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22 Dec 2010

Spectrum licence reissue reforms to the Radiocommunications Act 1992 passed

by Toby Ryston-Pratt, Bruce Lloyd, Sarah Godden

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 criterion;
  • 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 instruments.

These reforms follow extensive industry submissions to the ACMA and the Government in relation to 15 year spectrum licences which expire between 2013-2017.

Public interest

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
  • section 3(f): supporting communications policy objectives.

The priority given to these objectives is not specified in the Radcomms Act.  This is consistent with earlier consideration by the Productivity Commission.

Alternative option

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).

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.