Radiocommunications Licence Conditions (Fixed Licence) Determination Variation 2018 (No.1)

Administered by Department of Communications and the Arts

Legislation au F2018L01564 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

 

Approved by the Australian Communications and Media Authority

 

Radiocommunications Licence Conditions (Fixed Licence) Determination Variation 2018 (No.1)

 

Radiocommunications Act 1992

 

Authority

 

The Australian Communications and Media Authority (ACMA) has made the Radiocommunications Licence Conditions (Fixed Licence) Determination Variation 2018 (No.1) (the Variation Instrument) under paragraph 107(1)(f) of the Radiocommunications Act 1992 (the Act) and in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

 

Paragraph 107(1)(f) of the Act provides that the ACMA may determine, by written instrument, conditions that apply in relation to a particular type of apparatus licence.

 

Subsection 33(3) of the AIA provides that where an Act confers a power to make a legislative instrument, the power shall be construed to include a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.

 

The Variation Instrument is a legislative instrument for the purposes of the Legislation Act 2003 (the LA).

 

A provision-by-provision description of the instrument is set out in the notes at Attachment A.

 

Purpose and operation of the instrument

 

The purpose of the Variation Instrument is to amend the Radiocommunications Licence Conditions (Fixed Licence) Determination 2015 (the LCD).  

 

The 5600 MHz - 5650 MHz band (the 5.6 GHz band) was identified, by the ACMA, as part of its public consultation on the future use of the 3.6 GHz band (further information concerning that consultation process is available here: https://www.acma.gov.au/theACMA/future-approach-to-the-3_6-ghz-band) for use by fixed wireless broadband services under point-to-multipoint apparatus licences. The Variation Instrument has been made to extend the operation of section 11T of Part 3E of the LCD to include the 5.6 GHz band. 

 

Background

 

Paragraph 107(1)(f) of the Act empowers the ACMA to determine, by written instrument, conditions that will apply to particular types of apparatus licences. Section 11T of Part 3E of the LCD sets out how adjacent channel interference must be managed between point-to-multipoint apparatus licensees using time division duplex (TDD) in the 1900 MHz - 1920 MHz and 3400 MHz - 3700 MHz bands.

 

With the identification of the 5.6 GHz band for use by point-to-multipoint apparatus licences using TDD, a means to manage adjacent channel interference was considered by the ACMA to be necessary. As part of the ACMA’s public consultation on point-to-multipoint apparatus licensing in the 5.6 GHz band (further information concerning that consultation process is available here: https://www.acma.gov.au/theACMA/point-to-multipoint-apparatus-licensing-in-the-5_6-ghz-band) the ACMA proposed to address adjacent channel interference by applying the requirements of section 11T of Part 3E of the LCD to the 5.6 GHz band. This is because the band is expected to be used in a similar manner to that in which the 1900 MHz - 1920 MHz and 3400 MHz - 3700 MHz bands are used. This approach also provides flexibility to licensees on how best to manage interference on a case-by-case basis.

 

Consultation

 

Before the Variation Instrument was made, the ACMA was satisfied that consultation was undertaken to the extent appropriate and reasonably practicable, in accordance with section 17 of the LA.

 

From 18 May to 29 June 2018, the ACMA publicly consulted on arrangements to introduce point-to-multipoint apparatus licensing in the 5.6 GHz band (further information concerning that consultation process is available here: https://www.acma.gov.au/theACMA/point-to-multipoint-apparatus-licensing-in-the-5_6-ghz-band). This included proposed changes to the LCD as effected by the Variation Instrument.

 

Five submissions were received during the public consultation period. No submissions opposed the proposed changes to the LCD.

 

 

Regulatory impact

 

The ACMA consulted with the Office of Best Practice Regulation (the OBPR) on the requirement for a Regulation Impact Statement (RIS). The OBPR advised that the Variation Instrument does not warrant the preparation of a RIS because the instrument is likely to have only minor and machinery impacts. The reference number for the OBPR’s assessment is OBPR ID 23618.

 

 

Documents incorporated by reference

 

There are no documents incorporated by reference to the LCD as a result of the Variation Instrument.

Statement of compatibility with human rights

Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule-maker in relation to a legislative instrument to which section 42 (disallowance) of the LA applies to cause a statement of compatibility with human rights to be prepared in respect of that legislative instrument.

 

The statement of compatibility set out below has been prepared to meet that requirement.

 

Overview of the Variation Instrument

 

Paragraph 107(1)(f) of the Act provides that the ACMA may determine, by written instrument, conditions that apply in relation to a particular type of apparatus licence.

 

The purpose of the Variation Instrument is to amend the Radiocommunications Licence Conditions (Fixed Licence) Determination 2015 (the LCD).  

 

The 5.6 GHz band has recently been identified for use by fixed wireless broadband services under point-to-multipoint apparatus licences. The variation to the LCD is made to extend the operation of subsection 11T(1) to include the 5.6 GHz band. 

 

 

Human Rights Implications

 

The ACMA has assessed whether the variation instrument is compatible with human rights, being the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.

Having considered the likely impact of the instrument and the nature of the applicable rights and freedoms, the ACMA has formed the view that the Variation Instrument does not engage any of those rights or freedoms.

 

Conclusion

 

The Variation Instrument is compatible with human rights as it does not raise any human rights issues.

 

 


ATTACHMENT A

 

 

Detailed description of the instrument

 

 

Section 1  Name

 

This section provides for the instrument to be cited as the Radiocommunications Licence Conditions (Fixed Licence) Determination Variation 2018 (No.1).

 

Section 2  Commencement

 

This section provides that the instrument commences on the day after it is registered on the Federal Register of Legislation.

 

The Federal Register of Legislation may be accessed at www.legislation.gov.au.

 

Section 3  Authority

 

This section identifies the statutory provision that authorises the making of the instrument, namely paragraph 107(1)(f) of the Radiocommunications Act 1992.  

 

Section 4  Variation – Radiocommunications Licence Conditions (Fixed Licence) Determination 2015

 

This section provides that Schedule 1 varies the Radiocommunications Licence Conditions (Fixed Licence) Determination 2015.

 

Schedule 1 – Amendment

 

Item 1 –Subsection 11T(1)

 

This subsection is varied to include the 5600 MHz - 5650 MHz band.

 

 

Overview

The Radiocommunications Licence Conditions (Fixed Licence) Determination Variation 2018 (No.1) was enacted to address the need for managing adjacent channel interference in the newly identified 5.6 GHz band for fixed wireless broadband services under point-to-multipoint apparatus licences. This instrument was made by the Australian Communications and Media Authority (ACMA) under the authority granted by the Radiocommunications Act 1992 and in accordance with the Acts Interpretation Act 1901. The policy objective of this variation is to ensure that the conditions for managing interference in the 5.6 GHz band are consistent with those already established for the 1900 MHz - 1920 MHz and 3400 MHz - 3700 MHz bands, thereby providing a coherent regulatory framework for all similar licence types. The ACMA determined that this approach would facilitate effective interference management while allowing licensees flexibility in their operational strategies.

Scope and Application

The Radiocommunications Licence Conditions (Fixed Licence) Determination Variation 2018 (No. 1) pertains to conditions that apply to particular types of apparatus licences under the Radiocommunications Act 1992. This instrument was made by the Australian Communications and Media Authority (ACMA) to amend the Radiocommunications Licence Conditions (Fixed Licence) Determination 2015, specifically extending the operation of section 11T of Part 3E of the LCD to include the 5.6 GHz band for fixed wireless broadband services using point-to-multipoint apparatus licences. This variation was prompted by the ACMA’s identification of the 5.6 GHz band for use in this capacity, thereby necessitating measures to manage adjacent channel interference in a manner consistent with the use of other bands such as the 1900 MHz - 1920 MHz and 3400 MHz - 3700 MHz bands. The instrument applies to entities and individuals holding point-to-multipoint apparatus licences within the specified frequency bands, aiming to harmonise interference management practices across the identified spectrum. The ACMA has concluded that the instrument does not engage any human rights, as assessed under the Human Rights (Parliamentary Scrutiny) Act 2011, and is thus compatible with these rights.

Key Provisions

The main operative sections of the Radiocommunications Licence Conditions (Fixed Licence) Determination Variation 2018 (No.1) (the Variation Instrument) focus on extending the operation of subsection 11T(1) of the Radiocommunications Licence Conditions (Fixed Licence) Determination 2015 (the LCD) to include the 5.6 GHz band for fixed wireless broadband services under point-to-multipoint apparatus licences. This amendment is detailed in Section 4 and Schedule 1, Item 1 of the Variation Instrument. Specifically, subsection 11T(1) is modified to incorporate the 5600 MHz - 5650 MHz band, ensuring that the conditions governing adjacent channel interference management apply to this new frequency band. The Variation Instrument imposes specific obligations and requirements on the parties or entities it governs, primarily concerning the management of adjacent channel interference in the newly included 5.6 GHz band. Licence holders operating in this frequency band must adhere to the same interference management protocols as those in the 1900 MHz - 1920 MHz and 3400 MHz - 3700 MHz bands. This includes following the guidelines set out in subsection 11T of Part 3E of the LCD to ensure effective and efficient spectrum use while minimising potential interference with other services. In terms of offences, penalties, or civil/criminal consequences for breach, the Variation Instrument does not explicitly outline specific penalties. However, the Radiocommunications Act 1992 and the LCD provide a framework within which non-compliance with radiocommunications licence conditions can result in penalties. Such penalties may include fines and other enforcement actions, as prescribed by the Radiocommunications Regulations 1994. The exact penalties for non-compliance would be determined in accordance with the broader legislative context, including the Radiocommunications Regulations 1994 and any relevant guidelines or decisions issued by the Australian Communications and Media Authority (ACMA). The Variation Instrument is compatible with human rights as assessed by the ACMA, given that it does not engage any of the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011. The ACMA's assessment ensures that the legislative changes do not adversely affect any human rights considerations, thereby maintaining alignment with Australia's obligations under international human rights law.

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