Review of the Radiocommunications Act 1989: Discussion Document - Submission | MBIE 17 October 2014
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Review of the Radiocommunications Act 1989: Discussion Document Submission | MBIE 17 October 2014
Contents Introduction ........................................................................................................................... 1 Principles of the review ......................................................................................................... 1 THE RADIOCOMMUNICATIONS ACT 1989......................................................................... 2 2.2 Scope of the Act .......................................................................................................... 2 2.3 Radio spectrum management ...................................................................................... 3 3 MANAGING THE POTENTIAL FOR INTERFERENCE ...................................................... 4 3.2 Coordination of uses: frequency allocations and band plans ........................................ 4 3.3 The licencing process .................................................................................................. 4 3.4 Approved persons regime ............................................................................................ 7 4 WHEN INTERFERENCE OCCURS ................................................................................... 7 4.2 The arbitration process ................................................................................................ 8 4.3 Compliance and enforcement ...................................................................................... 9 4.4 Liability issues ........................................................................................................... 10 5 MANAGEMENT RIGHTS ................................................................................................. 10 5.2 Aggregation and transfer of management rights ........................................................ 10 5.3 Modification and cancellation of management rights .................................................. 11 5.4 Power floors .............................................................................................................. 12 5.5 Conditions on management rights ............................................................................. 13 5.6 Transactional tools .................................................................................................... 13 5.7 Geographic extent of management rights and spectrum licences .............................. 14 5.8 Regional rights........................................................................................................... 14 6 LICENCES ....................................................................................................................... 15 6.1 Unwanted emissions.................................................................................................. 15 6.2 Compliance with the International Radio Regulations ................................................ 15 7 OTHER INSTRUMENTS .............................................................................................. 16 8 COMPETITION ................................................................................................................ 16 8.2 Regulatory overlap during allocation processes ......................................................... 16 8.3 Spectrum caps (acquisition limits).............................................................................. 17 8.4 Competition issues in the administrative radio licencing regime ................................. 17 8.5 Competition issues and new technologies ................................................................. 18 8.6 Secondary markets .................................................................................................... 18 9 SPECTRUM SHARING .................................................................................................... 18 9.3 Discussion ................................................................................................................. 18
9.4 Dynamic spectrum access technologies .................................................................... 20 10 OTHER ISSUES ............................................................................................................ 20 10.1 Transitional Provisions............................................................................................. 20 10.2 Licences with multiple transmitter locations ............................................................. 21 10.3 Administrative Incentive Pricing ............................................................................... 21 10.4 Minor amendments .................................................................................................. 21
Introduction
1. Thank you for the opportunity to comment on the Review of the Radiocommunications Act 1989
(Act) discussion paper (discussion paper).
2. A noted in the discussion paper, the Act is enabling legislation that provides a mechanism for the
allocation of radio spectrum, use of bands retained by the Crown through licences and
management of interference.
3. We support the overall purpose and construct of the Act. The Act provides an effective
mechanism for the allocation of radio spectrum, use of bands retained by the Crown through
licences and management of interference.
4. The Act is a useful means of implementing Government spectrum policy and has resulted in
widespread and significant investment in wireless platforms and services. New Zealand
consumers have access to modern technologies and leading edge services. For example, mobile
operators are currently rolling out 4G networks to a significant proportion of the country.
5. Accordingly, in this submission we make suggestions on how the current mechanisms can be
improved by, for example:
a. Better specifying band plans to ensure compatibility with adjacent bands;
b. Improvements to the framework for mitigating interference between management rights
by providing a better balance between transmitter and receiver responsibility to mitigate
interference and ways to facilitate agreement between rights holders; and
c. The present terminology used in licensing (adjacent frequency emission limits, protection
limits, power floor etc) is ambiguous and is not aligned to ITU-R standards. For example
Power floor has no bandwidth associated with it, therefore it contradicts the principles of
resolution bandwidth given in ITU-R SM 329. Notwithstanding this, it is difficult in the
present regime to quantify receiver degradations in the presence of single or multiple
interferers. Our response proposes better alignment of the interference assessment
methodology with international ITU R standards.
6. We respond to the Ministry’s questions, below, in the order they appear in the discussion paper.
Principles of the review
1) Should the current dual spectrum management regimes (management rights and
administrative radio licencing) be retained?
2) Should more spectrum frequencies be placed under the management rights regime? If
so, which bands should be transferred to management rights and why?
7. As noted in the discussion paper, the Act has a reasonably narrow focus as enabling legislation.
We support the current regime which provides for management rights and administrative radio
licences.
8. The New Zealand market follows overseas standards and commercial deployment. Accordingly,
New Zealand spectrum management and allocations should seek to follow international trends.
Radiocomms Act review Public Version 1In general, Radio Spectrum Management (RSM) strikes a good balance between early
implementation and waiting for the development of commercial deployments in other key
jurisdictions. Excessive delays would have more significant opportunity cost as the wider
economic benefits of commercial deployment in New Zealand would be delayed.
9. Radio spectrum should be placed under management rights wherever feasible and particularly
where there is excess demand. This approach represents the most appropriate means of
promoting the efficient allocation of spectrum to the highest value use for the benefit of New
Zealanders. Through the coordination mechanism of the World Radiocommunication conference
and the development of international standards and commercial deployments, this approach
supports a reasonable implementation of an efficient bandplan in New Zealand.
10. Further to work underway at the International Telecommunications Union (ITU) through the
mechanism of the World Radio Congress (WRC) and the multilateral Radio Regulations treaty, it
is apparent that a number of jurisdictions will be planning to release significantly more spectrum
for mobile broadband use. It’s important that the Ministry plan for releasing more spectrum to
maintain aligned with overseas countries. This ensures that as new technical standards emerge
and equipment supporting them becomes commercially available, mobile network operators in
New Zealand are able to deliver the benefits of those innovations to New Zealanders at a
reasonable cost.
11. We believe that RSM has, in general got this right over time and based on the information
available to all market participants and the RSM to support the decision processes.
THE RADIOCOMMUNICATIONS ACT 1989
2.2 Scope of the Act
3) Should additional matters relating to radio spectrum management be covered by the
Act? If so, what other matters should be included?
12. At a high level we support the current scope of the Act. On the face of it, there are no significant
additional matters relating to radio spectrum management be covered by the Act. In that regard,
the framework of the Act is sufficiently flexible to deal with dynamic changes to the management
of spectrum rights, demand, and innovation.
13. Further, it is important that this flexibility be retained at the present time, and that it be kept under
periodic review. We also recognise that the scope for spectrum management objectives to be
determined on a case by case basis has served New Zealand well since the previous review.
4) Should the Act provide a comprehensive regulatory regime for all aspects of radio
spectrum management and how can this be achieved without imposing any unnecessary
regulatory burden on licence allocations?
14. The Act is focused on providing a mechanism for the allocation and management of Crown
spectrum. In other words, as noted in the discussion paper, it is enabling legislation for
Government spectrum policy. We support the Government maintaining the Act’s current role.
15. We support the current approach to the creation and maintenance of a clear, transparent and
predictable regime for spectrum management. In that regard it would be beneficial to all
Radiocomms Act review Public Version 2stakeholders if the Act provides a comprehensive regulatory regime for all aspects of radio
spectrum management. We consider that the current framework creates a permissive and not
unduly restrictive regime with limited overlap and with a limited need for stakeholders to deal with
aspects of the regime outside the current Act.
16. One of the cornerstone principles of the Act recognise the property rights associated with
management rights and spectrum licences. It is important to continue to treat the property rights
regime as a simple but material touchstone for all participants. Recognition and stability in the
treatment of property rights are key pillars of the rule of law in New Zealand and we continue to
support the recognition the Act provides for such rights in spectrum.
17. Beyond that, we consider that the Act rightly focussed on issues of interference and dispute
management to ensure that parties have clarity on rights, obligations and avenues for resolution
of disputes. We comment further below on some small areas in which small adjustments,
primarily to policy guidance, would enhance the effectiveness of the current regime in relation to
these matters.
18. It is difficult to see, in the abstract, what regulatory initiatives could be added to the Act. Given the
speed of technology development, changes in use, and in demand we think it is important for the
Act to retain the flexibility to deal with those environmental changes. As above, we support the
scope of the current Act and are not aware of spectrum regulatory initiatives being considered by
Government that would require a change to the Act.
2.3 Radio spectrum management
5) Should the Act be more prescriptive around particular matters or processes? If so, what
areas should be more prescribed and how?
6) Should the application of the government policy statement issued under section 112 be
extended to cover the government’s intentions for the management rights regime?
19. Policy statements are important for the Government to provide transparency when articulating
Government policy. This is particularly important in providing guidance to market participants in
determining their approach to issues. We do not believe that it is necessary for the Act to make
additional provisions for this.
20. We value the independence of any regulatory body in New Zealand within the constraints of
public international law and treaty obligations, and also recognise the role of the regulatory body
in implementing government policy. Through the Act, RSM has the tools it needs for present
purposes to ensure consistency with New Zealand’s obligations under the Radio Regulations, and
to manage the use of spectrum flexibly. Additionally, RSM consults effectively and extensively
with affected parties in relation to the detailed implementation of the Act and the Radio
Regulations.
21. We consider that the current approach to the management and allocation of radio spectrum in
New Zealand, including the application of section 112 of the Act provides a reasonable balance.
In our view, no change is required to the Act. If the Ministry were considering extending the
application of government policy statements to management rights, then the policy should not
apply to existing management rights. Government policy statements reflect the policy of the
government of the day, while management rights extend beyond the term of the government.
Radiocomms Act review Public Version 3Applying a government policy statement to existing management rights would add significant
uncertainty to management rights holders.
3 MANAGING THE POTENTIAL FOR INTERFERENCE
3.2 Coordination of uses: frequency allocations and band plans
7) Should a requirement for a national table of frequency allocations, based on the IRRs,
and national band plans be included in the Act? If so, how?
22. It is important that the Crown pays attention to using bands that are aligned with adjacent bands
in the duplex direction sense. Using bands that have a duplex direction conflict with the adjacent
bands is a recipe for creating sources of interference. In the same line, mixing Time division
duplex and Frequency division duplex (TDD/FDD) in a band is also a recipe for interference.
Leaving the industry to manage this interference and not accepting any responsibility for a basic
flaw in the band plans is overly simplistic.
23. That said, we are of the opinion that the Act should not go into details of frequency allocations
and band plans. These will change over time due to technology changes, new applications etc.
and if part of the Act will then require frequency changes to the Act. In fact if a band plan listed in
the Act cannot be followed/implemented due to technology enhancements or any other such
reasons, then the Act may be deemed to standing in the way of innovation.
24. We will comment later on the compliance with International Radio Regulations (IRR). We believe
the imposition of a blanket requirement to apply IRR to all situations is overly simplistic and a
blunt instrument, except where public safety issues arise.
3.3 The licencing process
8) Should the requirements placed on radio engineers during the certification process be
made directly and be more specific and/or compulsory? If so, how?
25. It is unclear what the Ministry has in mind.
26. The Accredited Radio Engineer (ARE) must undertake calculations required by the licence to
ensure compliance, but the calculations may not be shared. If the Ministry were to require
engineers to submit such information, then standardised calculation procedures may need to be
defined. For this to happen, the terminologies used by the act, Adjacent frequency emission limits
(AFEL’s), Protection Levels (PL’s), Power Floors (PF) and Maximum permitted interfering signal
(MPIS) need to be rigorous, aligned to ITU-R standards, and be directly applicable to sharing
calculations.
9) Are the matters that radio engineers must have regard to when certifying a licence
sufficiently defined under the Act or should there be further guidance provided to radio
engineers as they carry out their certification? If so, what form should this guidance take
and what issues should the guidance cover?
27. There are some gaps in the licensing process that the Ministry might want to consider further. For
example, the licences do not take into account any co-siting requirements. There is a protocol
agreed by the industry that Interference to Noise (I/N) degradation should not exceed 0.5 dB. It is
possible that a correctly licenced transmitter does not meet the I/N requirement. It is also unclear
Radiocomms Act review Public Version 4how to relate the I/N requirement to AFEL’s, PL’s, Power Floors, MPIS (terminology used by the
licence). The Ministry may wish to consult further on potential gaps.
10) Should the Act require all relevant information to be included on a licence application
to enable a complete assessment of technical compatibility when creating future licences?
If so, what information should be required?
28. Yes. The purpose of information to be listed on the licence is to enable licensees to complete
interference assessment and ensure that their licence complies with the AFEL/PL and any other
requirements etc.
29. As we move to the use of multiple bands by different operators requiring co-siting, any restrictions
imposed by co-siting may also require consideration. The restrictions imposed due to co-siting are
quantifies in terms of I/N ratio. The information on present licences may not be sufficient to
determine I/N compliance. Given the licence constructs today compliance with AFEL/PL can be
addressed but the co-siting restrictions are only addressed between concerned parties on a case
by case basis. As regards to the lists of any additional parameters required, these should be
derived from International Telecommunications Union Regulations (ITU R) sharing
reports/recommendations. This additional information would enhance licensees’ ability to monitor
and fulfil compliance requirements.
30. Another issue that is overlooked is the receiver characteristics. Interference can arise from an
offending transmitter or a rogue receiver- operating beyond its bandwidth or unable to work in the
presence of an adjacent channel interferer or have poor adjacent channel selectivity or all of
these. Under these events, it is unfair to blame the transmitter as an offender. At the moment the
onus of interference is all on the transmitter.
11) When assessing whether a proposed licence is ‘technically compatible’, should radio
engineers take account of the potential cumulative effects of transmission sources? If so,
how can this be enabled under the legislation?
31. Licences today are only focussed on AFEL/PL compliance. Cumulative effects of interference
cannot be modelled in this approach. On the other hand modelling the effects of cumulative
interference via degradations to the noise floor is captured in the I/N ratio. The amount of
permissible degradation is service dependent. For example mobile services operate close to the
noise floor, any degradation to the noise floor will in turn limit the coverage. Therefore only
nominal degradations such as 0.5dB are considered acceptable. The Act could legislate I/N
values that must be respected by cumulative interference. This small adjustment would be the
moste effective way to ensure that radio engineers can better manage the issue of technical
compatibility.
12) Should the beneficial position of being first in time be retained in the Act? If not, how
should this be addressed?
32. This could be a hindrance to maintain and is akin to the first in time right of a “Tin Hut” where a
runway has to be built. Therefore, if a first in time licence is operating with non-standardised
transmitters or receivers and prevents legitimate subsequent use in adjacent bands by others,
then the first in time right is a hindrance. Accordingly we propose that the beneficial treatment of
being first in time be more clearly treated as a rebuttable presumption. Where evidence
demonstrates that the use of non-standardised equipment is a constraint on the subsequent
Radiocomms Act review Public Version 5legitimate use of licences in adjacent bands, the first-in-time right should not be available to the
relevant operator.
13) Should radio engineers be required to consider whether a proposed licence is
technically compatible with potential future uses of adjacent management rights? How
should these potential future uses be defined?
33. The difficulty with the future compliance is not knowing what constitutes the future and to be able
to accurately predict the future so that interference co-ordination can be done. We think it difficult
to prescribe any requirement to consider technical compatibility with potential future uses.
Perhaps it would be reasonable for policy guidance to recommend that radio engineers consider
whether a proposed licence is technically compatible to the extent of current knowledge with
potential future uses of adjacent management rights currently under consideration. This constraint
is likely to provide a reasonable check on the issue of a proposed licence, while recognising the
limits of forecasting the future.
14) Should any additional information be recorded on licences? If so, what types of
information should be recorded?
34. Please see answer to point 10 above
15) Should the information requirements in the Register for spectrum licences and radio
licences be aligned? If so, what should be the minimum information requirement for
licences?
35. Yes they should be aligned. This is because mechanisms that result in interference have nothing
to do with licence type. Furthermore, interference does not have a tag identifying the licence type
and therefore enabling the treatment of interference differently.
16) Should it be made an offence to inaccurately record or over-record parameters on a
licence? If so, should any tolerances be applied and how should this be done?
36. Honest mistakes are always possible and should be overlooked. We do agree that wilful
blindness or intentional inaccurate recording, that results in either a loss of service or serious
degradation to service quality to the detriment of an affected party should not be condoned.
17) Should the Maximum Permitted Interfering Signal parameter be retained? If so, should
this be specified in the Act, should MPIS relate solely to co-channel emissions, and should
there be a specified minimum MPIS for different services? Are there preferred alternatives
to the MPIS parameter?
37. This is related to I/N level which is a better measure than MPIS. Using I/N, maximum allowable
interference van be found. There is some value in defining an I/N for different services. We
suggest that a specified I/N should be defined for each different service as an alternative to the
specified minimum MPIS.
18) Should receiver data be publicly recorded as part of the certification and licencing
process to assist technical analysis of future emissions? If so, how?
38. Yes it should be. At the moment the emphasis on interference co-ordination is on the transmitter
and less so on the receiver. Transmitters should operate in their allocated bands, and allowed to
Radiocomms Act review Public Version 6send out of band emissions and spurious emissions as per relevant standards. Likewise receivers
should be restricted to their specific bands and be able to function in the presence of interferers
that meet the receiver’s adjacent channel selectivity criteria. This parameter and receiver blocking
criteria should be listed on the licence.
19) Should new provisions be introduced to set tolerance limits for receivers from
emissions in adjacent frequencies?
39. A receiver is able to function properly in the presence of emissions from its own transmitter. It is
only transmitters in adjacent bands causing out of band and spurious domain emissions that are
the subject of interference co-ordination. Another case is secondary transmitters that are co
channel.
3.4 Approved persons regime
20) Should the Act include provisions establishing the process for authorising Approved
Radio Certifiers? If so, how?
40. The Act should state that the licences can only be create by an ARE and specify the process of
becoming an ARE.
4 WHEN INTERFERENCE OCCURS
41. We support the general interference management framework which seeks to encourage
management rights holders to resolve interference issues. It would be inefficient to seek to
prevent all spill over between bands and, therefore, there needs to be co-operation between the
rights holders.
42. This means there is a clearly defining management rights holders rights and framework that
encourages the parties to agree efficient management of potential interference at the edges.
We believe this can be promoted by:
a. The Crown providing a factual assessment where requested (see paragraph 53 below).
Measuring interference can be a difficult thing to do and, when interference occurs, the
Crown may help resolve issues by providing a factual assessment of interference.
b. Ensuring we follow international standards for defining the spectrum. This means that, to
the degree possible, all parties can refer to international precedent and technical
guidance;
c. Ensuring there is a balance between transmitter and receiver of interference in resolving
interference issues. At this stage, the onus is on the transmitter and there can be cases
where the actions of the receiver can cause or increase the severity of interference.
Efficient mitigation requires action by both sites;
d. Robust arbitration processes that encourage the right behaviour. Arbitration is important
because of committed investment and the parties wider incentives. The arbitration
processes should encourage the parties to focus on technical costs and actions to
resolve interference issues.
Radiocomms Act review Public Version 74.2 The arbitration process
21) Is an arbitration process appropriate for managing disputes between parties? If not,
what other process should be included in the Act?
22) Should the dispute resolution processes under the Act be updated? If so, how should
the process be updated?
23) Are the matters an arbitrator must have regard to, in reaching a decision, appropriate?
If not, what other matters should the arbitrator consider?
24) Should any resolution reached through a dispute resolution process be binding on the
participants?
25) Should injunction or other cease and desist mechanisms be provided for in the Act
itself, as a prelude to arbitration? If so, what limits and criteria should apply prior to such
as mechanism being used?
26) Should timeframes in the Act be amended and should the actions of the Chief
Executive be bound by timeframes prescribed in the Act?
27) Should the Act include a right of appeal against the Chief Executive’s decisions? If so,
to whom should the appeal be directed?
28) Should disputes involving both lawful and unlawful emissions be able to be subject to
arbitration or other dispute resolution process? What limits of applicability would be
appropriate?
43. As noted above, the arbitration process needs to be considered in the context of the interference
regime.
44. At a high level we recognise that arbitration rules and principles aligned with the Arbitration Act
provide parties with a good level of clarity and certainty of the processes and procedures
available to them. So in that sense we support he arbitration under the Arbitration Act being an
option available to parties under the Act. However, we also recognise that:
a. Arbitration under the Arbitration Act can be expensive, complex, and result in sub-optimal
outcomes;
b. Is not subject to appeal so cannot be readily varied but provides the parties with certainty
following a robust and comprehensive process;
c. Enables the parties to get quick access to a tribunal for hearing and determining the
dispute.
45. Nonetheless, we support the continued use of the dispute resolution processes in the Act
46. We consider that any resolution should be binding on parties to the dispute. Unless the resolution
is binding and a breach has consequences, it creates scope for continued harm being suffered.
47. Injunction has always been an equitable remedy which should, at common law, remain available
to parties through the courts. The benefit of imposing injunctive powers on the Secretary, the
Radiocomms Act review Public Version 8Chief Executive or the arbitrator and less clear. The current powers available to them seem to be
sufficient to enable a speedy and temporary resolution if required, pending a more fulsome
process.
48. We think that it would be useful to break down dispute resolution processes so that lawful
emission disputes can be quickly and easily dealt with and are binding on parties without further
scope for appeal; and unlawful emission / disputes which can be subject to arbitration and
possible appeal of decisions by the Secretary.
49. A right of appeal should be balanced with the speedy resolution of disputes. We would support a
right of appeal in respect of unwanted / unlawful interference but not a right of appeal against
decisions on lawful interference.
4.3 Compliance and enforcement
29) Should the Crown, through the Ministry, be involved in interference management in
frequency bands subject to private management rights?
50. We have already mentioned that frequency bands subject to private band management must be
aligned in the duplex sense with the adjacent bands. Furthermore TDD/FDD systems should also
not be made adjacent to each other. Interference arising from this scenario is not due to the
owners but due to a flaw in band allocation and the Crown must take responsibility for this.
51. When spectrum is sold to private owners, the new owners justifiably expect that the spectrum is
free of interference, and does not have unauthorised users. At present the onus is on the
management right holder to track down illegitimate users and present information to the Ministry.
In some overseas jurisdictions the Administration often surveys the noise floor of private bands to
monitor unauthorised emissions.
52. Interference can arise form legitimate users operating in adjacent bands, but if the level of this
interference is beyond what is permissible then this could result in a loss of performance to the
victim service. Policing unauthorised use is the responsibility of the Crown.
53. Resolution of interference between band managers should first be left to the band managers and
if this is not possible then the Crown may have a role in providing a view if the interference claims
are valid or not. There is also an arbitration process in case parties cannot come to an
agreement. However for this to happen, facts must be known. The Crown can help in the factual
assessment.
30) Should any additional enforcement provisions be included in the Act?
31) Should the maximum penalties for contravention of the Act be amended?
32) Should the scope of section 2 of Schedule 1 be limited to purely capture the impact on
emergency and safety signals, and reduce unintended consequences? If not, why not?
54. Unauthorised use can result in a serious loss of performance to the band manager, who
legitimately own the spectrum. The penalties do not reflect the damage caused by unauthorised
users. Therefore penalties should be appropriate.
Radiocomms Act review Public Version 94.4 Liability issues
33) Should liability in regard to certification be introduced and should this rest with the
certifier, the licence holder, or the manager (as the actual licencing authority)?
34) Should radio engineers be required to be independent of the entity on behalf of which
they are certifying spectrum?
35) Should ARE’s and ARC’s be treated consistently in terms of liability, independence and
authorisation?
36) Should the certification process be articulated independent of the responsibilities of
the Registrar under the Act?
55. A certifier should be liable for the correctness of any certifying within the agreed rules and agreed
designs. If, for example a certificate states that a particular design will not cause harmful
interference with adjacent rights holders then they should be held to that.
56. If, however, a licensee intentionally or negligently changes their equipment or design in any way
that creates a material change ot the basis of the certificate, then the licence holder should be
liable.
5 MANAGEMENT RIGHTS
5.2 Aggregation and transfer of management rights
37) Should the requirement under section 38 that AFELs are below the protection limit of
adjacent frequencies also apply when management rights are being modified,
amalgamated, or divided?
57. Spark agrees that when management rights are being amalgamated than the new amalgamated
right should have new AFEL’s and PL’s. The AFEL’s of this new amalgamated right should be
below the PL of frequencies in adjacent spectrum.
58. This will also apply when a management right is subdivided. On the other hand if the emissions
levels are defined in terms of dbm/Hz or level in a specific bandwidth, then the amalgamation of
Management Rights (MR’s) or subdivision will not have any impact on the AFEL value.1
38) When two management rights are being amalgamated, should modification of the
protection limit to remove the ‘spike’ at the common boundary be included in the
amalgamation process? If so, what should the protection limit default to either side of the
common boundary?
59. We agree that when management rights are being amalgamated than the new amalgamated MR
could result in a new PL. This will need to be looked at on a case by case basis. On the
1
dbm/Hz means power spectral density in terms of log(milliwatts) per Hertz
Radiocomms Act review Public Version 10otherhand if the emission levels that determine the AFEL are normalised to a specific bandwidth
then the redefinition of PL’s may not be necessary.
5.3 Modification and cancellation of management rights
39) Should greater flexibility be allowed to modify management rights once they have been
created? If so, what modifications should be allowed with the agreement of whom (i.e.
managers, rightholders or others)? Should this include aggregation of rights with different
expiry dates?
60. The timespan of a management is typically 20 years and there may be need to modify the
management right where, for example, a modification may better cater for new technologies.
Therefore, the Ministry should be open to agreeing efficient modifications to management rights.
61. When rights with different expiry dates are aggregated, it makes sense that the Ministry entertain
changes to the expiry date on a case by case basis. For example, agreeing modifications on the
basis that any licences created by the aggregated right will expire on the earliest of the expiry
dates of the constituent management rights.
62. At a high level an appropriate level of flexibility to use any relevant technology in the licenced
spectrum during the management right period ensures that the spectrum is being put to its most
valuable use, based on market and technology drivers. It should accordingly be easy to readily re-
licence different technologies within the spectrum at the discretion of the right holder / manager.
40) Should the Crown, with the consent of the manager and/or rightholder(s), have the
ability to cancel or terminate management rights? If so, what limitations, if any, should be
applied to this power?
63. The success of the current arrangements is due, to a significant part, to the certainty
management rights have over the rights to use the spectrum. Therefore, we agree that the Crown
should only look to modify or cancel rights with the agreement of the rightholder.
64. If the basis of an allocation of Spectrum is found to have been done in error or in a manner that’s
inconsistent with international obligations, it should be possible to cancel or terminate rights in a
manner that takes account or existing rights and those of others that may have an interest in the
spectrum. These have not had regional management rights to date.
65. In the case of an ill timed auction where a wrong band plan is used for the basis of the auction it
may be necessary to terminate the management rights. This is the case in the 3.5 GHz band
which has been sold for fixed wireless access, but the band plan for mobile use is yet to be
finalised and possibly will not be compatible. The options are to wait until the expiry of the rights
or terminate the rights and replan the band.
66. If the Crown does decide to terminate the rights then this has to be with the consent of the
manager and or right holders, and cannot be unilateral. The band manager and/or right holders
have a legitimate expectation to be refunded for the unused part of their spectrum tenure and any
loss incurred due to the premature termination of this right
67. Even if the correct band plan is used as the basis of auction, technology innovation may require a
new band plan sooner than the tenure of the right. In this case attention needs to be given if the
present tenure of 20 years is optimum.
Radiocomms Act review Public Version 1141) Should any changes to the ability to modify or cancel management rights be applicable
to existing management right or only as new management rights are created?
68. The Act should seek to provide that a consistent set of principles can be applied to both existing
and new management rights. It is important, however to recognise that existing management
rights, and the expectations of those rights holders will be more entrenched and should be less
susceptible to cancellation unless a material change in circumstances warrants some form of
reconsideration. However, all other principles that recognise property in management rights
should be applied.
69. We would like the Crown to be more open to agreeing amendments to management rights where
there has been agreement by all affected rights holders. For example, in terms of current
discussions, the simplest outcome that provides most certainty to 2600MHz band rights holders is
to amend the relevant management right. The Act should explicitly make provision for
amendment of a management right when all affected parties agree.
5.4 Power floors
42) Should power floors be retained? If so, are they appropriately defined?
43) Should reference bandwidths for power floors and other limits be specified? If so,
should these be specified in the Act, the Regulations or through conditions on
management rights?
70. The terminology of power floors is ill defined with no backing from ITU-R standards. It cannot be
used in any sharing calculations. It is hard to understand even after 20+ years that the act has
been in force.
71. The term power floor is only specific to MBIE documents. It does not appear in any ITU R
documentation on spectrum management, nor does it appear in any equipment standard
literature. It does not translate to criteria that one can use to determine the impact of interference
on a victim receiver. Besides there is no bandwidth associated with the power floor level it is
extremely difficult to implement. Defining a signal level without bandwidth is simply meaning less.
It even cannot be measured. ITU R SM 329 is regarded as the bible for spectrum management, it
gives resolution bandwidths for measuring spurious domain emission levels. One wonders why
this important recommendation is ignored.
72. Receivers are often protected by defining an interference level with reference to the noise floor.
Both the noise floor and the interference levels are specified in a reference bandwidth. This
results in an I/N ratio. Receiver protection is defined in terms of I/N ratios in all ITU R sharing
studies.
73. Lack of bandwidth information associated with the power floor is seriously flawed, it is one of the
most difficult issue associated with the Act since its inception. Resolution bandwidths for spurious
emissions are defined in ITU R SM 329. In all our previous responses we have asked for
specifying a bandwidth for this level. Please note that even ITU R SM 329 has limitations as it
was written a long time ago primarily in terms of narrow band signals. Nonetheless it referred to
by the 3GPP with additional considerations for wideband signals.
Radiocomms Act review Public Version 1274. In summary the concept of power floor is ambiguous, it has no bandwidth associated and it
cannot be used to protect receivers. It is best to align with ITU R recommendations and sharing
studies and define:
a. I/N levels for receiver protection
b. Resolution bandwidths for out of band and spurious domain emissions.
5.5 Conditions on management rights
44) Should the nature and type of conditions the Crown (as the initial manager and before
sale or transfer) is able to place on a management right be extended? If so, what types of
conditions should be allowed on management rights (for example ownership caps,
limitations on the use of, or transfer of, management rights)?
45) Should the Act include provisions to ensure that spectrum is put to use to provide
services for consumers? If so, what form should these provisions take?
46) How should conditions on management rights not applicable to individual licences be
enforced? What entity should be responsible for their enforcement? (see Questions 59 to
67)
75. The Crown is already able to apply conditions on management rights through the license
arrangements. To date, the Crown has applied different conditions:
a. Spectrum acquisition caps;
b. Obligations to use spectrum or return it to the Crown; and
c. Roll out conditions.
76. These conditions are now reasonably understood by providers – we don’t support additional
conditions.
77. We consider the current regime pursuant to which conditions are imposed by deeds or contracts
is working relatively well. It provides for a degree of consultation and limited scope for negotiation
of appropriate conditions being implemented prior to parties bidding or purchasing spectrum.
Some flexibility for negotiation by the right owner post acquisition should be accommodated to
deal with changing market and technological conditions.
78. In general the Act should empower the Secretary to ensure that spectrum is either being used to
deploy services to consumers in line with demand within a reasonable time. We recognise that
spectrum acquisition provides a series of valuable options for parties and consider that, in
general, conditions should not be imposed under statute for parties whose acquisition is
motivated by legitimate commercial and/or technological drivers, even where actual use is
delayed.
5.6 Transactional tools
47) Should the Act include additional provisions to support leasing and the operation of
power of attorney in relation to the operation of management rights?
Radiocomms Act review Public Version 1379. We are of the view that the existing mechanisms in the Act, when supported by the general law
and tools already used by parties, are sufficient.
5.7 Geographic extent of management rights and spectrum licences
48) Should the Act be explicit about the geographic extent of protection limits for
management rights and spectrum licences?
49) Is there a need to assert management of spectrum outside the 12 mile limit?
80. Spark has coverage of its’ mobile network that extends well beyond the 12 mile limit typically for
commercial shipping and pleasure craft, and therefore there is a requirement to exert
management rights outside the limit. The 12 mile limit needs to be extended to reflect the reality
of how spectrum is used and avoid interference from competing users.
5.8 Regional rights
50) Is there demand for regional management rights? For what services?
51) What is the relationship between regional management rights (and demand for this)
and any future deployment of technologies such as white space networks?
52) If regional management rights are introduced, should the decision to create regional
rights lie solely with the Crown at the time of primary allocation, or should existing
nationwide management right holders be empowered to subdivide their rights? If so, how
could this be achieved? What are the benefits and costs for regional management
techniques?
53) If regional management rights are introduced, how should the areas covered by the
rights, signal strengths, and boundary conditions be defined?
81. Spark is a national service provider and, accordingly, for now and the near future we support
national management rights. We recognise that with technical change we may need to consider
this further in the future. Nonetheless, there are potentially significant costs associated with
regional rights and it’s difficult to see regional rights being efficient for mobile markets.
82. The key limitation of regional rights is foregone opportunity for improved national service (and the
efficiencies and benefits this brings to end users). This is because capacity or capability would be
taken from a national provider within that region. This is likely to impact rural consumers more
and national providers would likely focus on urban markets (and spectrum).
83. In practice, a regional approach would also be technically difficult to implement. It would be
difficult to identify bounded geographic areas where spectrum remains unused by a national
provider. Even in regional areas, Spark NZ plans to use a mix of 2600MHz, 1800MHz and
700MHz LTE spectrum to provide capacity to regional towns. Therefore, while high frequency
bands might not be used to provide national coverage, they will be used in all regions to provide
additional capacity and enhanced capability through Carrier Aggregation of LTE bands.
84. Further, a regional approach would also likely result in less efficient spectrum use at the
boundaries. Spark NZ currently uses 1800MHz spectrum for mobile services which must co-exist
with fixed links from other operators. In order to use a mix of technologies we have had to
Radiocomms Act review Public Version 14maintain a boundary. While an isolated case, if generally applied to mobile spectrum, there would
be a material efficiency impact.
85. Nonetheless, there may be more opportunity for a regional approach for stationary fixed links
where it is easier to manage interference.
86. If regional management rights are introduced special provisions for boundary conditions cannot
be made. Interference mechanisms have no relationship with artificial boundaries, i.e. they are
not tagged with a management right type. Consequently a differential treatment of interference
due to management right type is not possible”
6 LICENCES
6.1 Unwanted emissions
54) Are unwanted emissions from transmitters operating under a spectrum licence
appropriately managed under the Act?
55) Should unwanted emissions in the spurious emission domain and outside specified
UELs be explicitly managed under the Act? If so, how should this be achieved?
87. The management of unwanted emissions could be improved. The Act only determines AFELs
and PL’s. It does not specify the source of interference – there is no mention of out of band
emissions and spurious domain emissions that make up the AFEL. There are cases of a receiver
adjacent to a transmitter where part of the receive band is in the out of band domain and part in
the spurious domain. There is no way to manage this mixed interference case.
88. Unwanted emissions especially in the spurious domain can extend very far outside the legitimate
bandwidth of a transmitter. The spurious domain levels for different frequency separation from the
centre frequency of the transmitter, and associated resolution bandwidths are specified in ITU R
SM 329. The Act can simply refer to that.
56) Should rightholders have protection from harmful interference from unwanted
emissions above and/or below the power floor?
89. We have already expressed reservation on the concept of power floors. Protection of victim
receivers should be done with the help of I/N ratios whose value may be specific to a service that
needs protection.
90. The requirement to protect from harmful interference is simply too broad. In this case no systems
will ever be able to co- exist as interference is always there and for a very small percentage of
time harmful interference could occur.
6.2 Compliance with the International Radio Regulations
91. Compliance with IRR’s is a fundamental requirement. There is no specific need to state that per
se. At any rate, the RR’s do not often give guidance for systems to co-exist as numerous sharing
studies conducted by the ITU _R do. However in case of co-existence with FSS, Radars, or safety
of life services etc, there are instances where transmission in a band has associated pfd levels
mentioned in the Radio regulations that we must comply with. If that is the case then we have to
comply with that.
Radiocomms Act review Public Version 1557) Should there be a distinction between the application of the IRRs to international and
domestic interference management under the Act?
92. There are no neighbouring countries in NZ to cause interference arising from foreign sources and
the need to invoke international IRR’s.
58) Should the requirement for rightholders and radio licence holders to comply with the
IRRs be amended? If so, how?
93. The only amendment required may be to define receiver protection also with harmful interference
but only for certain types of services.
7 OTHER INSTRUMENTS
59) Should the subordinate legislation or regulation making powers under the Act be
extended to cover additional matters? If so, what additional matters should be covered?
60) Should the role and status of some or all of the PIBs be recognised in the Act and/or
Regulations? If so, how should this be achieved and what types of PIBs should this cover?
94. The PIB’s are important documents that enable the ARE’s to perform the licencing process, yet
are not part of the act. They should be referred to in the Act. The role of PIBs in regulating
spectrum is not disputed. They are relevant matters for consideration by the Ministry. Like any
other relevant matters they are considered alongside other matters in the determination of any
final decisions. Reference to these in the act is not required for them to remain relevant
considerations.
95. The PIB’s are important documents that enable the ARE’s to perform the licencing process, yet
are not part of the act. They should be referred to in the act.
8 COMPETITION
8.2 Regulatory overlap during allocation processes
61) Should the current overlap between government policy setting and the role of the
Commerce Commission in spectrum allocations be clarified? If so, how?
96. We do not have a preference which body considers competition issues. However, whichever
body considers these issues, consideration should occur prior to the auction in order to provide
certainty to the parties.
97. Otherwise, we continue to support the provisions of section 138 and the role of the Commerce
Commission in providing a clearance where relevant. In general competition in markets affected
by spectrum holdings of parties should continue to be regulated ex post under the Commerce Act.
To date there does not appear to be any sign of market failure to warrant a detailed ex post
regulatory regime dedicated to spectrum use. Spectrum holding by a single party
98. Creeping acquisitions of spectrum which enable a party to block competition in a market or in
adjacent markets could already be litigated under the Commerce Act.
Radiocomms Act review Public Version 168.3 Spectrum caps (acquisition limits)
62) Are spectrum caps still necessary, either initially or for the longer term, and if so,
should they have a legislative basis?
63) In setting spectrum caps, should total spectrum holdings be considered or should
spectrum caps solely relate to particular bands? How should broader caps be determined?
64) Should any legislative mechanisms to apply spectrum caps be generic and flexible
enough to apply to all high-value spectrum uses, or should they be specific to particular
uses? How could flexibility for technology changes be incorporated?
65) What are the most appropriate mechanisms to implement competition safeguards in
radio spectrum using markets? Are the current deeds and agreements sufficient or should
competition safeguards have a legislative basis?
66) If spectrum caps are given a legislative basis, how should they be affected?
67) Should spectrum caps be applied at the initial allocation for a limited number of years
with a periodic review of whether they remain necessary, or for the entire length of the
management right?
68) Should any process, criteria, or framework for the review of spectrum caps be included
in the Act?
69) Should the Commerce Commission be involved in any review of spectrum caps? If so,
how?
99. We do not support general spectrum caps in principle. Nonetheless, as with use it or lose it and
coverage requirements, spectrum caps at allocation times are now accepted allocation
requirements.
100. If spectrum caps are to be implemented, we support the current application of spectrum caps
to the initial allocation processes and any subsequent secondary trading being subject to
Commerce Commission oversight. Further, in calculating spectrum caps, holdings in multiple
bands should not be aggregated because every band has a specific purpose and service
providers seeking to provide a complete range of services requires access to the relevant bands.
101. Wireless technologies and markets are dynamic and, therefore, it’s important that the Ministry
and Commission have flexibility to consider the circumstances at the time spectrum is allocated or
transferred between parties. Therefore, the Act is not an appropriate place for the establishment
of a sector specific competition policy in respect of spectrum. Considering spectrum caps as part
of the allocation process, as occurs today, allows regulators to consider relevant competition
issues at the time.
8.4 Competition issues in the administrative radio licencing regime
70) Should competition regulation in the administrative radio licencing regime be
introduced? If so, how?
Radiocomms Act review Public Version 17102. Digital Microwave Radio is increasingly becoming popular for back and front haul application
with mobile operators. At the moment DMR operates under administrative licencing with the
Crown as band manager.
103. It may be necessary at some stage in the future, depending on use and competition in the
band, to impose caps of some form (if a competition concern were to develop).
8.5 Competition issues and new technologies
71) What competition issues may arise from the deployment of new technologies?
104. Firstly it is not clear what is meant by new technologies, new today is old tomorrow. During
the life of a spectrum management right (typically 20 years), there may be many evolutions of
how a band is used.
105. Secondly it is not clear what aspect of new technologies should one consider. Whatever a
technology, interference from un-coordinated sources is always a menace and has to be limited to
acceptable levels. Technology advances are primarily addressing the mitigation of interference
from own system.
106. If so, some cases of cognitive radio applications are discussed later in this document under
question 75.
8.6 Secondary markets
72) Are the any legislative barriers to an active secondary market for radio spectrum in
New Zealand? If so, how should they be addressed? Are there other barriers to be
addressed?
107. We’re not aware of any legislative barriers to a secondary market.
108. We consider that spectrum trading in secondary markets is important to ensure an efficient
distribution of assets to serve New Zealand markets, recognising that technology changes and
demand often create cycles within the ownership window that warrant changes. These should be
driven by commercial, technological rather than political goals and we consider that the current
Act provides an appropriate framework for secondary spectrum trading.
109. The framework should be as permissive as possible – with spectrum assets as tradeable as
any other property.
110. Spectrum caps tend to fall away over time and once those have fallen away it is appropriate
that acquisitions of spectrum remain subject to the merger provisions of the Commerce Act.
9 SPECTRUM SHARING
9.3 Discussion
73) Are there changes to the general user radio licence regime that would facilitate greater
use of this mechanism without unduly affecting the rights of incumbent users?
74) Are power floors in management rights effective in achieving spectrum sharing?
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