the ACMA, ensuring consistency and clarity in the regulatory language. The legislative changes are designed to simplify the regulatory environment without imposing any significant economic or business impacts, as confirmed by a preliminary regulatory impact assessment.

Scope and Application

The Radiocommunications (Interpretation) Amendment Determination 2010 (No. 3) serves to remove outdated legislative references to the Multipoint Distribution Station (MDS) Apparatus licence type under the Radiocommunications Act 1992, which have become redundant as no such licences have been issued since March 2004. This amendment applies to entities and persons involved in radiocommunications activities within Australia, ensuring that the legislative framework is current and reflective of the current spectrum management practices. The Amendment Determination also incorporates mechanical changes to reflect the 2005 merger of the Australian Communications Authority and the Australian Broadcasting Authority to form the Australian Communications and Media Authority (ACMA). The scope of the Amendment Determination includes various sections of the Radiocommunications Act, such as section 5 and subsections 30 (1), 32 (1), and 34 (1), among others. This instrument is part of a broader package designed to eliminate all references to MDS licences across multiple subordinate instruments, facilitating a streamlined and updated legislative environment. The ACMA has the authority to make such determinations under section 64 (1) of the Australian Communications and Media Authority Act 2005.

Key Provisions

The Radiocommunications (Interpretation) Amendment Determination 2010 (No. 3) (the Amendment Determination) serves to update and refine the legislative framework under the Radiocommunications Act 1992 (the Radiocommunications Act). This amendment specifically addresses the elimination of references to the MDS (Multipoint Distribution Station) Apparatus licence type. As outlined in section 3 of the Amendment Determination, Schedule 1 makes several critical changes to the Radiocommunications (Interpretation) Determination 2000. Notably, it omits the definition of an MDS licence (Item 5) and removes definitions related to multipoint distribution repeater station, multipoint distribution station, and MDS, and multipoint distribution station receiver (Item 6). Additionally, it updates various references from the Australian Communications Authority (ACA) to the Australian Communications and Media Authority (ACMA) (Items 1, 2, 3, 4, 7, 8, and 9). The Amendment Determination imposes certain obligations on the ACMA, primarily ensuring that the Radiocommunications Act remains current and free from redundant or outdated references. By repealing the definitions and references related to the MDS licence type, the ACMA aims to streamline the legislative framework, making it easier to administer and understand. The ACMA is also responsible for ensuring that all other related instruments, such as the Radiocommunications Licence Conditions (MDS Licence) Repeal Determination 2010 and the Radiocommunications (Allocation of Multipoint Distribution Station Licences) Repeal Determination 2010, are aligned with these changes. Failure to comply with the requirements of the Amendment Determination could result in legal consequences. Although the Amendment Determination itself does not specify particular offences or penalties, the overarching Radiocommunications Act contains provisions for non-compliance. Under section 311 of the Radiocommunications Act, any person who contravenes a provision of the Act, or an instrument made under the Act, may be subject to civil or criminal penalties. For civil penalties, the Act provides for fines up to $11,100 for individuals and $55,500 for bodies corporate, as per the current penalty units. Criminal penalties may also apply, depending on the severity of the breach, with potential imprisonment terms specified in the Radiocommunications Act.

Area of Law: Administrative Law
Instrument: Regulation
Concepts: Definitions & Interpretation; Commencement Provisions; Repeal & Amendment

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