By Toby Ryston-Pratt, Bruce Lloyd and Sarah
On 26 November reforms to the Radiocommunications Act 1992
(the Radcomms Act) were passed in relation to
spectrum licence renewals. This follows announcements by the
Minister for Broadband, Communications and the Digital Economy
earlier this year that spectrum licence reissue will be considered
for those existing 15 year spectrum licensees who are already using
their spectrum licences to provide services to significant numbers
of Australian consumers, or who have in place networks capable of
providing services to significant numbers of consumers.
The reforms amend the Radcomms Act to:
provide the ACMA with greater flexibility in the timeframe in
which it can commence spectrum licence reissue processes;
allow the ACMA to issue class licences in the same
radiofrequency spectrum as expired or reissued spectrum licence
allocations, as well as spectrum in which a spectrum licence is not
currently in force, conditional upon there being adequate
interference safeguards and satisfaction of the public interest
make class of service determinations made by the Minister under
subsection 82(3) of the Radcomms Act legislative instruments that
are not subject to disallowance; and
make spectrum access charge directions by the Minister to the
ACMA under subsection 294(2) of the Radcomms Act not legislative
These reforms follow extensive industry submissions to the ACMA
and the Government in relation to 15 year spectrum licences which
expire between 2013-2017.
While "public interest" is still not defined in the
Radcomms Act, the Explanatory Memorandum indicates that the five
criteria proposed in the April 2009 public discussion paper issued
by the Department of Broadband, Communications and the Digital
Economy, "Public Interest Criteria for Re-issue of Spectrum
Licences", and supported by industry during the 2009
consultation process will be the starting point. These criteria
are: promoting the highest value use for spectrum, investment and
innovation, competition, consumer convenience and determining an
appropriate rate of return to the community.
The absence of a definition will provide some scope for the
interpretation of public interest and for additional criteria to be
examined in specific cases.
DBCDE has noted that a public interest definition should also be
consistent with ACMA's spectrum management policy and the
following objects from the Radcomms Act:
section 3(a): maximising the overall public benefit derived
from using the radiofrequency spectrum by ensuring its efficient
allocation and use; and
The priority given to these objectives is not specified in the
Radcomms Act. This is consistent with earlier consideration by the
An alternative option is to approach the ACMA to exercise its
more limited power to renew licences if it is satisfied that
special circumstances exist in which it is in the public interest
for the existing licensee to continue to hold the licence (section
82(1)(b) Radcomms Act). However, the Explanatory Memorandum to the
Radiocommunications Amendment Act 2010 (Cth) suggests that the
intention is for such applications to be made to the Minister.
Under both options the ACMA retains the discretion whether or
not to renew the licences and is responsible for reissuing the
licences (section 82(1) Radcomms Act).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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