Australia: Spectrum reform: Consultation progresses...

Last Updated: 22 May 2017
Article by Angela Flannery

Most Read Contributor in Australia, August 2018

Radiofrequency spectrum is essential infrastructure, necessary for the delivery of broadcasting, telecommunications and many other services. Use of spectrum in Australia is currently regulated by the Australian Communications and Media Authority (ACMA) under the Radiocommunications Act 1992 (Cth).

In May 2014 the then Minister for Communications, now Prime Minister, Malcolm Turnbull announced a review of Australia's spectrum policy and management framework. This framework is over 20 years old and is no longer fit for purpose, given the rapid changes in the communications sector. That review, undertaken by the Department of Communications and the Arts and ACMA, concluded that the current framework has substantial deficiencies. The review made 3 core recommendations, as set out in a May 2015 report, namely that:

  1. The current legislation should be replaced with outcomes focussed legislation, that facilitates timely allocations, greater flexibility in the use of spectrum (including by allowing sharing and facilitating transfers) and improved certainty.
  2. The management of broadcasting spectrum, currently largely dealt with in the Broadcasting Services Act 1992 (Cth) (BSA), should be incorporated in the framework. In addition, better integration of public sector agencies should be provided for, including by requiring reporting of their spectrum holdings and allowing those agencies to lease, sell or share that spectrum.
  3. Spectrum pricing arrangements should be reviewed to make these both consistent and transparent. This would support efficient use of spectrum and facilitate secondary markets.

The review supported a rewrite of the existing legislation to address these issues and also to simplify and streamline the regulation, including by the adoption of a single licensing system to replace the 3 categories of spectrum, apparatus and class licences.

The Government announced its agreement to implementation of the recommendations of the review in August 2015. As a next step, in early March 2016, the Government released a Legislative Proposals Consultation Paper on its proposed approach to the rewrite of the legislation. Consistent with the review recommendations, that consultation paper noted that the approach of the new draft legislation would be to:

  1. Simplify regulatory structures for planning, licensing and equipment regulation.
  2. Streamline regulatory processes.
  3. Clarify the roles of the Government and ACMA, and also spectrum users.
  4. Bring broadcasting spectrum into the general spectrum framework.
  5. Provide for graduated and proportionate enforcement and compliance tools.

A further year has passed since that consultation closed and the Government has now released a partial exposure draft of the Radiocommunications Bill, together with consultation papers on broadcasting spectrum, transitional arrangements, spectrum pricing and Commonwealth held spectrum. The theme of the draft Bill and consultation papers remains consistent with the recommendations of the review, with a focus on modernising and simplifying Australia's spectrum management framework. Key points include:

  1. As expected, the draft Bill provides for a move to a single licensing system. ACMA will design and implement this system. Licences will be able to be issued in response to written applications, where the Minister provides a direction to issue or in accordance with a licence issue scheme established by ACMA. Class licences will be replaced with a spectrum authorisation mechanism allowing particular transmitters to be used for particular purposes on specified terms.
  2. The maximum term of a licence will be extended to 20 years. Licensees will have more certainty in relation to renewal, with licences required to state whether there is a right to renewal (or no right of renewal) or whether renewal is within the discretion of ACMA.
  3. The Minister's role will be strategic, without involvement in operational decisions. The Minister will set strategic priorities to guide ACMA in its spectrum management regulatory functions, and will also have direct oversight of decisions with significant public policy implications.
  4. The regime for broadcasting spectrum is likely to remain fairly complex. Proposals that are being consulted on include abolishing the broadcasting services band (BSB) concept, with ACMA to have responsibility for spectrum designations and high-level planning decisions. In making decisions, ACMA will be required to take into account objects and criteria similar to those in section 23 of the BSA. The decision on the licence fees that will be paid by broadcasters has already been made by the Government, as announced as part of the proposed media reform package (see here).
  5. ACMA will be required to publish an annual 5 year spectrum management work program. It will need to undertake consultation with both the Minister and the public in respect of each plan. It is hoped this will improve transparency, as stakeholders will have visibility of ACMA's priorities and ACMA's proposed spectrum planning and other decisions processes.
  6. On pricing, the Government is currently proposing that ACMA should publish guidelines on its approach to pricing, the Government and ACMA should "endeavour" to charge users of similar spectrum the same rate and reasons should be published if fees are determined other than by auction or an administered pricing formula.
  7. It is currently proposed that a "hybrid" approach will be adopted to transition, allowing the elements of the new regime to be implemented over a 5 year period. Ultimately, ACMA will be responsible for implementing transition.

The Australian Competition and Consumer Commission is likely to be disappointed with the powers given to it under the Bill. The Bill provides for ACMA to consult with the ACCC on competition limits, but does not give the ACCC the more extensive rights it suggested might be appropriate in its recent draft decision on the declaration of mobile roaming services (see here).

Public submissions are due by 30 June 2017. The Government will also conduct sessions for interested stakeholders, explaining the draft Bill and the associated consultation papers before the completion of the consultation period.

ACMA has released additional material on these proposals. ACMA's material is intended to provide information on how ACMA believes the Bill would operate (if it is passed by the Parliament).

Finalisation of the reform – and the introduction of the new legislation into Parliament – will not occur for some time. The Government will issue another exposure draft for consultation before the legislation is introduced into Parliament. As noted above, transition to the new regime may take up to 5 years.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions