Commonwealth Numbered Regulations - Explanatory Statements

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MULTIPOINT DISTRIBUTION SYSTEM BAND PLAN (AMENDMENT) 1992 NO. 156

EXPLANATORY STATEMENT

STATUTORY RULES 1992 No. 156

MULTIPOINT DISTRIBUTION SYSTEM BAND PLAN (AMENDMENT)

ISSUED BY THE AUTHORITY OF THE MINISTER FOR TRANSPORT AND COMMUNICATIONS

Part IV of the Radiocommunications Act 1983 (the Act) provides a basis for planning the use of the radio frequency spectrum. The primary planning instrument is the spectrum plan which divides the radio frequency spectrum into a number of bands and specifies the general purpose or purposes for which each band may be used.

Subsection 19(1) of the Act provides that the Minister may prepare for each band a frequency band plan not inconsistent with the spectrum plan.

Subsection 19(2) allows for a frequency band plan to make provision for and in relation to the purpose or purposes for which the band may be used (including any particular frequency or frequency channel).

Subsection 19(3) provides that a frequency band plan may be made either generally or as otherwise provided and, in particular, may apply with respect to a specified area or a specified period.

Subsections 20(1) and (2) of the Act require publication of a proposed frequency band plan prior to promulgation, with an invitation for interested persons to make representations. The Minister is required to give due consideration to any representations.

Subsection 20(4) of the Act enables the Minister to prepare a plan without prior publication and consideration of representations if the Minister is satisfied that the preparation of the plan is a matter of urgency.

The Multipoint Distribution System Band Plan (the Band Plan) (Statutory Rules 1988 No. 181) was notified in the Commonwealth of Australia Gazette on 8 July 1988. The Band Plan was amended by Statutory Rules 1990 No. 449, which was notified in the Commonwealth Gazette on 21 December 1990.

Clause 3 of the Band Plan sets out the primary and secondary purposes for which the bands 2076 to 2111 MHz and 2300 to 2400 MHz may be used. The primary purpose is identified as "Fixed Service - Multipoint Distribution Systems only".

Multipoint Distribution Systems (MDS) allow transmissions on a bandwidth broad enough for sound and full-motion pictures to multiple receivers. As such they allow a range of commercial applications, including pay-television. When pay-television is allowed to proceed from 1 October 1992, there could be a strong demand for MDS channels to deliver such services.

Clause 4 of the Band Plan makes further provisions for and in relation to the purposes identified in clause 3.

Subclause 4(1) divides the possible range of MDS services into five categories.

Subclause 4(2) provides that during stage I (until a day specified in a Proclamation made under sub-section 24A(3) of the Act) frequencies in the band may only be assigned for services in categories 1 to 4, up to a total of 13 frequencies at each location, with 6 frequencies at each location reserved for Stage II.

Subclause 4(j) provides that during Stage II (from and including a day specified in a Proclamation made under subsection 24A(3) of the Act) frequencies in the band may only be assigned at each location for services in categories 1 to 5.

Section 24A of the Act prohibits the licensing of domestic pay-television services. The Governor-General has made a Proclamation specifying that the prohibition (commonly referred to as the pay-television moratorium) will cease to apply from 1 October 1992.

The Government has decided that pay-television should be able to be provided using a range of technologies, including satellite, optical fibre and MDS. The Government has also agreed that the Act be amended to allow MDS frequencies to be allocated by price-based mechanisms such as auctions or tenders.

The Minister for Transport and Communications, being satisfied that the preparing of amendments to the Multipoint Distribution System Band plan was a matter of urgency, signed the amendments to the Band Plan on .......

There is a strong possibility that, prior to the pay television moratorium ending, there could be a rush of applicants for MDS licences to transmit material in categories 1 to 4, with their prime motivation being to position themselves favourably for the grant of MDS licences to transmit pay-television upon the moratorium being lifted. If the above applications were granted it could result in MDS licences being obtained for speculative purposes and frustrate the envisaged allocation of MDS channels for pay-television and other purposes by market based mechanisms.

To provide a legal basis for forestalling such a scenario, the amendment to the Band Plan inserts a new clause 4A which effectively prevents any new MDS licences being granted until 1 October 1992, other than those being regranted or for which an application was lodged before commencement of the new clause.


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