Preferential Rights and Compulsory Acquisition
The sections of the Communications and Multimedia Act (CMA) regulating the use of the spectrum and the Communications and Multimedia (Spectrum) Regulations 2000 (the Spectrum Regulations) came into force on April 1 2000.
The spectrum is to be managed according to the Communications Commission's spectrum plan. In developing the plan, the commission is required to take into account (i) the impact the plan will have on existing users and (ii) any applicable international standards, conventions and agreements such as the International Telecommunication Union and its radio regulations as adopted by Malaysia.
Upon taking into account a recommendation by the commission, the communications minister may decide that a part of the spectrum should be reallocated.
Section 157 of the CMA prohibits the intentional use of any part of the spectrum for the provision of network services unless:
- the person holds a spectrum assignment;
- the person holds an apparatus assignment;
- the use of the spectrum is subject to a class assignment issued by the communications commissioner; or
- the minister exempts the spectrum by order published in the Official Gazette.
Contravention of Section 157 is an offence, punishable by a fine not exceeding M$500,000 or up to five years' imprisonment.
A spectrum assignment issued by the commission confers rights on a person to use one of more specified frequency bands for specified purposes. The communication minister determins the relevant frequency bands.
Assignments may normally be transferred by auction, tender or fixed price as determined by the minister. However, the commission may limit the assignment holder's ability to transfer all or part of the assignment. The standard conditions for an assignment are set out in the Spectrum Regulations. The maximum duration for a spectrum assignment is 20 years.
An apparatus assignment issued by the commission confers rights on a person to use the spectrum to operate a specified network facility at a specified frequency.
The list of apparatus assignments available and the standard conditions for an assignment are set out in the Spectrum Regulations. An apparatus assignment is valid for a maximum duration of five years. The holder of an apparatus assignment may authorize a third party to operate a network facility. An apparatus assignment is required for each apparatus. To facilitate the transition to the new regime, a radio-communications station licence is deemed to be an apparatus assignment until it expires.
The commission may issue a class assignment, which confers rights on any person to use any frequency band or bands for a specified purpose. The Spectrum Regulations specify the matters the commission should consider when deciding the types of class assignments.
The categories of currently available class assignments that have been gazetted include:
- citizenband communications;
- cellular mobile access devices;
- leased channel radio access devices;
- spread spectrum devices; and
- trunked radio devices.
The conditions for class assignments are set out in the Notice of Issuance of Class Assignments.
Pursuant to the Communications and Multimedia (Spectrum) (Exemption) Order 2000 (the Exemption Order) which also came into force on April 1 2000, the operation of certain devices, equipment or systems are exempt from the requirements described above. The exempted devices are:
- remote control consumer devices;
- cordless telephones;
- medical and biological telemetry devices;
- security devices; and
- wireless microphones.
The Exemption Order also details the frequency bands exempted.
There are two conditions for these exemptions to apply: (i) the device, equipment or system must comply with the standards set out in the Second Schedule of the Exemption Order, and (ii) the device, equipment or system must be operating within the applicable frequency bands set out in the First Schedule.
Preferential Rights and Compulsory Acquisition
The minister may grant preferential rights over specified spectrum assignments and/or apparatus assignments to persons or classes of persons who satisfy specified conditions (to be published in the Official Gazette in future).
The minister may, on the recommendation of the commission, direct that a specified spectrum be compulsorily acquired by the commission. The commission is to establish procedures for compulsory acquisition. The payment of reasonable compensation to the holder whose assignment is acquired is at the discretion of the commission. Such compensation is not mandatory and the factors deemed relevant when determining the amount of compensation have yet to be indicated. No compensation is payable if an assignment has expired and is not renewed.
For further information on this topic please contact Julian Ding at Zaid Ibrahim & Co by telephone (+603 257 9999) or by fax (+603 254 4888) or by e-mail ([email protected]).
The materials contained on this web site are for general information purposes only and are subject to the disclaimer.