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A guide to the Radiocommunications Act 1989

The Radiocommunications Act 1989 is the primary legislation that sets out how radio spectrum is managed in New Zealand. The Act is an enabling act that sets out the management framework for radio spectrum, including establishing:

 

The Act provides for the creation of Regulations and other subordinate legislation prescribed by the Chief Executive. Subordinate legislation includes the Radiocommunications Regulations 2001 (the Regulations) and various Radiocommunications Notices and Radio Standards Notices.

The Act does not specify any objectives for spectrum management nor spectrum allocation. These are determined by the government of the day on a case by case basis. The Act makes no provision for public safety and security services, public broadcasting, Māori broadcasting or other social policy objectives, nor does it specify the uses for particular spectrum bands, nor specify any sector-specific rules.

Under the Act, it is an offence to transmit radio communications without a licence (with the limited exception of transmission for safety of life purposes, such as SOS calls).

 

Licensing regimes

Two forms of spectrum management are established under the Act: the management rights regime and the administrative radio licensing regime.

Management rights regime

The management rights regime is based on the Torrens system of property rights. An indefeasible property right to the frequency range covered by the management right is established through the registration of the management rights in the Register of Radio Frequencies. The maximum term of a management right is 20 years.

Management rights set the frequency boundaries and the boundary conditions for the property right. Conditions relating to spectrum licences created under the management right may be set at the time a management right is established, such as unwanted emissions limits and power floors. These conditions remain reasonably inflexible for the duration of the right and typically may only be amended with the agreement of neighbouring management rights holders and / or the Crown.

All management rights are owned by the Crown when first created. The Crown may then retain or allocate management rights to others by direct allocation or contestable means. The Act is silent on when rights should be created and how they should be allocated. In recent years, allocation has usually been by auction. This is a recognised way of efficiently allocating a good to the user that places the highest value on it.

Only the owner of a management right may issue spectrum licences to use the frequencies within the management right. Spectrum licences may be issued to the manager themselves or third parties. It is the spectrum licence which establishes the right to transmit and/or receive radio communications free from harmful interference. All spectrum licences must expire at the same time as or before the expiry date of the relevant management right.

All spectrum licences must be certified by an approved radio engineer before they can be registered and transmissions commence. Certification of proposed licences is expected to ensure any potential interference issues are avoided.

All management rights are nationwide rights. Spectrum licences may be for national, regional, or local transmission or reception of radio communications.

 

Administrative licensing regime

The Regulations, rather than the Act, cover the majority of aspects of the administrative radio licensing regime. The radio licensing regime applies to all frequencies in the radio spectrum that are not subject to the management right regime.

The Act provides for the government of the day to issue a policy statement to guide the administration of the radio licensing regime. The Chief Executive of Ministry of Business, Innovation and Employment (MBIE) is responsible for administering all frequencies under the radio licensing regime and has substantial discretion over the allocation and use of spectrum under this regime. The Chief Executive must follow the guidance set out in the government policy statement when using their discretion.

As with spectrum licences, radio licences must be certified before they are issued and transmissions commence. The Act requires all radio licences to be recorded in the Register of Radio Frequencies. The issuing of a radio licence does not automatically give the holder the right to be free from harmful interference. Licences may provide protection from co-channel emissions (i.e. other transmissions on the same frequency in the coverage area of the licence) or may not specify any protections.

 

General user licences

General user licences (GULs) can be issued under both the management rights regime (general user spectrum licences (GUSLs)) and the radio licensing regime (general user radio licences (GURLs)). GULs in the name of “all New Zealanders” are typically issued for lower power technologies such as WiFi routers, remote-controlled toys and models, cordless telephones, wireless microphones, safety beacons, and garage door openers. Without GULs, every person with a remote garage door opener, for example, would need to pay annual licence fees.

 

Interference

Under the Act, the primary mechanism to manage interference effects is the certification that any proposed licence will not cause harmful interference, which is carried out by approved radio engineers.

Where interference occurs, the Act sets out the processes to be followed if parties are unable to resolve an interference dispute through direct negotiation.

Parties affected by harmful interference may apply to the Chief Executive of MBIE to refer a dispute to arbitration under the Arbitration Act 1996. Alternatively, spectrum licence holders may apply to the courts directly for an injunction where interference is caused by an unlawful transmission on frequencies within the management rights regime.

 

Equipment that uses radio frequencies

Any equipment capable of transmitting a radiocommunication is deemed to have been used for transmission. All equipment that uses radio spectrum imported and used in New Zealand must comply with the relevant radio standards notices and reference standards.

 

Compliance and enforcement

Enforcement of the provisions of the Act and associated regulations is generally carried out by MBIE’s Radio Spectrum Management. However, spectrum licence holders may apply to the High Court directly for an injunction to prevent transmissions where other parties are causing interference to their transmissions.

 

Fees

The Act requires all licence holders to pay an annual administrative licence fee which recovers the cost of administering the radio spectrum. Fees are set in the Regulations.

 

Transitional provisions

The Act still contains transitional provisions covering incumbency of licences at the time the Act was enacted. Many of the licences granted under the transitional provisions have been replaced by new licences which extinguish any incumbency rights.


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Last updated 8 December 2014