EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Radiocommunications Act 1992
Radiocommunications (Spectrum Access Charges – 3.4 GHz Band) Determination 2021
Authority
The Australian Communications and Media Authority (the ACMA) has made the Radiocommunications (Spectrum Access Charges – 3.4 GHz Band) Determination 2021 (the Determination) under subsection 294(1) of the Radiocommunications Act 1992 (the Act).
Subsection 294(1) of the Act empowers the ACMA to make determinations to fix spectrum access charges payable by licensees for issuing spectrum licences and to specify the times when spectrum access charges are payable.
Purpose and operation of the instrument
The Determination fixes spectrum access charges payable by NBN Co Limited (NBN Co) for issuing spectrum licences in accordance with the Radiocommunications (3.4 GHz Band) Spectrum Conversion Plan 2021 (the Conversion Plan) and the Radiocommunications (Spectrum Access Charges—3.4 GHz Band) Direction 2020 (the Direction), and specifies the times when spectrum access charges are payable.
Background
On 10 December 2020, the Minister for Communications, Cyber Safety and the Arts (the Minister) made the Radiocommunications (Spectrum Designation—3.4 GHz Band) Notice 2020 (the Designation Notice) and the Direction.
The Designation Notice provides that parts of the frequency range 3400-3575 MHz within specific geographic areas should be allocated by issuing spectrum licences. The circumstances and reasons for designating this spectrum for spectrum licensing are explained in the explanatory statement to the Designation Notice.
In accordance with section 38, and Subdivision A of Division 1 of Part 3.2, of the Act, the effect of the Designation Notice is that the ACMA must prepare a conversion plan and undertake a process to offer to convert the apparatus licences that authorise the operation of radiocommunications devices in the designated spectrum to spectrum licences. In accordance with section 38, the ACMA has made the Conversion Plan. There is one apparatus licensee operating in the designated part of the 3.4 GHz band, being NBN Co.
Subsection 294(2) of the Act provides that the Minister may give written directions to the ACMA about the matters dealt with in determinations made under subsection 294(1). Subsection 294(4) requires the ACMA to ensure that determinations made under subsection 294(1) comply with any directions in force under section 294. The Determination is consistent with the Direction, which was made under subsection 294(2).
The Direction requires the ACMA to fix spectrum access charges and specify when the spectrum access charges are payable for spectrum licences relating to the inner-metropolitan areas and the outer-metropolitan and regional areas in the parts of the 3.4 GHz band in the Designation Notice. These areas are defined in the Direction.
Regarding the outer-metropolitan and regional areas, the Minister directed the ACMA to set a spectrum access charge of $57,146,840 and to provide for the election for the spectrum access charges to be paid upfront or by ten equal instalments. Should NBN Co elect to pay by instalments, the first instalment will be payable prior to the relevant spectrum licence (the outer-metropolitan and regional spectrum licence) coming into force. All subsequent payments will be payable on each anniversary of the relevant spectrum licence coming into force.
Regarding the inner-metropolitan areas, the Minister directed the ACMA to set a spectrum access charge of $226,441,720 if the relevant spectrum licence (the inner-metropolitan spectrum licence) is in still force on the first anniversary of it coming into force. However, should the inner-metropolitan spectrum licence not be in force on the first anniversary of it coming into force then the spectrum access charge is nil.
The explanatory statement to the Direction sets out the Minister’s considerations in setting the spectrum access charges and the timing of payments.
A provision-by-provision description of the Determination is set out in the notes at Attachment A.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003 (the LA).
Documents incorporated by reference
The Determination incorporates the following Act and legislative instrument by reference (including by the adoption of definitions):
˃ the Act;
> the Conversion Plan.
The Act and Conversion Plan can be obtained from the Federal Register of Legislation (www.legislation.gov.au). The Act is incorporated as in force, from time to time, in accordance with section 10 with the Acts Interpretation Act 1901 and subsection 13(1) of the LA. The Conversion Plan is incorporated as in force from time to time, in accordance with section 6 of the Determination, subsection 14(1) of the LA and 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.
As noted in the explanatory statement for the Direction, the Department of Infrastructure, Transport, Regional Development and Communications consulted the ACMA and NBN Co on the matters contained in the Direction in October and November 2020, before the Minister made the Direction.
The ACMA released a draft version of the Conversion Plan along with a draft version of the Determination to NBN Co for consultation in February 2021. NBN Co did not raise any concerns about the amounts of the charge or the timing of the payments. The ACMA had regard to NBN Co’s views in preparing the Determination.
Regulatory impact assessment
The ACMA has consulted with the Office of Best Practice Regulation (the OBPR) on the requirement for a Regulation Impact Statement (RIS). The changes arising from the licence conversion process were considered in a certified independent review conducted by the ACMA regarding the optimising of arrangements in the frequency range 3400‑3575 MHz. OBPR therefore considers that no further regulatory impact statement is required from the ACMA. The OBPR reference number is 25773.
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 Determination sets the amount of spectrum access charges payable by NBN Co for the ACMA issuing the inner-metropolitan spectrum licence and the outer-metropolitan and regional spectrum licence, and specifies the times when these spectrum access charges are payable. These amounts and times are consistent with the Direction.
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 (Spectrum Access Charges – 3.4 GHz Band) Determination 2021
Section 1 Name
This section provides for the Determination to be cited as the Radiocommunications (Spectrum Access Charges – 3.4 GHz Band) Determination 2021.
Section 2 Commencement
This section provides for the instrument to commence at the start of the day after it is registered on the Federal Register of Legislation.
The Federal Register of Legislation may be accessed free of charge at www.legislation.gov.au.
Section 3 Authority
This section provides that the Determination is made under subsection 294(1) of the Act.
Section 4 Repeal of this instrument
This section provides that the Determination is repealed at the end of 31 December 2030.
Section 5 Definitions
This section defines a number of key terms used throughout the instrument.
Section 6 References to other instruments
This section provides that in the Determination, unless the contrary intention appears, a reference to another legislative instrument is a reference to that other legislative instrument as in force from time to time, and a reference to an instrument or other writing (other than a legislative instrument) is a reference to that instrument or writing as in force or existing from time to time.
Section 7 Spectrum access charge – inner-metropolitan spectrum licence
Section 7 provides the amount of spectrum access charge payable by NBN Co for the issue of the inner-metropolitan spectrum licence. The amount payable is $226,441,720, if the licence remains in force on the first anniversary of the date it comes into force, or nil otherwise. This is consistent with the Direction.
Section 8 Spectrum access charge – outer-metropolitan and regional spectrum licence
Section 8 provides the amount of spectrum access charge payable by NBN Co for the issue of the outer-metropolitan and regional spectrum licence and the relevant spectrum licence details. NBN Co may elect to pay a single upfront payment of $57,146,840, or 10 instalment payments of $5,714,684. These amounts are consistent with the Direction.
If NBN Co elects to pay the single upfront amount, it must be paid within one week after the ACMA’s offer to issue the spectrum licence closes (see section 56 of the Act). If NBN Co elects to pay in instalments, the first instalment must be paid within one week after the ACMA’s offer to issue the spectrum licence closes (see section 56 of the Act). Each subsequent instalment must be paid on an anniversary of the day the licence came into force.
Section 9 Election – outer-metropolitan and regional spectrum licence
Section 9 provides that NBN Co may elect to pay for the outer-metropolitan and regional spectrum licence by instalments by providing written notice to the ACMA before the specified date. NBN Co may use the acceptance form, specified in the Conversion Plan, to give that notice to the ACMA.