Radiocommunications (Spectrum Access Charge) Repeal Determination 2010

Administered by Department of Communications and the Arts

Legislation au F2010L02242 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by the Authority of the Australian Communications and Media Authority

Radiocommunications (Spectrum Access Charge) Repeal Determination 2010

Radiocommunications Act 1992

Purpose

The purpose of the Radiocommunications (Spectrum Access Charge) Repeal Determination 2010 (the Repeal 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 Repeal Determination repeals the Radiocommunications (Spectrum Access Charge) Determination 2000.

Legislative Provisions

Subsection 294(1) of the Radiocommunications Act 1992 (the Act) provides that the Australian Communications and Media Authority (the ACMA) may, by written instrument, make determinations fixing spectrum access charges payable by licensees for issuing spectrum licenses; and specifying the times when spectrum access charges are payable.

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

A Determination made under subsection 294(1) of the Act is a legislative instrument.

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 Repeal 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 Conversion Plan (2302-2400 MHz Band) Repeal Plan 2010;
Radiocommunications (Interpretation) Amendment Determination 2010 (No. 3);
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 in due course.

Consultation

In accordance with subsection 17(3) of the Legislative Instruments Act 2003, the ACMA invited submissions to be made on the proposed Repeal Determination. Notification seeking public comment about the proposed Repeal 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 repealing the Radiocommunications (Spectrum Access Charge) 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.

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

Overview

The Radiocommunications (Spectrum Access Charge) Repeal Determination 2010, enacted by the Australian Communications and Media Authority (ACMA) under the Radiocommunications Act 1992, aims to eliminate legislative references to the now-redundant MDS (Multipoint Distribution Station) Apparatus licence type. This repeal follows the cessation of MDS licences since March 2004 and the absence of any foreseeable need for such licences in the future. The Repeal Determination rescinds the Radiocommunications (Spectrum Access Charge) Determination 2000. The overarching policy objective is to streamline and modernise the legislative framework governing radiocommunications by removing outdated references, ensuring the Act remains current and efficient. The ACMA sought public consultation as per the Legislative Instruments Act 2003 but received no submissions, indicating minimal impact on stakeholders. The repeal is part of a broader package of instruments designed to comprehensively update the legislative references to the MDS licence type.

Scope and Application

The Radiocommunications (Spectrum Access Charge) Repeal Determination 2010 applies to the legislative framework surrounding the Radiocommunications Act 1992, specifically targeting the elimination of references to the Multipoint Distribution Station (MDS) Apparatus licence type. This repeal reflects the redundancy of MDS licences, which have not been issued since March 2004, and the absence of any future need for such licences. The repeal determination is part of a broader package of instruments aimed at removing all legislative references to the MDS licence type, including the Radiocommunications Licence Conditions (MDS Licence) Repeal Determination 2010 and several other related repeal and amendment determinations. These instruments are designed to streamline and modernise the legislative framework for spectrum access charges and licences. The repeal determination does not introduce any new exclusions or exemptions beyond what is already provided in the overarching Radiocommunications Act 1992 and related instruments, and it operates within the jurisdiction of the Australian Communications and Media Authority (ACMA). The repeal determination ensures that the legislative instruments are aligned with current practices and technological advancements, thereby maintaining the efficiency and relevance of the regulatory framework.

Key Provisions

The main operative sections of the Radiocommunications (Spectrum Access Charge) Repeal Determination 2010 (the Repeal Determination) concern the repeal of previous legislative references to the Multipoint Distribution Station (MDS) Apparatus licence type. Section 3(1) of the Repeal Determination states that the Radiocommunications (Spectrum Access Charge) Determination 2000 is repealed. This repeal is significant as it eliminates the need for the issuance of any future MDS licences, which have not been issued since March 2004. The repeal is also supported by other instruments that remove references to the MDS licence type across various pieces of subordinate legislation, ensuring a consistent approach to the regulation of radiocommunications in Australia. The Repeal Determination imposes obligations on the Australian Communications and Media Authority (ACMA) to ensure that all legislative references to the MDS Apparatus licence type are removed. This includes updating and revising existing instruments to eliminate any references to MDS licences. The ACMA must also ensure that the repeal does not adversely affect any existing spectrum licences or the operational framework within which they are issued. Additionally, the Repeal Determination requires the ACMA to coordinate with other regulatory bodies to ensure that references to MDS licences are removed from all relevant legislation, including those not under the purview of the ACMA. In terms of offences, penalties, or civil/criminal consequences for breach, the Repeal Determination itself does not impose any new penalties or offences. The repeal of the Radiocommunications (Spectrum Access Charge) Determination 2000 is a legislative action that removes outdated references rather than imposing new regulatory burdens. However, any non-compliance with the broader legislative framework governing radiocommunications in Australia could result in civil or criminal penalties. For example, breaches of the Radiocommunications Act 1992 can result in fines and, in severe cases, imprisonment. The specific penalties depend on the nature and severity of the breach, with maximum penalties outlined in relevant sections of the Radiocommunications Act and other related legislation.

Area of Law: Regulatory Standards; Spectrum Management
Instrument: Determination
Concepts: Definitions & Interpretation; Regulatory Impact; Consultation Requirements

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