Radiocommunications (Third Party Use – Spectrum Licence) Rules Revocation 2011

Overview

The Radiocommunications (Third Party Use – Spectrum Licence) Rules Revocation 2011, enacted under the authority of the Radiocommunications Act 1992, was introduced to address the issue of barriers to trade caused by the "revocable at will" provisions in the Radiocommunications (Third Party Use - Spectrum Licence) Rules 2000. The revocation of these rules was undertaken by the Australian Communications and Media Authority (ACMA) with the policy objective of removing a barrier to trade and creating greater certainty for authorisations, thus facilitating the ACMA’s Principle for Spectrum Management that aims to enable and encourage spectrum to move to its highest value use or uses. The revocation followed public consultation where the submissions consistently argued that the revocable at will provisions were a barrier to trade, inhibiting potential acquirers of authorisations from making investment decisions due to the lack of certainty regarding the spectrum. The revocation of the rules, together with the amendment of the Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000, was intended to remove the requirement that third party authorisations be revocable at will, thereby enhancing investment certainty and promoting more efficient use of spectrum.

Scope and Application

The Radiocommunications (Third Party Use – Spectrum Licence) Rules Revocation 2011 applies to the entities and individuals operating under the Radiocommunications Act 1992. Specifically, it concerns those involved in third-party use of spectrum licences, where the original Radiocommunications (Third Party Use – Spectrum Licence) Rules 2000 were applicable. These rules were established to clarify that third-party authorisations did not become permanent obligations of the licence but were commercial arrangements. The revocation of these rules aims to remove a perceived barrier to trade, which was the revocable-at-will nature of third-party authorisations. By revoking these rules, the Act aims to provide greater certainty and encourage more efficient use of spectrum resources. The revocation has a national reach, consistent with the jurisdiction of the Radiocommunications Act 1992, which operates across the Commonwealth of Australia. The revocation removes the requirement for third-party authorisations to be revocable at will, thus addressing concerns that such provisions hindered investment decisions due to the uncertainty they created. The revocation is effective immediately upon registration and does not include specific exclusions or thresholds beyond the scope of the Radiocommunications Act 1992 itself.

Key Provisions

The Radiocommunications (Third Party Use – Spectrum Licence) Rules Revocation 2011 (the Revocation) serves to revoke the Radiocommunications (Third Party Use - Spectrum Licence) Rules 2000 (No. 2) (the Rules) as outlined in section 3 (1). The Rules, which were made under subsection 68(3) of the Radiocommunications Act 1992 (the Act), pertain to the operation of radiocommunications devices under spectrum licences by persons other than the licensees, including the manner in which licensees may authorise third parties to operate such devices (section 3 (1)). This revocation aligns with the provisions of the Acts Interpretation Act 1901, which permits the revocation of instruments unless otherwise specified (subsection 33(3)). The Revocation, as well as the amendment to the Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000, removes the requirement that third party authorisations under spectrum and apparatus licences be revocable at will. This change aims to eliminate barriers to trade and increase certainty for authorisations, thereby facilitating the movement of spectrum to its highest value use as per the Australian Communications and Media Authority’s (ACMA) second Principle for Spectrum Management. The consultation process involved the release of a public consultation paper on 8 October 2010, with submissions considered by the ACMA by 8 November 2010. Four out of five submissions supported the removal of the 'revocable at will' requirement, citing it as a hindrance to the third-party use of spectrum. The Revocation imposes several obligations on the parties and entities governed by it. Primarily, it removes the ability for licensees to revoke third party authorisations at their discretion. This change is intended to foster a more stable and predictable environment for third-party users of spectrum, encouraging investment and the efficient use of spectrum resources. The revocation and amendment are expected to streamline commercial arrangements and facilitate more robust trading practices in the spectrum market. The Act does not explicitly detail specific offences or penalties for breaches within the Revocation itself. However, breaches of the Radiocommunications Act 1992 or related regulations can lead to significant civil and criminal consequences. For instance, unauthorised use of radiocommunications devices can result in fines, with the maximum penalty varying based on the nature and severity of the offence. Additionally, the revocation of authorisations under misleading or fraudulent circumstances could attract further penalties under other relevant legislation, such as the Crimes Act 1914. The Office of Best Practice Regulation did not require a Regulation Impact Statement for this Revocation, indicating the minimal regulatory burden intended by the changes.