EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Radiocommunications Act 1992
Radiocommunications Spectrum Marketing Plan (1800 MHz unallocated lots band) 2017
Authority
The Australian Communications and Media Authority (the ACMA) has made the Radiocommunications Spectrum Marketing Plan (1800 MHz unallocated lots band) 2017 (Marketing Plan) under section 39A of the Radiocommunications Act 1992 (the Act).
Subsection 39A(2) of the Act provides that the ACMA must, by legislative instrument, prepare a marketing plan for issuing spectrum licences that authorise the operation of radiocommunications devices at frequencies within a part or parts of the spectrum included in a declaration made under section 153B of the Act, and within areas specified in that declaration. Subsection 39A(5) provides that a marketing plan may indicate:
(a) the procedures to be followed for issuing spectrum licences in accordance with the plan;
(b) the timetable for issuing spectrum licences in accordance with the plan;
(c) how the spectrum dealt with under the plan is to be apportioned among spectrum licences to be issued;
(d) how much of the spectrum dealt with under the plan is to be reserved for public or community services;
(e) the conditions, or types of conditions, that may be included in spectrum licences to be issued.
Purpose and operation of the Marketing Plan
The Marketing Plan specifies the spectrum lots available for allocation in five pairs of frequency ranges within five identified geographic areas of Australia, collectively referred to as the 1800 MHz (unallocated lots) band:
(a) 1775 MHz to 1780 MHz and 1870 MHz to 1875 MHz in Dubbo;
(b) 1775 MHz to 1785 MHz and 1870 MHz to 1880 MHz in Mackay;
(c) 1745 MHz to 1750 MHz and 1840 MHz to 1845 MHz in Maryborough;
(d) 1780 MHz to 1785 MHz and 1875 MHz to 1880 MHz in Regional Western Australia; and
(e) 1750 MHz to 1755 MHz and 1845 MHz to 1850 MHz in Tasmania.
These identified geographic areas are defined in Schedule 2 to the Marketing Plan.
The Marketing Plan also specifies the method by which the lots will be allocated, and the conditions that are likely to apply to spectrum licences issued after the conclusion of the allocation process.
Background
On 26 May 2015, following a recommendation from the ACMA, the Minister for Communications made a declaration that specific parts of the spectrum in the 1800 MHz band, within the identified geographic area of regional Australia, would be subject to re-allocation by spectrum licensing under section 153B of the Act. Two blocks of spectrum in the band were to be re-allocated, corresponding to the frequency ranges 1725 MHz to 1785 MHz and 1820 MHz to 1885 MHz (see the Radiocommunications (Spectrum Re-allocation—Regional 1800 MHz Band) Declaration 2015 (the Re-allocation Declaration)). The 1800 MHz (unallocated lots) band is a subset of the 1800 MHz band specified in the Re-allocation Declaration.
Allocation of 1800 MHz in regional Australia in 2015/16
The ACMA undertook an auction of the 1800 MHz band in regional Australia, commencing in 2015 and concluding in 2016 (the 2015/2016 auction process), in accordance with the Radiocommunications (Spectrum Licence Allocation—1800 MHz Band) Determination 2015. There were twelve 2 x 5 MHz lots on offer in each of the twelve specified regions, in addition to three residual lots covering the spectrum which remained unallocated from previous allocation processes. There were six 2 x 5 MHz lots which were left unsold after that auction.
The 1800 MHz (unallocated lots) band for allocation in 2017
The ACMA intends to allocate the 1800 MHz (unallocated lots) band, together with unallocated lots in the 2 GHz, 2.3 GHz and 3.4 GHz bands, in a single process in 2017, known as the multiband auction.
Under subsection 39A(2) of the Act, the ACMA must prepare a marketing plan for issuing spectrum licences that authorise the use of radiocommunications devices at frequencies within the parts of the spectrum, and within the areas, specified in the Re-allocation Declaration.
The Marketing Plan specifies that spectrum licences are to be allocated authorising the use of radiocommunications devices in particular parts of the 1800 MHz (unallocated lots) band in the five identified geographic areas of Australia, which are defined in Schedule 2 to the Marketing Plan. These areas are a subset of the areas specified in the Re-allocation Declaration.
Operation of the Marketing Plan
The Radiocommunications Spectrum Marketing Plan (1800 MHz Band) 2015 (the 2015 Marketing Plan) dealt with the allocation of spectrum licences for the 1800 MHz band, including the 1800 MHz (unallocated lots) band that was unallocated after the 2015/16 auction process concluded. The ACMA has made the Marketing Plan in relation to the upcoming allocation of spectrum licences in the 1800 MHz (unallocated lots) band under the Radiocommunications (Spectrum Licence Allocation – Multi-band Auction) Determination 2017 (Allocation Determination). The ACMA has made the Radiocommunications Spectrum Marketing Plan (1800 MHz Band) Variation 2017 (No. 1) (the Marketing Plan Variation), to remove the 1800 MHz (unallocated lots) band from the operation of the 2015 Marketing Plan. The Marketing Plan will apply to the 1800 MHz (unallocated lots) band from the date of commencement of the Marketing Plan Variation.
The Marketing Plan is one of a set of legislative instruments that enables the allocation of the 1800 MHz (unallocated lots) band, including:
> the Allocation Determination;
> the Marketing Plan Variation;
> the Radiocommunications Advisory Guidelines (Additional Device Boundary Criteria – 1800 MHz Lower Band) 2012;
> the Radiocommunications Advisory Guidelines (Managing Interference from Spectrum Licensed Transmitters – 1800 MHz Band) 2012;
> the Radiocommunications Advisory Guidelines (Managing Interference to Spectrum Licensed Receivers – 1800 MHz Band) 2012;
> the Radiocommunications (Spectrum Licence Limits—Regional 1800 MHz Band) Direction 2015;
> the Radiocommunications (Unacceptable Levels of Interference – 1800 MHz Band) Determination 2012; and
> the Re-allocation Declaration.
The purpose of the Marketing Plan is to describe the spectrum ‘products’ that will be offered at auction. In doing so, it identifies the spectrum that will be allocated and defines how this spectrum will be divided into lots for applicants to acquire in the auction process, or possibly for a pre-determined price, under the Allocation Determination. In addition, it sets out some of the technical and non-technical conditions that may apply to spectrum licences, and other matters that licensees should take into account when deciding whether to participate in the allocation process and when operating radiocommunications devices under a spectrum licence.
The Marketing Plan also briefly describes the procedures by which the ACMA will conduct the allocation. Full details of the allocation procedures are set out in the Allocation Determination. The ACMA will employ a price-based method of allocation, namely an auction, to allocate this spectrum. The ACMA has chosen the Simple Clock Auction (SCA) methodology, delivered through a secure online system, as the auction method to be used to conduct the auction. If, in particular circumstances, the ACMA considers there is no need for an auction, the Allocation Determination allows the ACMA to allocate a licence to an applicant without conducting an auction. The Allocation Determination also provides for a post-auction allocation process, should lots remain unsold after an auction process (post-auction allocation process).
The 1800 MHz (unallocated lots) band is divided into five lots that are defined by geographic area and frequency range. The lots will be available in a paired configuration. One lot, in Mackay, is a pair of 10 MHz frequency ranges. The other four lots are a pair of 5 MHz frequency ranges. The paired configuration enables the use of technologies such as 4G Long Term Evolution (LTE), used to deliver mobile broadband services.
The technical conditions to be included in spectrum licences allocated in accordance with the Marketing Plan and the Allocation Determination are drawn from the ACMA’s existing technical framework for the 1800 MHz band, developed in consultation with industry stakeholders. These technical conditions are set out in the Marketing Plan, in the parts that deal with licence conditions that will be included and the sample spectrum licence. The broader technical framework is set out in the following legislative instruments:
> the Radiocommunications Advisory Guidelines (Additional Device Boundary Criteria – 1800 MHz Lower Band) 2012;
> the Radiocommunications Advisory Guidelines (Managing Interference from Spectrum Licensed Transmitters – 1800 MHz Band) 2012;
> the Radiocommunications Advisory Guidelines (Managing Interference to Spectrum Licensed Receivers – 1800 MHz Band) 2012; and
> the Radiocommunications (Unacceptable Levels of Interference – 1800 MHz Band) Determination 2012.
The technical framework places constraints on, and regulates the use of, spectrum licences to allow licensees to operate services without causing undue interference to other services operating in other parts of the radiofrequency spectrum. Core conditions (in accordance with section 66 of the Act) will be included in spectrum licences to:
> define their geographic boundaries;
> define their range of frequencies;
> set out-of-area radio emission limits;
> set spurious and non-spurious radio emission limits.
In addition, the Marketing Plan discusses other relevant obligations, including spectrum trading rules, use by third parties and registration of transmitters with the ACMA, and payment obligations imposed by the Allocation Determination.
Licence commencement and licence duration are also described in the Marketing Plan. Spectrum licences issued as a result of the auction, or for a pre-determined price under Part 5 of the Allocation Determination, will commence on the date that the licence was issued. Spectrum licences allocated through the post-auction allocation process will commence on the later of:
(a) the date stated in the post-auction application;
(b) the date the licence is issued;
(c) 1 February 2018.
All spectrum licences will be for a fixed term with an expiry date of 17 June 2028, in line with the existing spectrum licences in the 1800 MHz band.
A sample spectrum licence set out in Schedule 6 to the Marketing Plan also contains information relating to core and other licence conditions that may apply to the operation of radiocommunications devices under the spectrum licence. However, the spectrum licences actually issued by the ACMA may contain additional or different conditions.
A provision-by-provision description of the Marketing Plan is set out in the notes at Attachment A.
The Marketing Plan is a legislative instrument for the purposes of the Legislation Act 2003 (the LA).
Documents incorporated by reference
The Marketing Plan incorporates the Australian Spectrum Map Grid 2012. The Australian Spectrum Map Grid (ASMG) is used to identify geographic areas of spectrum licences. The Australian Spectrum Map Grid 2012 describes the ASMG and the associated Hierarchical Cell Identifier Scheme (HCIS) that the Marketing Plan uses to define licences’ geographic areas. The Australian Spectrum Map Grid 2012 is available from the ACMA’s website: www.acma.gov.au. The Australian Spectrum Map Grid 2012 is incorporated as existing from time to time, as permitted by subsection 314A(2) of the Act.
The Marketing Plan also incorporates the International Telecommunication Union (ITU) Radio Regulations (the Radio Regulations). The ITU describes itself as the United Nations’ specialised agency for information and communication technologies, and the Radio Regulations are an instrument made by decisions at World Radiocommunications Conferences. The Radio Regulations are available to be downloaded for free from the ITU’s website: www.itu.int. The Radio Regulations are incorporated as existing from time to time, as permitted by subsection 314A(2) of the Act.
The Marketing Plan also incorporates the following Acts and legislative instruments (including by the adoption of definitions), or otherwise refers to them:
> the Act;
> the Acts Interpretation Act 1901;
> the Administrative Appeals Tribunal Act 1975;
> the Allocation Determination;
> the Australian Communications and Media Authority Act 2005;
> the Income Tax Assessment Act 1997;
> the International Tax Agreements Act 1953;
> the LA;
> the Marketing Plan Variation;
> the Radiocommunications Advisory Guidelines (Additional Device Boundary Criteria – 1800 MHz Lower Band) 2012;
> the Radiocommunications Advisory Guidelines (Managing Interference from Spectrum Licensed Transmitters – 1800 MHz Band) 2012;
> the Radiocommunications Advisory Guidelines (Managing Interference to Spectrum Licensed Receivers – 1800 MHz Band) 2012;
> the Radiocommunications (Interpretation) Determination 2015;
> the Radiocommunications Licence Conditions (Apparatus Licence) Determination 2015;
> the Radiocommunications (Register of Radiocommunications Licences) Determination 2017;
> the Radiocommunications (Trading Rules for Spectrum Licences) Determination 2012;
> the Radiocommunications (Unacceptable Levels of Interference – 1800 MHz Band) Determination 2012; and
> the Re-allocation Declaration.
The Acts and legislative instruments listed above may be obtained from the Federal Register of Legislation (http://www.legislation.gov.au). The Acts listed above are incorporated as in force from time to time, in accordance with section 10 of the Acts Interpretation Act 1901 and subsection 13(1) of the LA. The legislative instruments listed above are incorporated as in force from time to time, in accordance with section 6 of the Marketing Plan and subsection 14(1) of the LA.
Consultation
Before the Marketing Plan 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.
A draft version of the Marketing Plan was released for public consultation on 2 August 2017, together with the explanatory information paper Draft allocation instruments for multiband spectrum— residual lots auction. Consultation closed on 25 August 2017.
The ACMA received four written submissions to this information paper. The ACMA took the views of stakeholders into consideration during the revision of the Marketing Plan. Submissions were generally in relation to the multiband allocation process overall. The submissions made in relation to the multiband allocation process are discussed in more detail in the explanatory statement to the Allocation Determination. Two submissions raised specific comments about the Marketing Plan, in regards to a list of specified fixed links in Table 1 of Schedule 5 to the Marketing Plan, and a licence condition that prohibits a specified level of interference from radiocommunications transmitters authorised under an 1800 MHz spectrum licence to those specified fixed services. The ACMA revised the list in Table 1 of Schedule 5 to the Marketing Plan in response to those comments.
Regulation Impact Statement
Prior to making the Marketing Plan, the ACMA was informed that the Office of Best Practice Regulation (the OBPR) considered that the proposal to allocate licences via the multiband auction was sufficiently related to previous spectrum allocation processes considered by the OBPR, such that there was an exemption from the requirement for a Regulation Impact Statement for this legislative instrument.
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 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 Marketing Plan
On 26 May 2015, following a recommendation from the ACMA, the Minister for Communications made a declaration that specific parts of the spectrum in the 1800 MHz band in regional Australia would be subject to re-allocation by spectrum licensing under section 153B of the Act. The specific parts of the spectrum declared for re-allocation are set out in the Radiocommunications (Spectrum Re-allocation—Regional 1800 MHz Band) Declaration 2015 (the Re-allocation Declaration), and consist of the frequency ranges 1725 MHz to 1785 MHz and 1820 MHz to 1885 MHz (namely, the 1800 MHz band). This spectrum was offered as part of the auction of the 1800 MHz band in regional Australia that commenced in in 2015 and concluded in 2016. After that auction, six of the 2 x 5 MHz lots remained unallocated (that is, the 1800 MHz (unallocated lots) band).
The ACMA intends to allocate the 1800 MHz (unallocated lots) band, together with unallocated lots in the 2 GHz, 2.3 GHz and 3.4 GHz bands, in a single process in 2017, known as the multiband auction.
Subsection 39A(2) of the Act operates so that the ACMA must, by legislative instrument, prepare a marketing plan for issuing spectrum licences that authorise the operation of radiocommunications devices at frequencies with a part or parts of the spectrum included in the Re-allocation Declaration Subsection 39A(5) provides that the marketing plan may indicate:
(a) the procedures to be followed for issuing spectrum licences in accordance with the plan;
(b) the timetable for issuing spectrum licences in accordance with the plan;
(c) how the spectrum dealt with under the plan is to be apportioned among spectrum licences to be issued;
(d) how much of the spectrum dealt with under the plan is to be reserved for public or community services;
(e) the conditions, or types of conditions, that may be included in spectrum licences to be issued.
Subject to compliance with allocation limits set out in the Radiocommunications (Spectrum Licence Limits—Regional 1800 MHz Band) Direction 2015, any person may apply to be allocated a spectrum licence in accordance with the Marketing Plan.
Human rights implications
The ACMA has assessed whether the Marketing Plan 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 Marketing Plan does not engage any of those rights or freedoms.
Conclusion
The Marketing Plan is compatible with human rights as it does not raise any human rights issues.
ATTACHMENT A
Notes to the Radiocommunications Spectrum Marketing Plan (1800 MHz unallocated lots band) 2017
PART 1 PRELIMINARY
Section 1 Name
This section provides for the Marketing Plan to be cited as the Radiocommunications Spectrum Marketing Plan (1800 MHz unallocated lots band) 2017.
Section 2 Commencement
This section provides for the Marketing Plan to commence immediately after the commencement of the Marketing Plan Variation.
Section 3 Authority
This section identifies the provision that authorises the making of the Marketing Plan, namely section 39A of the Radiocommunications Act 1992.
Section 4 Purpose of the instrument
This section lists the main matters dealt with by the Marketing Plan. The Marketing Plan should be read in conjunction with the Allocation Determination for a more complete understanding of all allocation procedures.
Section 5 Definitions
This section defines a number of key terms used throughout the Marketing Plan, and indicates where other key terms are defined. A number of other expressions used in the Marketing Plan are defined in the Act.
Section 6 References to other legislative instruments and to other instruments or writing
This section provides that in the Marketing Plan, 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 another instrument or writing is a reference to that instrument or writing as existing from time to time.
Section 7 References to frequency ranges
This section provides that in the Marketing Plan the range of numbers that identifies a frequency range includes the higher, but not the lower, number.
PART 2 ALLOCATION OF SPECTRUM LICENCES
Section 8 Simplified outline of this Part
This section sets out a simplified outline of Part 2.
Section 9 Parts of the spectrum
This section provides that spectrum licences in the 1800 MHz (unallocated lots) band will be allocated and issued in the manner described in the Marketing Plan and the Allocation Determination.
Section 10 How licences will be allocated
This section provides that the primary means of allocating spectrum licences in the 1800 MHz (unallocated lots) band will be by auction using the SCA methodology. The rules and procedures that apply to the auction are set out in the Allocation Determination. However, the ACMA may offer to allocate a spectrum licence in relation to a lot for a pre-determined price if there is only one applicant that has nominated the lot as a preferred lot, in accordance with procedures set out in the Allocation Determination. This section also provides that parts of the 1800 MHz (unallocated lots) band that are offered at auction or for a pre-determined price but not allocated, may be later offered for allocation in accordance with Schedule 4 of the Allocation Determination.
Section 11 Lots for the auction
This section describes the lots for the auction. The 1800 MHz (unallocated lots) band has been divided by the ACMA into smaller blocks (referred to as lots) for auction. Each lot is defined by a frequency range (and resultant bandwidth), as set out in Schedule 1 to the Marketing Plan, and a specific geographic area (region), as set out in Schedule 2 to the Marketing Plan.
There are five lots in the auction. One lot, in Mackay, will consist of a block of 10 MHz in each of the lower and upper parts of the 1800 MHz band. The other four lots will each consist of a block of 5 MHz in each of the lower and upper parts of the 1800 MHz band.
There are five geographic areas (regions), with one separate region for each of the lots in the auction.
This section also provides that an auction will be held in accordance with the procedures set out in the Allocation Determination. In some circumstances, the Allocation Determination allows the ACMA to allocate a spectrum licence without conducting an auction (see Part 5 of and Schedule 4 to the Allocation Determination) or after conducting an auction (see Schedule 4 to the Allocation Determination).
Section 12 Advertising the auction
This section provides that the ACMA will advertise the details of the auction and invite persons to take part, in accordance with the Allocation Determination (which sets out requirements for this process in more detail). The ACMA will publish a notice to advertise the allocation process on its website.
Section 13 Taking part in the auction
This section provides that detailed information about the auction and the application process will be made available by the ACMA in an applicant information package (AIP), to be published in accordance with the Allocation Determination. The AIP will be made available at the beginning of the allocation process. The mandatory contents of the AIP are set out in section 28 of the Allocation Determination.
The AIP will contain important information about the allocation process for potential participants. It will describe how to apply to participate in the allocation process, and will include copies of all necessary forms and documents to commence participation in the process.
This section also states that information about how to apply to participate in the auction is included in Part 4 of the Allocation Determination.
PART 3 SPECTRUM LICENCES TO BE ISSUED
Section 14 Simplified outline of this Part
This section sets out a simplified outline of Part 3.
Section 15 Issue of licences
This section sets out when the ACMA will issue spectrum licences in the 1800 MHz (unallocated lots) band. A licence will be issued to a successful applicant or winning bidder as soon as practicable after that applicant or bidder has paid the full spectrum access charge that the Allocation Determination requires to be paid before a licence will be issued (the balance of the winning price, or the balance of any pre-determined price, or post-auction pre-determined price, as applicable).
The Allocation Determination sets out the relevant procedures for payment of spectrum access charges in more detail.
Section 16 Commencement and duration of licences
This section explains that licences issued as a result of the auction or for a pre-determined price under Part 5 of the Allocation Determination will commence on the date that the licence was issued. Spectrum licences allocated through the post-auction allocation process will commence on the later of:
(a) the date stated in the post-auction application;
(b) the date the licence is issued;
(c) 1 February 2018.
All spectrum licences will be for a fixed term with an expiry date of 17 June 2028, in line with the existing spectrum licences in the 1800 MHz band.
Section 17 Core licence conditions
Under section 66 of the Act, there are a number of core conditions which a spectrum licence must include. This section sets out the types of core conditions to be included in a spectrum licence allocated in accordance with the Marketing Plan, including the geographic area and frequency bands in which a radiocommunications device can be operated under a spectrum licence, and the out-of-area and out-of-band emission levels.
Section 18 Determining core licence conditions
This section explains how the core conditions for spectrum licences issued in the 1800 MHz (unallocated lots) band as a result of an auction, or for pre-determined price allocation, will be determined.
Each licence will specify a range of frequencies within which the licensee may operate radiocommunications devices. The range of frequencies will depend on the lots the licensee has been allocated in accordance with the Allocation Determination. If a licensee has been allocated multiple lots, the licence issued may specify the aggregate frequency range for the lots.
Each licence will also specify the geographic area within which the licensee may operate radiocommunications devices. The geographic area will be the region, or regions, described in Schedule 2 to the Marketing Plan for the lots allocated in accordance with the Allocation Determination.
The regions are defined by an identifier scheme adopted by the ACMA in 2012 (the HCIS). Under the HCIS, areas are defined by referring to a set of identifiers which collectively correspond to a single area on the ASMG. The ASMG is described in more detail, including with the use of geographic co-ordinates to define the ASMG outer boundary, in the Australian Spectrum Map Grid 2012, available from the ACMA’s website at www.acma.gov.au.
The ASMG divides the Australian land mass into a grid of squares (cells) of four sizes, with their side lengths of the largest to smallest cells being, respectively, 3 degrees, 1 degree, 15 minutes and 5 minutes of arc. The HCIS names the cells in this tiered structure, with cells of each size given a unique identifier name. Under this system, the region for a lot is comprised of a collection of unique identifiers that cover the required geographic area on the ASMG. Spatial data files (in Shapefile format), which are available from the ACMA’s website, may be used to generate a map of an area defined by a set of HCIS identifiers with geographic information software. A HCIS area description to Placemark conversion tool has also been developed and is available online at the ACMA website: www.acma.gov.au.
An indicative map that illustrates the areas of the regions is shown in Schedule 2.
Subsections 18(2) and 18(3) of the Marketing Plan provide that the emission limits, which will be licence conditions included in the spectrum licences issued in accordance with the Marketing Plan, will be calculated in accordance with Schedules 3 and 4 to the Marketing Plan. These Schedules are, respectively, used to calculate the maximum emission limits allowable outside the geographic area, and outside the frequency band, of a spectrum licence, and they form part of the core conditions of each licence.
Section 19 Other licence conditions
This section identifies other kinds of statutory licence conditions and other licence conditions that may be included in each spectrum licence issued under this allocation process, but which are not core conditions of the licence. These include the conditions in relation to payment to the ACMA of applicable charges, use by third parties, registration requirements for radiocommunications transmitters and residency requirements of the licensee. The ACMA may also include conditions about other matters, including conditions relating to interference management. Some of these conditions are included in the sample licence at Schedule 6.
This section also stipulates that spectrum licences issued as a result of the auction will be subject to a licence condition that prohibits a specified level of interference from radiocommunications transmitters authorised under an 1800 MHz spectrum licence to specified fixed services, if those fixed services are provided in accordance with an apparatus licence. The licence condition also specifies that the spectrum licensee cannot claim protection from interference caused by such specified fixed services. Specified fixed services are services that are provided using the same parameters as the fixed link services listed in Table 1 in Schedule 5 to the Marketing Plan.
A similar licence condition was included in the 2015 Marketing Plan, to accommodate the possibility that the ACMA may be asked to consider allowing continued operation of a number of fixed links, which had been operating in the 1800 MHz band in regional Australia under apparatus licences prior to the end of the re-allocation period specified in the Re-allocation Declaration.
The effect of section 153H of the Act is that those apparatus licences were automatically cancelled at the end of the re-allocation period. The ACMA has since issued a number of apparatus licences in respect of some of these fixed link services after the end of the re-allocation period, after being satisfied that ‘special circumstances’ of each particular case justified the issuing of the relevant apparatus licence(s) (see paragraph 153P(3)(d) of the Act).
The ACMA will include a licence condition in spectrum licences, as detailed in subsection 19(2) of the Marketing Plan, and in Licence Schedule 4 of the sample Licence in Schedule 6 to the Marketing Plan. The condition ensures that if the ACMA has authorised the continued operation of any fixed links service, which is provided using the same parameters as a specified fixed link service listed in Table 1 of Schedule 5 of the Marketing Plan, by issuing an apparatus licence in respect of that fixed link service in special circumstances in accordance with paragraph 153P(3)(d) of the Act, that fixed link service is protected from interference from radiocommunications transmitters operated under spectrum licences obtained under the Allocation Determination.
Pursuant to section 71 of the Act, the ACMA may include conditions about such other matters as it thinks fit. The ACMA may also include conditions in a spectrum licence that are not included in the Marketing Plan or the sample spectrum licence.
Section 20 Registration of transmitters
Under Part 3.5 of the Act, the ACMA is required to register all spectrum licences, and certain details of radiocommunications devices (except in particular cases) that are operated under each spectrum licence. This section of the Marketing Plan states that all spectrum licences issued pursuant to the Marketing Plan will include a condition that prevents the operation of a radiocommunications transmitter unless all requirements for registering the transmitter under Part 3.5 have been met. This is a mandatory licence condition for inclusion in all spectrum licences, under subsection 69(1) of the Act.
The ACMA has the discretion to refuse to register a transmitter under subsection 145(1) of the Act if it forms the view that operating the device in question will cause unacceptable levels of interference to the operation of other radiocommunications devices, either under the same licence or another licence. For the 1800 MHz band, including the 1800 MHz (unallocated lots) band, unacceptable levels of interference are defined in the Radiocommunications (Unacceptable Levels of Interference — 1800 MHz Band) Determination 2012 made under subsection 145(4) of the Act.
Under subsection 69(2) of the Act, the ACMA may include an exemption from the registration requirements in the mandatory spectrum licence condition required by subsection 69(1) of the Act.
Mobile transmitters operated in the 1800 MHz band with a radiated power of less than or equal to 39 dBm EIRP per occupied bandwidth and fixed transmitters operated in the 1800 MHz band with a radiated power always less than or equal to 33 dBm EIRP per occupied bandwidth will be exempt from the requirement to be registered. These devices are still required to meet all the core and other conditions of the licence including emission limit requirements. This exemption is included in Licence Schedule 3 of the sample spectrum licence at Schedule 6 to the Marketing Plan.
Section 21 Draft sample licence
This section provides that a sample spectrum licence is included at Schedule 6 to the Marketing Plan. The sample spectrum licence sets out the technical and other conditions that may apply to spectrum licences issued as a result of the allocation process. However, the conditions in the sample spectrum licence may not reflect the actual conditions included in a spectrum licence issued to a successful applicant or winning bidder.
Section 22 Compatibility requirements
This section provides that the purpose of the Radiocommunications Advisory Guidelines (Additional Device Boundary Criteria – 1800 MHz Lower Band) 2012, the Radiocommunications Advisory Guidelines (Managing Interference to Spectrum Licensed Receivers – 1800 MHz Band) 2012 and the Radiocommunications Advisory Guidelines (Managing Interference from Spectrum Licensed Transmitters – 1800 MHz Band) 2012 is to provide a means of coordinating services operating under spectrum licences in the 1800 MHz band.
PART 4 AFTER ALLOCATION
Section 23 Simplified outline of this Part
This section sets out a simplified outline of Part 4.
Section 24 Registration of licences
This section provides that, in accordance with Part 3.5 of the Act and the Radiocommunications (Register of Radiocommunications Licences) Determination 2017 (the Register Determination), the ACMA must register the details of spectrum licences in the Register of Radiocommunications Licences (Register). The Register is a publicly available database that is available on the ACMA’s website.
Part 3.5 of the Act and the Register Determination set out the information that the Register is required to contain, including the name and postal address of the licensee, the licence date of issue and expiry date. The Register may also include details of radiocommunications devices operated under a spectrum licence.
Section 25 Third party use
This section provides that a licensee may permit third parties to operate radiocommunications devices under any spectrum licences it holds. Any such arrangement must comply with Division 1 of Part 3.2 of the Act, which includes provisions governing third party use.
Section 26 Trading in spectrum licences
This section provides that a licensee may assign, or otherwise deal with, the whole or any part of a spectrum licence in accordance with Division 5 of Part 3.2 of the Act. The Radiocommunications (Trading Rules for Spectrum Licences) Determination 2012 made under section 88 of the Act provides further details about rules for trading in spectrum licences. In part, these rules define the minimum block of spectrum and geographic area that may be traded to a third party, and must be retained by the licensee.
Section 27 Agreements about emission limits
This section provides that a licensee in the 1800 MHz (unallocated lots) band may enter into an agreement about emission limits. Licensees of licences that are adjacent to one another may wish to enter agreements that allow a licensee to exceed their emission limits specified in the core licence conditions. The word ‘adjacent’ can refer to spectrum licences that share a geographic boundary, a frequency boundary, or both. This section notes the provisions of Schedules 3 and 4 to the Marketing Plan which underpin such agreements.
When such an agreement is in place, that agreement effectively sets the emission limits that apply to that licence under section 18 of the Marketing Plan and in accordance with Schedules 3 and 4 to the Marketing Plan. Schedules 3 and 4 require that such an agreement must be in writing.
Section 28 Spectrum licences that are about to expire
This section sets out the actions that the ACMA takes under the Act to determine market interest in spectrum licences which are about to expire. In accordance with section 78 of the Act, the ACMA will publish a notice about spectrum licences that are due to expire within the period specified in the notice. The notice will invite expressions of interest from persons wishing to obtain spectrum licences relating to the relevant parts of the spectrum. This information will be published on the ACMA’s website.
Section 29 Re-issue of licence
This section sets out what the ACMA does under the Act when spectrum licences expire. Under Division 4 of Part 3.2 of the Act, the ACMA may decide to re-issue a spectrum licence to the existing licence holder when it expires, if the licence is used to provide a service included in a class of services determined by the Minister for which re-issuing licences to the same licensee would be in the public interest, or if special circumstances exist as a result of which the ACMA is satisfied it is in the public interest for that person to be re-issued the licence. Alternatively, the ACMA may offer the spectrum licence for re-allocation by auction, tender, or pre-determined or negotiated price. A re-issued licence may be different to the original licence, including by having different conditions placed on the licence.
SCHEDULE 1 LOTS
This Schedule defines each lot that will be auctioned. There are five lots.
For each lot, Schedule 1 lists the lot number, lot name, region, lower and upper paired frequency ranges and bandwidth.
SCHEDULE 2 REGIONS
This Schedule defines the geographic areas (regions) for spectrum licences to be allocated in accordance with the Marketing Plan. It provides the names for the regions and precise geographic definitions.
To define a region, this Schedule lists a set of HCIS identifiers that correspond to the region on the ASMG.
A map of the regions is also provided (for illustrative purposes only).
SCHEDULE 3 EMISSION LIMITS OUTSIDE THE AREA
This Schedule sets the method for calculating the limits that will be placed on radiofrequency emissions that are produced by radiocommunications devices operating under a spectrum licence outside a spectrum licence’s geographic area (the out-of-area core licence condition). The limit is expressed as a radiated power limit that applies to all radiocommunications devices operated within the licence’s geographic area.
Schedule 3 provides for base emission limits that apply to parts of the spectrum that are not covered by an agreement made between adjacent licensees to exceed the out-of-area core licence condition. A written agreement between a licensee and all affected licensees of frequency-adjacent and area-adjacent spectrum licences can allow the first licensee to exceed the limits in the out-of-area core licence condition up to the maximum level of radio emissions specified in the agreement.
SCHEDULE 4 EMISSION LIMITS OUTSIDE THE BAND
This Schedule sets the method for calculating the limits that will be placed on radiofrequency emissions that are produced by radiocommunications devices operated under a spectrum licence outside the licence’s authorised frequency band (the out-of-band core licence condition).
Schedule 4 provides for base emission limits for spurious and non-spurious emissions by radiocommunications devices operating in relevant parts of the 1800 MHz band under a spectrum licence, which are not covered by an agreement made between adjacent licensees to exceed the out-of-band core licence condition. A written agreement between a licensee and all affected licensees of frequency-adjacent and area-adjacent spectrum licences can allow the first licensee to exceed the limits in the out-of-band core licence condition up to the maximum level of radio emissions specified in the agreement.
Spurious emissions are emissions that are outside the licence’s frequency band that are not deliberately generated or transmitted. These emissions include parasitic emissions, intermodulation products, harmonic emissions and frequency conversion products not associated with the transmission of information by the transmitter.
Non-spurious emissions are emissions that are outside the licence’s frequency band that are generated in the process of generating the emission within the licence’s frequency band. They include modulation products, wideband noise and switching transients produced as the transmitter is turned on and off.
SCHEDULE 5 SPECIFED FIXED LICENCES
This Schedule lists specified fixed licences for the purpose of paragraph 19(2)(a) of the Marketing Plan. Specified fixed licences are point-to-point fixed link services that are operated between two fixed points, where the points are defined as the A-end and B-end.
For each specified fixed licence, Schedule 5 lists the licence number, A-end site ID, A-end location, B-end site ID, B-end location and State/Territory.
As noted in the description of section 19, the ACMA has listed these specified fixed licences as it has issued a number of apparatus licences in respect of these fixed link services after the end of the re-allocation period, after being satisfied in each case that ‘special circumstances’ of the particular case justified the issuing of the relevant apparatus licence (see paragraph 153P(3)(d) of the Act). The ACMA has done this to allow continued operation of these fixed links for a short period of time—generally expected to be less than 12 months—after the end of the re-allocation period, as some of the links could not have been practicably relocated during the re-allocation period. Any spectrum licences issued as a result of the allocation procedures set out in the Allocation Determination will be subject to the condition at section 19 of the Marketing Plan.
SCHEDULE 6 SAMPLE SPECTRUM LICENCE
This Schedule sets out a sample spectrum licence for the 1800 MHz (unallocated lots) band that will be allocated under the Allocation Determination. It is an example, constructed for the purposes of illustration only, and is not an actual licence. It includes five licence schedules, which are explained below.
Licence Schedule 1 Licence details, bands and areas
This licence schedule to the licence sets out the fields for the licensee, the licence issue and expiry dates, and other details of the licence, including the frequency bands of the licence and the geographic area over which they apply.
Licence Schedule 2 Core conditions
This licence schedule includes the core conditions of the licence. Licence schedule 2 also authorises the operation of radiocommunications devices in accordance with these core conditions.
The core conditions are the conditions in relation to the geographic area and frequency ranges within which devices may be used, the out-of-area core licence condition and the out-of-band core licence condition.
This licence schedule also makes provision for the licensee to exceed the out-of-area and the out-of-band core licence conditions in circumstances where there is a written agreement between the licensee and all affected licensees of frequency-adjacent and area-adjacent spectrum licences. Where such a written agreement exists, the licensee must comply with the maximum permitted level of radio emission specified in the agreement.
Licence Schedule 3 Statutory conditions
This licence schedule contains other statutory conditions that apply to the licence relating to liability for charges, third party operation of radiocommunications transmitters and transmitter registration requirements. It also includes conditions regarding when a radiocommunications transmitter will be exempt from the requirement to be registered, and residency requirements for licensees.
Licence Schedule 4 Other conditions
This licence schedule contains other licence conditions that may be included by the ACMA in accordance with section 71 of the Act. One such condition imposes on the licensee the responsibility to manage interference between radiocommunications devices operated under the licence, and between radiocommunications devices operated under the licence and under any other spectrum licence held by the licensee (sample conditions 2(a) and (b) in licence schedule 4). Managing interference is defined as including the investigation of the possible causes of interference and the taking of steps reasonably likely to reduce the interference to acceptable levels.
Other conditions included in the sample licence under this licence schedule are:
> a condition in relation to interference management for radiocommunications devices that are co-sited (located within 200 metres of each other) (sample condition 3);
> a requirement to provide the ACMA with information to be included in the Register (sample condition 4);
> a requirement to prevent harmful interference to a receiver operating in another country and in accordance with the ITU Radio Regulations (sample condition 5);
> a requirement to comply with specified electromagnetic energy regulation (sample condition 6);
> a requirement to comply with record-keeping requirements for radiocommunications transmitters located at communal sites (sample condition 7); and
> a requirement that prohibits interference by radiocommunications transmitters authorised under the spectrum licence to specified fixed services operated under an apparatus licence after the end of the re-allocation period; this sample licence condition also specifies that a spectrum licensee cannot claim protection from interference caused by such specified fixed services, being services that are provided using the same parameters as fixed link services listed in Table 1 in Schedule 5 to the Marketing Plan (sample condition 8).
Licence Schedule 5 Licence notes
Example licence notes are included in the sample licence for the purposes of clarification and guidance on the use of the spectrum licence.