Radiocommunications (Spectrum Designation) Notice No. 1 of 1998 Instrument of Revocation No. 1 of 2013

Administered by Department of Communications and the Arts

Legislation au F2013L01283 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Radiocommunications Act 1992

Acts Interpretation Act 1901

 

 

Radiocommunications (Spectrum Designation) Notice No. 1 of 1998

Instrument of Revocation No. 1 of 2013

 

 

Issued by the authority of the Minister for Broadband, Communications

and the Digital Economy

 

 

Authority

 

Subsection 36(1) of the Radiocommunications Act 1992 (the Act) provides that the Minister for Broadband, Communications and the Digital Economy (the Minister) may, after consultation with the 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 provides the Minister with the power to repeal, rescind, revoke, amend, or vary any instrument made under the powers delegated by the Act.

 

Purpose

 

The purpose of this Notice is to revoke the Radiocommunications (Spectrum Designation) Notice No. 1 of 1998 (the Designation Notice).

 

Background

 

The Designation Notice, made on 14 January 1998 by the then Minister for the Communications, the Information Economy and the Arts under subsection 36(1) of the Act, designated the frequency band between 27.5 GHz and 28.35 GHz (the 28 GHz band) throughout Australia as part of the spectrum to be allocated by issuing spectrum licences. The notice provided that the frequency band includes the higher but not the lower number.

 

Spectrum licences in the 28 GHz band are currently issued to AAPT Ltd (AAPT) and NBN Co Ltd (NBN Co) and expire on 31 January 2014.

 

Review of the 28 GHz band

 

The Australian Communications and Media Authority (the ACMA) has undertaken a review of the 28 GHz band.

 

In January 2013, the ACMA released the discussion paper, Review of Licensing Arrangements in the 28/31 GHz Bands (The Consultation Paper). The Consultation Paper reviewed the spectrum management arrangements in the 28 and 31 GHz bands 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 the most appropriate licensing arrangements in the bands in the future.

 

The Consultation Paper stated that the technical framework for spectrum licences in the 28 GHz band was optimised for Local Multipoint Distribution Services (LMDS). However, this technology has not been widely deployed either in Australia or internationally, which the ACMA believes has contributed to underutilisation of the band.

 

This Consultation Paper satisfied the requirements of subsection 36(4) of the Act; that is, before the ACMA may make recommendations to the Minister for Broadband, Communications and the Digital Economy (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 ten submissions from interested stakeholders. The majority agreed with the ACMA’s view that licensing arrangements in the 28 GHz band should change from spectrum to apparatus licensing. The ACMA also consulted with the incumbent spectrum licence holders, seeking their views on the future of the spectrum licences. NBN Co did not oppose a reversion to apparatus licensing provided continuity of service could be assured. AAPT sought partial retention of spectrum licensing arrangements in metropolitan areas in the 28 GHz band.

 

The ACMA considers the best utilisation of the 28 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 28 GHz band for fixed services and fixed satellite services (FSS). It is the ACMA’s view that site-specific apparatus licensing allows for a more varied and cost-effective use of the 28 GHz band than area-wide spectrum licensing.

 

The ACMA acknowledged the arrangements sought by AAPT but believed the benefits expected from a nationwide reversion to apparatus licencing in the 28 GHz band outweigh AAPT’s preference for partial retention of spectrum licensing. Further, the ACMA believes it will be able to provide continuity of service to incumbent licensees and that apparatus licences can be issued which authorise the kind of area-wide services that AAPT intends to deploy.

 

In accordance with section 36(3) of the Act, on 3 May 2013, the ACMA recommended to the Minister that the Designation Notice be revoked. The Minister has accepted the ACMA’s recommendation and issues the accompanying Notice under subsection 36(1) of the Act.

 

It is anticipated the ACMA will work with incumbent spectrum licensees to develop appropriate arrangements for continuity of service and develop arrangements to enable other apparatus licences to be issued in the 28 GHz band.

 

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.

 

The Notice revokes the designation of the frequency band between 27.5 GHz and 28.35 GHz (including the higher but not the lower number) as part of the spectrum to be allocated by issuing spectrum licences. The Notice has been issued after consultation with the ACMA, determining that the most appropriate and high value use of the band is through apparatus licensing rather than the current spectrum licences, which expire 31 January 2014.

 

The Notice is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. It does not engage any of the applicable rights or freedoms and does not raise any human rights issues.


NOTES ON SECTIONS

 

 

Section 1 – Name of instrument

 

Section 1 provides that the name of the Instrument is the Radiocommunications (Spectrum Designation) Notice No. 1 of 1998 Instrument of Revocation No. 1 of 2013.

 

Section 2 - Commencement

 

Section 2 provides that the revocation instrument commences on 1 February 2014, being the day after all spectrum licences issued in the 28 GHz band expire.

 

Section 3 – Revocation

 

Section 3 provides for the revocation of the Radiocommunications (Spectrum Designation) Notice No. 1 of 1998.

 

Section 4 – Cessation

 

Section 4 provides that the revocation instrument ceases to have effect to have effect as if repealed by another instrument on the day after it commences.

Overview

The Radiocommunications Act 1992 was enacted to provide a framework for the regulation of radiocommunications in Australia, ensuring efficient use of the radio spectrum and facilitating the growth of communications services. This Act addresses the need for a structured approach to the allocation and licensing of radio spectrum to avoid interference and ensure effective use of this limited resource. The Act was enacted by the Parliament of Australia and its primary policy objective is to promote the efficient use of the radio spectrum while facilitating the development of communications services. The Radiocommunications (Spectrum Designation) Notice No. 1 of 1998 Instrument of Revocation No. 1 of 2013, issued under the authority of the Minister for Broadband, Communications and the Digital Economy, revokes the previous designation of the 28 GHz band for spectrum licensing. This revocation follows a review by the Australian Communications and Media Authority, which found that apparatus licensing would be a more efficient use of the spectrum. The revocation aims to better align the use of the 28 GHz band with current and future technological demands and to ensure that the spectrum is utilised in a manner that supports the broader communications industry.

Scope and Application

The Radiocommunications (Spectrum Designation) Notice No. 1 of 1998 Instrument of Revocation No. 1 of 2013 is a legislative instrument issued by the Minister for Broadband, Communications and the Digital Economy, providing for the revocation of the Radiocommunications (Spectrum Designation) Notice No. 1 of 1998, which designated the frequency band between 27.5 GHz and 28.35 GHz as part of the spectrum to be allocated by issuing spectrum licences. This revocation applies across Australia and follows a review conducted by the Australian Communications and Media Authority (ACMA), which found that the current spectrum licensing arrangements for the 28 GHz band are not optimised for efficient use. The revocation takes effect on 1 February 2014, following the expiry of existing spectrum licences on 31 January 2014. The instrument is compatible with human rights, as it does not engage any of the applicable rights or freedoms and does not raise any human rights issues. The revocation of the Designation Notice reflects a shift towards apparatus licensing, which is deemed more suitable for the growing demand for fixed services and fixed satellite services in the 28 GHz band.

Key Provisions

The Radiocommunications (Spectrum Designation) Notice No. 1 of 1998 Instrument of Revocation No. 1 of 2013 (Notice) is a legislative instrument issued by the Minister for Broadband, Communications and the Digital Economy, pursuant to the Radiocommunications Act 1992 (the Act) and the Acts Interpretation Act 1901. The primary purpose of the Notice is to revoke the Radiocommunications (Spectrum Designation) Notice No. 1 of 1998 (the Designation Notice), which previously designated the frequency band between 27.5 GHz and 28.35 GHz (the 28 GHz band) as part of the spectrum to be allocated by issuing spectrum licences. This revocation is effective from 1 February 2014, the day after the existing spectrum licences in the 28 GHz band expire. Under the Act, the Minister has the authority to designate parts of the radio spectrum for allocation through spectrum licences, and the Australian Communications and Media Authority (ACMA) plays a crucial role in advising the Minister on these matters. The ACMA's review of the 28 GHz band, documented in the discussion paper, Review of Licensing Arrangements in the 28/31 GHz Bands (the Consultation Paper), concluded that apparatus licensing would be a more effective use of the spectrum. This conclusion was based on the underutilisation of the band due to the limited deployment of Local Multipoint Distribution Services (LMDS) technology. The Consultation Paper sought public and stakeholder input, leading to a consensus that apparatus licensing would better serve the needs of the spectrum. The Notice imposes several obligations on the relevant parties. The ACMA is required to consult with stakeholders and the public, ensuring that their views are considered in the decision-making process. The Minister, after receiving the ACMA's recommendation, must issue the revocation instrument. Additionally, the ACMA must work with incumbent spectrum licensees to ensure continuity of service during the transition from spectrum to apparatus licensing. Failure to comply with the provisions of the Notice may result in various legal consequences. While the Notice itself does not explicitly state penalties for non-compliance, breaches of the Radiocommunications Act 1992 or any related regulations could lead to enforcement actions by the ACMA. These actions might include fines, compliance orders, or other administrative measures. Furthermore, any unauthorised use of the radio spectrum post-revocation could be considered illegal and subject to the penalties outlined in the Radiocommunications Act 1992, which can include significant fines and other civil or criminal penalties as prescribed by the law.

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