Explanatory Statement
Radiocommunications Act 1992
Acts Interpretation Act 1901
Radiocommunications (Spectrum Designation—27 GHz Band) Repeal Notice 2015
Issued by the authority of the Minister for Communications
Legislative Authority
Subsection 36(1) of the Radiocommunications Act 1992 (Act) provides that the Minister for Communications (Minister) may, after consultation with the Australian Communications and Media Authority (ACMA), give to the ACMA a written notice designating a specified part of the spectrum to be allocated by issuing spectrum licences. Subsection 33(3) of the Acts Interpretation Act 1901 relevantly provides the Minister with the power to repeal any notice made under subsection 36(1) of the Act.
Purpose
The purpose of this Notice is to repeal the Radiocommunications (Spectrum Designation) Notice No. 1 of 2000 dated 31 May 2000 (Designation Notice). There is in force an unrelated instrument with the same name dated 14 January 2000 that is not repealed by this Notice.
The Designation Notice allows the ACMA to issue spectrum licences authorising the operation of radiocommunications devices using the parts of the spectrum between 26.5 GHz and 27.5 GHz (the 27 GHz band), including the higher but not the lower number. However, section 105 of the Act prohibits the ACMA from issuing apparatus licences for that band, except in certain circumstances.
The repeal of the Designation Notice will allow the ACMA to issue apparatus licences in the 27 GHz band. The Designation Notice will be repealed on 18 January 2016; being the day after all spectrum licences issued in the 27 GHz band expire.
Background
The Designation Notice, made on 31 May 2000 by the then Minister for Communications, Information Technology and the Arts under subsection 36(1) of the Act, designated the 27 GHz band throughout Australia as part of the spectrum to be allocated by issuing spectrum licences.
Spectrum licences in the 27 GHz band are currently held by XYZed LMDS Pty Ltd, IPSTAR Australia Pty Ltd and NBN Co Ltd and expire on 17 January 2016.
There is currently little demand for spectrum licences in the 27 GHz band. Reverting the 27 GHz band from wide area spectrum licencing to site‑specific apparatus licensing will allow current licensees to continue to deliver services while making it possible for new services to be provided using this spectrum. That is, the spectrum may be put to more productive use in the economy.
This Notice is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA). As it is a solely repealing instrument, it will be repealed by section 48A of the LIA on the day after it commences, i.e. on 19 January 2016.
The Minister is also making the Radiocommunications (Class of Services) Amendment (Removal of 27 GHz Band) Determination 2015 to amend the Radiocommunications (Class of Services) Determination 2012. This amendment will remove the reference to the 27 GHz band, to ensure that it is clear that the Minister is no longer satisfied that it is in the public interest for spectrum licences to be re-issued in the band.
Regulation Impact Statement
The Office of Best Practice Regulation (OBPR) advised that a Regulation Impact Statement is not required for the Notice (OBPR reference number 19151).
Statement of Compatibility with Human Rights
This statement of compatibility is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
This Notice is compatible with human rights as it does not raise any human rights issues.
Consultation
The ACMA has undertaken a review of the 27 GHz band.
In August 2014, the ACMA released the discussion paper, Review of Licensing Arrangements in the 27 GHz Band (the Consultation Paper). The Consultation Paper reviewed the spectrum management arrangements in the 27 GHz band and put forward a preliminary view that a reversion from spectrum to apparatus licensing would be the most high value use of the bands. The purpose of the Consultation Paper was to stimulate discussion and gather information from stakeholders to assist the ACMA in determining/identify the most appropriate licensing arrangements, which will maximise the overall public benefit and derive the highest value use from the spectrum in the future.
The Consultation Paper stated that the technical framework for spectrum licences in the 27 GHz band was optimised for Local Multipoint Distribution Services (LMDS). However, this technology has not been widely deployed either in Australia or internationally. In Australia, the 27 GHz band is currently used for satellite services. The ACMA’s analysis indicates that the 27 GHz band is currently under‑utilised, but demand for access to the band by a range of services, including space research, is increasing.
This Consultation Paper satisfied the requirements of subsection 36(4) of the Act; that is, before the ACMA may make recommendations to the Minister proposing such a revocation, the ACMA must give members of the public reasonable opportunity to make representations to the ACMA about such a recommendation.
After the release of the Consultation Paper, the ACMA received seven submissions. These have been published on the ACMA website at www.acma.gov.au. All submissions agreed with the ACMA’s view that licensing arrangements in the 27 GHz band should change from spectrum to apparatus licensing.
The ACMA separately consulted with the incumbent spectrum licence holders, seeking their views on the future of the spectrum licences. Incumbent spectrum licence holders did not oppose a reversion to apparatus licensing in the 27 GHz band provided continuity of service could be assured.
The ACMA considers the best utilisation of the 27 GHz band is to revert to apparatus licensing, following the expiry of the existing spectrum licences. International spectrum allocation suggests there is growing demand to use the 27 GHz band for fixed services and fixed satellite services. It is the ACMA’s view that site-specific apparatus licensing allows for a more varied and cost‑effective use of the 27 GHz band than area‑wide spectrum licensing.
In accordance with subsection 36(3) of the Act, on 7 July 2015, the ACMA recommended to the former Minister that the Designation Notice be repealed. The Minister has accepted the ACMA’s recommendation. In accordance with this recommendation, the Minister is making this Notice under subsection 36(1) of the Act.
The ACMA will work with incumbent spectrum licensees to enable the transition to apparatus licences in the 27 GHz band to ensure continuity of service where this is sought by current licensees.
Notes on Sections
Section 1 – Name
Section 1 provides that the name of the Notice is the Radiocommunications (Spectrum Designation—27 GHz Band) Repeal Notice 2015.
Section 2 - Commencement
Section 2 provides that the Notice will commence on 18 January 2016; being the day after all spectrum licences issued in the 27 GHz band expire.
Section 3 – Repeal of designation notice
Section 3 provides for the repeal of the Designation Notice, i.e. the Radiocommunications (Spectrum Designation) Notice No. 1 of 2000 dated 31 May 2000. When read with section 2, this means that the ACMA is able to issue apparatus licences that authorise the operation of radiocommunications devices in the 27 GHz band from 18 January 2016.
There is in force an unrelated instrument with the same name dated 14 January 2000 that is not repealed by this Notice.