EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Radiocommunications Licence Conditions (PTS Licence) Amendment Determination 2018 (No.1)
Radiocommunications Act 1992
Authority
The Australian Communications and Media Authority (ACMA) has made the Radiocommunications Licence Conditions (PTS Licence) Amendment Determination 2018 (No. 1) (instrument) under paragraph 107(1)(f) of the Radiocommunications Act 1992 (Act) and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (AIA).
Paragraph 107(1)(f) of the Act provides that an apparatus licence is subject to such conditions as the ACMA may, by legislative instrument, determine in relation to that 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.
Purpose and operation of the instrument
The purpose of the instrument is to amend the Radiocommunications Licence Conditions (PTS Licence) Determination 2013 (LCD), to give effect to the requirements of section 6 of the Australian Communications and Media Authority (Radiocommunications Licence Conditions—3.4 and 3.6 GHz Bands Interference Management) Direction 2018 (Ministerial Direction).
On 17 July 2018, the Minister for Communications and the Arts made the Ministerial Direction. Section 6 of the Ministerial Direction directs the ACMA to determine, under paragraph 107(1)(f) of the Act, a licence condition in relation to PTS transmitter licences that authorise the operation of a radiocommunications device in defined areas and in the 3400–3575 MHz band. The licence condition must require licensees to manage interference in certain circumstances by way of the synchronisation of their transmissions with other transmissions, and the adoption of a common frame structure with those other transmissions. The Ministerial Direction directs the ACMA to take all reasonable steps to ensure that such a condition is in force at all times, on and after 30 March 2020.
A provision-by-provision description of the instrument is set out in the notes at Attachment A.
The instrument is a legislative instrument that is disallowable for the purposes of the Legislation Act 2003 (the LA).
Documents incorporated by reference
The instrument amends the LCD to incorporate by reference the following legislative instruments:
- Radiocommunications Advisory Guidelines (Managing Interference to Spectrum Licensed Receivers – 3.4 GHz Band) 2015;
- the Ministerial Direction.
These legislative instruments may be obtained from the Federal Register of Legislation (www.legislation.gov.au). The legislative instruments are incorporated as in force from time to time, in accordance with subsection 14(1) of the LA.
The instrument amends the LCD to incorporate by reference the following document:
- LTE; Evolved Universal Terrestrial Radio Access (E-UTRA); Physical channels and modulation (3GPP TS 36.211 version 14.6.0 Release 14).
This document is published by the European Telecommunications Standards Institute (ETSI). At the time the instrument was made, the document could be freely obtained from ETSI’s website (https://portal.etsi.org/webapp/workprogram/Report_WorkItem.asp?WKI_ID=54618). The document is incorporated as in force at the time the Ministerial Direction was made (17 July 2018), in accordance with section 314A of the Act.
Consultation
Before the 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.
Public consultation on the instrument occurred from 2 October 2018 to 1 November 2018. Further information concerning that consultation process is available on the ACMA website: https://www.acma.gov.au/theACMA/pts-lcd-variation-3400-3575-mhz-band).
3 submissions were received during the public consultation period. No submissions opposed the proposed changes to the LCD.
Regulatory impact assessment
We have considered whether a regulatory impact analysis process is required by undertaking a preliminary assessment, and based on this preliminary assessment the Office of Best Practice Regulation (OBPR) has determined that the proposed regulatory change in this submission is minor or machinery in nature and has therefore verified that no further regulatory impact analysis is required – OBPR reference number 24508.
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 instrument
The ACMA has made the instrument to give effect to the requirements of section 6 of the Ministerial Direction. Section 6 of the Ministerial Direction directs the ACMA to determine, under paragraph 107(1)(f) of the Act, a licence condition in relation to PTS transmitter licensees that authorise the operation of a radiocommunications device in defined areas and in the 3400–3575 MHz band. The licence condition must require licensees to manage interference in certain circumstances by way of the synchronisation of their transmissions with other transmissions, and the adoption of a common frame structure with those other transmissions. The Ministerial Direction directs the ACMA to take all reasonable steps to ensure that such a condition is in force at all times, on and after 30 March 2020. The instrument imposes such a condition on PTS transmitter licences.
Human rights implications
The ACMA has assessed whether the 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 instrument does not engage any of those rights or freedoms.
Conclusion
The instrument is compatible with human rights as it does not raise any human rights issues.
ATTACHMENT A
Notes to the Radiocommunications Licence Conditions (PTS Licence) Amendment Determination 2018 (No. 1)
Section 1 Name
This section provides for the instrument to be cited as the Radiocommunications Licence Conditions (PTS Licence) Amendment Determination 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.
Section 3 Authority
This section identifies the provision of the Act that authorises the making of the instrument, namely paragraph 107(1)(f).
Section 4 Amendment
This section provides that Schedule 1 varies the LCD.
Schedule 1 – Amendment
Schedule 1 inserts a new section 5B into the LCD. Subsection 5B(1) imposes a condition on every PTS licence. However, the condition only affects the operation of a radiocommunications device (the device) under a PTS transmitter licence in the 3400-3575 MHz band in the ‘relevant area’ on or after 30 March 2020, where the following circumstances apply:
- that operation causes interference to a radiocommunications device (the other device) operated under a spectrum licence or another PTS licence in the 3400-3700 MHz band in the relevant area; and
- the level of interference exceeds the compatibility requirement set out in the Radiocommunications Advisory Guidelines (Managing Interference to Spectrum Licensed Receivers – 3.4 GHz Band) 2015; and
- the person operating the device and the person operating the other device have not agreed how to manage the interference.
In those circumstances, interference is to be managed by either operating the device with a frame structure that uses both uplink-downlink configuration 2 and special subframe configuration 6, as those concepts are referred to in LTE; Evolved Universal Terrestrial Radio Access (E-UTRA); Physical channels and modulation (3GPP TS 36.211 version 14.6.0 Release 14) published by ETSI, or by operating the device using a sequence and duration of radio emissions that is consistent with those configurations. This frame structure or other sequence of radio emissions of the relevant device must then be synchronised with the timing of the frame structure or other sequence of radio emissions with the other device. Each PTS licence that authorises operation of a radiocommunications device in the 3400-3575 MHz band in the relevant area is subject to the same condition, so interference will need to be managed by each such licensee if it occurs. Further, the Ministerial Direction requires the ACMA to take steps to include an equivalent condition on spectrum licences that authorise the operation of a radiocommunication device in the 3400-3575 MHz band in the relevant area; spectrum licensees subject to that condition will also need to manage interference in the same way.
New subsection 5B(2) defines expressions used in the condition set out at subsection 5B(1). In particular, ‘relevant area’ is defined by reference to the Ministerial Direction.