What rules and procedures govern spectrum allocation?
The allocation of spectrum is regulated under the Radiocommunications Act 1992 (Radcomms Act) and the Australian Radiofrequency Spectrum Plan 2017. Spectrum in Australia is managed through a licensing regime operated by the Australian Communications and Media Authority (ACMA). There are three types of radiocommunications licence issued:
- spectrum licences, which authorise the licensee to operate devices within a specified parcel of the spectrum;
- class licences, which authorise a person to operate a device of a specified kind, or for a specified purpose, or of a specified kind for a specified purpose; and
- apparatus licences, which authorise the licensee to operate devices to which the specific licence relates (eg, specific types of transmitter or receiver licence).
The Australian Radiofrequency Spectrum Plan divides the Australian radiofrequency spectrum into frequency bands to be regulated by ACMA. These frequency bands can be used only for the general purpose as specified in the relevant frequency band plan, or otherwise in accordance with a spectrum licence, class licence or in certain other circumstances set out in the Australian Radiofrequency Spectrum Plan.
The current radiocommunications legislation is presently under reform, and a consultation process is being undertaken by the Department of Communications and the Arts to modernise and simplify the spectrum management framework. ACMA has also issued a five-year spectrum outlook for 2016 – 2021 that sets out ACMA’s approach and key priorities to spectrum management in Australia in the coming years.
What fees apply to spectrum allocation/authorisation?
There are fees and costs associated with the issue of spectrum and apparatus licences. There are no fees payable for class licences as there is no application associated with a class licence, and is automatically issued to users in the same spectrum segment, and subject to the same licence conditions.
The fees applicable to an apparatus licence are set out in an apparatus licence fee schedule that includes administrative charges and an annual licence tax (which generally remains fixed over the term of the licence).
Spectrum licence holders pay three fees:
- ACMA charges (on a direct cost recovery basis);
- spectrum licence taxes calculated on an annual basis; and
- spectrum access charges (value-based fees) generally set by auction or through renewal of existing licences.
Can spectrum licences be transferred, traded or sub-licensed?
The Radcomms Act contemplates the transfer, trading, sub-licensing or other assignment of spectrum licences. Any assignment must be subject to the rules made by ACMA as set out in the Radiocommunications (Trading Rules for Spectrum Licences) Determination 2012. These include requiring the licensee to trade all or part of its licence as a single whole trading unit or multiple whole trading units, the trade cannot result in the assignee or assignor having a bandwidth less than the minimum contiguous bandwidth without ACMA’s permission, and providing all information required by ACMA about the assignment.
The Radcomms Act also permits the transfer of apparatus licences, subject to specific conditions being met.
Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.