EXPLANATORY STATEMENT
Issued by the Australian Communications and Media Authority
Radiocommunications (Third Party Use – Spectrum Licence) Rules Revocation 2011
Radiocommunications Act 1992
Purpose
The purpose of the Radiocommunications (Third Party Use – Spectrum Licence) Rules Revocation 2011 (the Revocation) is to revoke the Radiocommunications (Third Party Use - Spectrum Licence) Rules 2000 (No. 2) (the Rules).
Legislative Provisions
Subsection 68 (3) of the Radiocommunications Act 1992 (the Act) provides that the Australian Communications and Media Authority (the ACMA) may by written instrument, make rules about the operation of radiocommunications devices under spectrum licences by persons other than licensees, including rules about the way in which licensees may authorise those persons to operate radiocommunications devices under spectrum licences.
Rules made under subsection 68(3) of the Act are a legislative instrument for the purposes of the Legislative Instruments Act 2003 (the LIA).
Subsection 33(3) of the Acts Interpretation Act 1901 provides that when an Act confers a power to make an instrument, that power shall, unless the contrary intention appears, be construed as including a power exercisable in a like manner and subject to like conditions, to revoke that instrument.
Background
The original purpose of the Rules and the Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000 (the Detemination) requiring that third party authorisations be revocable at will was to clarify that third party authorisations did not become immutable parts of licence obligations, but rather remained commercial arrangements between the parties.
Submissions made in response to recent public consultation carried out by the ACMA about the revocable at will provisions have consistently stated that the revocable at will provisions are a barrier to trade. It has been argued that a potential acquirer of an authorisation does not have sufficient certainty in relation to the spectrum to make investment decisions, given that the authorisation may be cancelled at any time at the licensee’s discretion.
Removing a barrier to trade facilitates the ACMA’s second Principle for Spectrum Management, to enable and encourage spectrum to move to its highest value use or uses.
Operation
The revocation of the Rules together with amendment of the Determination will remove the requirement that third party authorisations are revocable at will for, respectively, spectrum and apparatus licences.
The removal of this requirement removes a barrier to trade and creates greater certainty for authorisations. Previously the authorisation could only be granted on the basis that it could be cancelled at any time at the licensee’s discretion.
Consultation
On 8 October 2010 the ACMA released a public consultation paper entitled Third Party Authorisations in Spectrum and Apparatus Licences: Revocable at Will Provisions. The consultation paper was made available on the ACMA’s website for public comment and submissions until 8 November 2010.
The consultation paper sought comment on options to amend the revocable at will requirements imposed on third party authorisations of apparatus and spectrum licences.
Five submissions were received in response to the invitation for public comment. These were considered by the ACMA when making the Revocation.
Four of the submissions supported removing the ‘revocable at will’ requirement. The revocable at will provisions were cited in the submissions as being a barrier to third party use of spectrum.
The fifth submission related to matters specific to apparatus licences and did not comment on the proposed revocation of the Rules.
The ACMA is satisfied that the consultation undertaken was appropriate for the purpose of section 17 of the LIA.
Regulatory Impact
The Office of Best Practice Regulation (the OBPR), was consulted about the making of the Revocation. The OBPR did not require a Regulation Impact Statement (RIS). The RIS exemption number for the Declaration is 12184.
Revocation Details
Further details of the Revocation are provided in the Attachment.
Attachment
Notes on Sections
Section 1 Name of Instrument
Section 1 provides the name of the instrument of revocation.
Section 2 Commencement
Section 2 provides that the instrument commences on the day after it is registered.
Section 3 Revocation
Section 3 revokes the Radiocommunications (Third Party Use - Spectrum Licence) Rules 2000 (No. 2).