Review of the Radiocommunications Act 1989
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Review of the Radiocommunications Act 1989: Comment on proposals to address interference management Two Degrees Mobile Limited Submission to the Ministry of Business, Innovation & Employment, Radio Spectrum Policy & Planning radio.spectrum@mbie.govt.nz 15 July 2015
Contents
1 Introduction ............................................................................................................................... 3
1.1 High Level Comments ............................................................................................................ 3
1.2 Key issues that must be addressed as part of the Act Review ................................................. 4
2 2degrees suggestions ................................................................................................................. 5
2.1 Proposal 1: Strengthen the engineer certification obligations ................................................ 5
2.2 Proposal 2 : The arbitration process should be available when there is harmful interference . 8
2.3 Proposal 3 : Access to remedies ........................................................................................... 10
3 2degrees’ comments on MBIE/stakeholder options ................................................................. 12
3.1 Spectrum licence certification .............................................................................................. 12
3.2 When interference occurs .................................................................................................... 17
12
1 Introduction
Thank you for the opportunity to provide further comment on the review of the
Radiocommunications Act 1989. This paper comments on the MBIE Review of the
Radiocommunications Act 1989: Interference Management Workshop Brief (May 2015) (‘the
Workshop Brief’) and additional options submitted by stakeholders following the MBIE workshop.
Our response should be read in conjunction with our previous submissions on these issues, set out in
2degrees’ submission on the Review of the Radiocommunications Act 1989, Discussion Document
(October 2014) and 2degrees’ cross-submission on the Review of the Radiocommunications Act
1989, Discussion Document (December 2014).
1.1 High Level Comments
2degrees continues to be concerned that as part of this Act review MBIE addresses the higher level
issues with the Radiocommunications Act as a priority before addressing specific issues at the more
granular level.
While we have found the Workshop Brief a useful reference document, we note that the options
proposed in this document focus on fixing detailed issues and do not propose solutions to fix the
higher level issues highlighted by a number of parties, including 2degrees.
As the Workshop Brief sets out, in terms of the interference management aspect of the
management rights regime the Act “establishes a framework to describe the rights and some
administrative processes around how licences are created, registered, mortgaged, caveated and
modified. In addition, it establishes processes to prevent interference occurring and address it if
interference occurs”.
As highlighted in our previous submission, the current Act framework has not achieved this to a
satisfactory extent. In fact:
Significant foreseeable and preventable harmful interference has occurred on multiple
occasions as a result of the Act’s outdated concepts and assumptions, and weak obligations on
the certifying engineer to ensure such instances do not arise;
The processes/remedies to address such situations are highly dissatisfactory. It was clear to
2degrees as it tried to address substantial interference concerns in 2009 that both officials and
industry stakeholders were unclear as to the position of the Act and the process for addressing
such issues;
There remains significant uncertainty regarding responsibilities and liabilities for addressing
interference issues, which limit the effectiveness of available remedies;
The Act does not provide a clear framework for addressing all types of harmful interference that
arise, or that are likely to arise in future. Instead stakeholders must rely on uncertain and ad hoc
interventions on a case-by-case basis.
Submissions and discussions at the workshop further highlighted that:
There is not a clear and common understanding of the Act’s engineer certification obligations,
including lack of clarity on IRRs/ITU-standards and how these should be taken into account;
There is not a clear and common understanding of what license(s) have to comply with to avoid
harmful interference;
3 MBIE appeared to consider that a number of issues were dealt with at the allocation/band
planning phase, without recognition that circumstances change over time. This is particularly
important when considering the long term nature of management rights and technology
evolution over that period.
MBIE also appeared to consider a number of issues were unnecessary to address as part of the
Act review because they were either inherent in the current framework or duplicated elsewhere.
The lack of stakeholder certainty and/or clarity apparent at the workshop indicates there is a
role for MBIE in clarifying and raising awareness of such interpretations where the MBIE
considers this the case.
1.2 Key issues that must be addressed as part of the Act Review
This is the first substantial review of the Radiocommunications Act in over 15 years. 2degrees
encourages and challenges MBIE to use this opportunity to address the more fundamental issues
identified with the current Act:
Does the Act provide a framework to prevent harmful interference?
Does the Act provide a framework enabling issues of harmful interference to be effectively
addressed when they do arise?
2degrees is of the view that at a minimum, the following changes have to be made to address key
shortcomings of the Act:
1. Strengthening of the engineer certification obligation in the Act to ensure that all
stakeholders are clear on the engineer’s responsibilities in certifying licences and that all
types of harmful interference are considered;
2. Ensuring the arbitration process (or a similar alternative) is available to address all types of
interference, including where the lawfulness of emissions is contested;
3. Ensuring remedies under the Act are available for all types of harmful interference, not just
harmful interference from co-channel emissions.
Without addressing these more fundamental issues the Radiocommunications Act will fail in its
objectives to:
Effectively prevent harmful interference occurring1; and
Effectively allow stakeholders to address and manage harmful interference when it occurs.
Remainder of this document
The remainder of this document sets out 2degrees’ views in further detail:
Section 2 sets out specific suggestions to address each of the three issues highlighted above;
Section 3 summarises 2degrees’ initial responses to each of the options of the Workshop Brief
as well as options proposed by other stakeholders.
1
We note that avoiding harmful interference is not the equivalent of requiring no interference at all. Harmful interference
is specifically defined in the Act. As we note in section 3, MBIE should ensure this definition remains appropriate given
technology developments since the passing of the Act.
42 2degrees suggestions
This section sets out proposals to address key higher level considers of the Radiocommunications
Act that 2degrees have identified.
2.1 Proposal 1: Strengthen the engineer certification obligations
Objective: Clarify and strengthen the engineer certification requirements in the Act to ensure that
all stakeholders are clear on the obligations of the engineer in certifying licences and that all types
of harmful interference are considered
Engineer’s obligations
It was clear from the workshop that the Act lacks clarity in terms of the engineer’s obligations. This
includes compliance with the IRR/international standards during the certification process.
As set out in our initial submission we support the certification process and engineer’s
responsibilities being articulated independent of the responsibilities of the Registrar in the Act. We
consider this will provide greater clarity to the responsibilities under the Act and result in a more
consistent approach to assessments under the Act.
We understood from MBIE at the workshop that this is considered a drafting issue, however given
the importance of certification to the licencing process, and the role of the engineer (rather than the
Registrar) in ensuring the credibility of that certification, we present this as a separate option for the
MBIE’s consideration here.
We have also set out our concerns regarding the Act not placing any direct obligation on the
certifying engineer and the permissive language of section 25(5) and the IRR in detail in our initial
submission. To address both of these issues we propose an Option 6A for MBIE’s consideration.
Option 6A: Clarification of engineer certification obligations
There should be a specific section which clearly identifies what the certifying engineer should
consider and certify. This should be independent of the registrar’s responsibilities.
This could be either a new section or a modification of section 25A. For example by combining
matters certifying engineer must consider under s25A with matters that must be certified by the
engineer in s25(5) under the heading “duties of radio engineer certifying under section 25”.
Cumulative interference
The MBIE stated that it considers that when engineers certify licences in planned bands that they
inherently address the cumulative effects by taking into account the relevant ITU-R
recommendations and reports. However it was apparent from our attendance at the workshop that
this was not the case.
The impact of cumulative interference is likely to be a significant radio spectrum issue in the future
and should be addressed within the Radiocommunications Act.
The Act should clarify, for avoidance of doubt, that cumulative effects are expected to be considered
as part of the technical compatibility assessment, by inserting an obligation on the certifying radio
engineer to take into account cumulative interference into section 25A.
We note that this obligation need not be onerous on the engineer. For example, accompanying
guidance (for example in a PIB) could provide further detail regarding expectations on the engineer
where no cumulative interference effects are anticipated.
5Option 7B: Cumulative interference issues to be considered
Amend section 25A (or its equivalent) to clarify that cumulative effects are expected to be taken into
account.
Future services likely to be deployed
Nothing in the Act places an explicit obligation on the Engineer to certify that the licence will not
cause (or is not likely to cause) harmful interference when considering existing/intended uses of the
band, for example the anticipated launch of a new mobile network or launch of 3G services by an
established network.
It is not possible to consider all future potential changes in adjacent bands or usage. However, an
engineer should be required take into account likely technologies and band uses that are already
specified in IRR and national and international standards. This is consistent with the IRR (see for
example Article 3.3 which states:
Transmitting and receiving equipment intended to be used in a given part of the frequency spectrum should be
designed to take into account the technical characteristics of transmitting and receiving equipment likely to be
employed in neighbouring and other parts of the spectrum, provided that all technically and economically
justifiable measures have been taken to reduce the level of unwanted emission from the latter transmitting
equipment and to reduce the susceptibility of interference of the latter receiving equipment [emphasis added].
The lack of a clear obligation to take into account any technologies that are likely to be introduced in
the near future in adjacent bands under the current Act leads to considerable uncertainty and
investment risk for operators.
This is a particular issue for management rights holders, who may have purchased the management
right in the expectation that the spectrum could be deployed to roll out particular technologies likely
to be available in a short time horizon. For example, deployment of an incompatible technology such
as that deployed by Kordia in the 1098 band directly adjacent to a 3G band.
The Act should clarify, for avoidance of doubt, that the engineer should take into account future
services likely to be employed in the foreseeable future as part of the technical compatibility
assessment. PIBs could provide guidance on how this is expected to be carried out in practice, for
example by referencing IRR decisions/time horizons that should be considered.
A specific reference to key articles of the IRR (in the Act, or in PIBs) would provide greater
transparency and certainty to both engineers and other stakeholders as to their relevant obligations.
Listing the principle articles will help ensure they get more direct consideration by Engineers. It will
also protect Engineers because if they can show they have considered these principle articles it will
be challenging for adjoining spectrum users to dispute engineer certifications.
Notably, taking into account these aspects at the allocation stage/as part of MBIE band planning
processes does not address the issue. This is particularly the case with long term management rights.
Option 9B (2degrees): Future services as defined in the IRR/international standards to be
considered
Amend section 25A (or its equivalent) to ensure that the engineer will take into account
technologies and spectrum bands that are “likely to be employed” in the “reasonably foreseeable”
future, consistent with IRR.
6Implementation of Options 6A, 7A and 7B
To implement Option 6A, 7A and 7B we consider that a separate section that sets out the engineer’s
responsibilities should establish that:
The engineer must take into account items outlined in S25A; and
The engineer certifies that the licence will comply with the current S25(5) of the Act.
For example this could be along the lines of the following form (text changes in orange):
25A Duties of radio engineer certifying under section 25
A radio engineer issuing a certificate under section 25—
(a) must, before issuing the certificate, have regard to taken into account —
(i) the nature and characteristics of the rights described in the spectrum licence; and
(ii) the International Radio Regulations; and
(iii) the ITU-R reports and recommendations; and
(iv) Annex 10 of the Convention on International Civil Aviation; and
(v) the International Convention for the Safety of Life at Sea; and
(vi) the nature of the service proposed to be operated under the spectrum licence; and
(vii) any relevant reference standards issued by the Secretary;
(viii) future services that are likely to operate in adjacent band(s) that are specified in the IRR: and
(ix) impact of cumulative interference from the proposed service on services that are operating in adjacent
band(s) and services that are likely to operate in adjacent bands that are specified in the IRR: but
(b) must not, in considering whether to issue the certificate, have regard to the reception of radio waves by
inappropriate receivers.
25(5) 25B The radio engineer shall certify that, in the opinion of that engineer, the exercise of rights to which the licence
relates—
(a) will not endanger the functioning of any radio navigation service; and
(b) will not endanger the functioning of any radio service essential to the protection of life and property;
and
(c) will not cause harmful interference to rights conferred by registered spectrum or radio licences; and
(d) is technically compatible with services authorised to be operated under existing spectrum licences and
radio licences; and
(e) will sufficiently define the protection area and the nature and characteristics of the proposed
transmissions to enable subsequent spectrum licences and radio licences to be co-ordinated with the
exercise of rights to which the spectrum licence relates for the purpose of avoiding harmful interference.
(f) will not cause harmful interference to any future services that are specified in IRR
We note that these amendments are illustrative only. Legal drafting would require further
consideration and may also require flow on changes to other parts of the Act that are not directly
addressed here.
72.2 Proposal 2 : The arbitration process should be available when
there is harmful interference
Objective: The Act needs to ensure that the arbitration process (or a similar alternative) can be
used for all instances of harmful interference (not a narrow selection of interference scenarios).
This process should be able to be taken up where the lawfulness of emissions is contested and to
address disputes that may arise in relation to cumulative effects and likely future services
The arbitration process is not currently available where the lawfulness of emissions is contested.
Sections 106 to 109 specifically refer to lawful emissions.
Harmful interference in future could take the form of:
cumulative interference;
interference from devices operating under a GURL; and/or
interference with future services reasonably anticipated to be used within the bands (for
example mobile 3G services).
The Act should clarify that all such harmful interference can be addressed under the arbitration
process of the Act.
This requires amendments to s106 to 109A. 2degrees proposes an ‘Option 25A’ as follows:
Option 25A
Ensure that the arbitration process is available for all instances of harmful interference, including
where the lawfulness of emissions is contested and to address disputes that may arise in relation to
cumulative effects and likely future services by:
Removing references to lawful emissions (as for MBIE Option 25);
Amending section 109A (Matters relevant to arbitration) to include references to the impact of
cumulative interference and likely future services (consistent with the new section 25A).
For example this could be along the lines of the following form (text changes in orange):
106 Definitions for sections 108 to 109C
(1) For the purposes of sections 108 to 109C,— arbitral tribunal has the same meaning as in the Arbitration Act
1996 claimant means—
(a) the rightholder or holder of a radio licence claiming harmful interference in the protection area
of the claimant's licence; or
(b) the owner of a radionavigation receiver or a safety receiver claiming that harmful interference
with reception by that receiver would endanger the functioning of a radionavigation service or other safety
service
respondent means the person whose lawful transmission of radio waves is alleged to be causing harmful
interference in the claimant's protection area.
107 Sections 106 to 109C apply where transmissions not commenced
Where a radio licence or a spectrum licence has been granted and registered but lawful transmissions have not
commenced, and a rightholder or holder of a radio licence believes that lawful transmissions made in accordance with that
8licence are very likely to cause harmful interference in the protection area of that licence, the provisions of sections 106 to
109C apply as though the lawful transmissions had commenced.
108 Notice of harmful interference
(1) Where a respondent is lawfully transmitting radio waves under a registered spectrum licence or radio
licence, and those transmissions cause or contribute to harmful interference in the protection area of another registered
spectrum licence or radio licence, the claimant may serve on the respondent a notice concerning that interference.
109 Reference to arbitration by Secretary
(1) Where the Secretary receives a request under section 108(2A), (6), or (7), and the Secretary is satisfied
that—
(a) the alleged harmful interference is being caused in the protection area of a registered
spectrum licence or radio licence; and
(b) the transmissions allegedly causing or contributing to the harmful interference are being lawfully made
under a registered spectrum licence or radio licence; and
109A Matters relevant to arbitration
(1) Article 28(4) of Schedule 1 of the Arbitration Act 1996 does not apply to matters referred to arbitration
under section 108(5)(d) or section 109; instead, the arbitral tribunal's decision must seek to balance the
reasonable expectations, rights, and duties of the claimant and the respondent or other persons, without
compromising public safety, and having regard to—
(a) the costs and effects of possible alternative solutions; and
(b) the technical compatibility between the claimant's receiver and the respondent's transmitter as
determined by—
(i) the nature and characteristics of the rights described in the licences concerned; and
(ii) the International Radio Regulations; and
(iii) the ITU-R reports and recommendations; and
(iv) Annex 10 of the Convention on International Civil Aviation; and
(v) the International Convention for the Safety of Life at Sea; and
(vi) the nature of the service operated or proposed to be operated under any licences concerned; and
(vii) any relevant reference standards issued by the Secretary; and
(viii) future services that are likely to operate in adjacent band(s) that are specified in the IRR: and
(ix) impact of cumulative interference from the proposed service on services that are operating in
adjacent band(s) and services that are likely to operate in adjacent bands that are specified in the
IRR.
(c) which of the licences held by the parties to the dispute was registered or granted first; and
(d) the desirability of minimising disruption to existing services; and
(e) the terms of the licences concerned; and
(f) any other matters prescribed by regulations made under this Act or that the arbitral tribunal
considers relevant.
(1A) The arbitral tribunal must not have regard to the reception of radio waves by inappropriate receivers.
(2) Unless a person proceeds as a claimant in accordance with section 106(3), where the claimant is the holder
of a radio licence that does not specify an area as a protection area, the arbitral tribunal must determine, from
the technical details on the licence, whether the area considered by the claimant as the protection area for that
licence is the protection area.
Again, we note that these proposed amendments are illustrative only. Legal drafting would require
further consideration and may also require flow on changes to other parts of the Act that are not
directly addressed here.
92.3 Proposal 3 : Access to remedies
The Act needs to provide protection for all types of harmful interference, not just harmful
interference from co-channel emissions
Section 99 of the Act provides the right for spectrum licence holders not to receive harmful
interference from co-channel emissions but does not address interference from other types of
emissions.
Protection/remedies need to be provided against all types of harmful interference, for example,
including:
co-channel emissions;
out of band emissions; and
spurious emissions.
This requires amendments to s48, s99 and s102. 2degrees proposes an Option 32 as follows:
Option 32:
Ensure remedies are available for all types of harmful interference, not just co-channel interference,
by:
Removing references to co-channel emissions from section 48 and section 99 of the Act and
replacing these with a reference to ‘harmful interference’.
Amending section 102 of the Act consistent with the new section 25A. This will ensure that the
affected party has access to civil proceeding remedies if it so chooses.
For example this could be along the lines of the following form (text changes in orange, illustrative
only):
48 Creation of spectrum licence by manager
(1) Where a manager intends to reserve to himself or herself or to grant to any other person—
(a) the right to transmit on a frequency band, and the right to have no harmful interference from
co-channel emissions in the protection area on the frequency band within the range of frequencies
specified in the manager's record of management rights; or
(b) the right to transmit on a frequency band within the range of frequencies specified in the
manager's record of management rights; or
(c) the right to have no harmful interference interference from co-channel emissions in the
protection area on a frequency band within the range of frequencies specified in the manager's
record of management rights,—
that manager may execute for the purposes of registration a spectrum licence in a form prescribed for
spectrum licences granted or reserved under this section.
99 Rights conferred on rightholder by spectrum licence
(1) Every rightholder who has a spectrum licence to transmit radio waves and to receive no harmful
interference interference from co-channel emissions in a protection area has the right to transmit radio
waves and to receive no harmful interference interference from co-channel emissions in that protection area
in accordance with that licence while the rightholder's spectrum licence is in force and the rightholder is
complying with the requirements in section 101.
10(2) Every rightholder who has a spectrum licence to transmit radio waves has the right to transmit radio waves in
accordance with that spectrum licence while the rightholder's spectrum licence is in force and the rightholder is complying
with the requirements in section 101.
(3) Every rightholder who has a spectrum licence containing the right to receive no harmful interference from co-channel
emissions in a protection area has the right to receive no harmful interference from co-channel emissions in the protection
area in accordance with that spectrum licence while the rightholder's spectrum licence is in force and the rightholder is
complying with the requirements in section 101.
(4) If the rightholder complies with section 102, the right to transmit radio waves includes the right to transmit unwanted
emissions provided it complies with section 25 A.
102 Transmission of unwanted emissions
(1) No rightholder, in exercising rights under section 99, shall transmit unwanted emissions on any frequency within the
range of frequencies to which the unwanted emission limit specified in the spectrum licence applies, at a level greater than
is specified in the spectrum licence as the unwanted emission limit applying to that frequency that does not comply with
section 25A.
(2) No rightholder, in exercising rights under section 99, may transmit unwanted emissions on any frequency that is not
within the frequency band or the range of frequencies to which any unwanted emission limit specified in the spectrum
licence applies, at a level greater than the power floor applying to that frequency in a accordance with the record of
management rights relating to that frequency at the time the spectrum licence was registered.
(2) Every person who contravenes subsection (1) or subsection (2) shall be deemed not to be acting in accordance with the
person's rights as rightholder for the purposes of section 103.
113 2degrees’ comments on MBIE/stakeholder options
This section summarises 2degrees’ initial responses to each of the options of the Workshop Brief as
well as options proposed by other stakeholders.
As a general comment we note that many of the options in this section relate to operational detail
rather than whether the regulatory framework is appropriate to address the objectives of the Act.
Our responses in this section should be read in this context.
3.1 Spectrum licence certification
Option Description 2degrees position
Option 1: Extend the requirement on Support. It is useful to retain the engineering calculations beyond the
AREs to retain engineering seven year term.
calculations after a licence is The certifying engineer should be required to upload the calculations
registered for seven years to during the licencing process to ensure MBIE has a long term record.
the term of the licence
We do not consider this an onerous requirement.
Option 2: Add provisions to introduce Support. Significant capital investments, and their associated
liability of approved persons benefits, rely on the licencing process. The engineer’s certification is
for poor licence certification the only test to ensure harmful interference is not likely to arise
before transmission commences. As such, we consider engineers
should have liability under the Act for their work: ultimately the radio
engineer should be able to stand by what he/she does. This is likely to
provide them with greater discipline when making certification
decisions and is consistent with other engineering fields which place
direct liability on the engineers (for example civil engineers).
As we noted in our previous submission, engineers are able to
require an indemnity from the entity for whom they are certifying, to
limit their risk. To ensure that Engineers are encouraged to take care,
the Act could impose a limit on the level of indemnification
permitted.
At the same time, the matters engineers must consider when
certifying need to be strengthened and clearly stated so compliance
and liability can be better assessed. The changes we have proposed
(Option 6A) address this issue.
Without stronger and clearer requirements civil law is not an
effective fallback. Our initial submission further discussed the impact
of the permissive language of the Act and IRR.
While 2degrees supports increased auditing and training it does not
consider these alone will improve the certification.
Option 2A Define the parameters to be Support. 2degrees agrees that there is a need to better define
(Spark): used by radio engineers in certain parameters used in the Act.
calculations, including AFEL's, These should be defined in a formal document outside of the Act,
PL's, Power Floors, MPIS such as the PIBs. This document:
(terminology used by the
Should be referenced in the Act.
licence) etc and how these
can be used in sharing Needs to be managed and controlled/ regularly reviewed.
calculations. We do not consider that professional development training for
engineers is sufficient to address this issue.
12Option Description 2degrees position
Option 2B The engineer should certify As set out in our Option 6A, we consider that there should be a
(Spark): that the licence is compliant specific section of the Act which clearly identifies what the certifying
with the AFEL’s, PLS etc engineer should consider and certify.
provided there is an agreed Further complying with AFEL’s PL’s etc will not avoid significant
definition and methodology harmful interference. We have noted previously that the AFEL’s, PL’s
somewhere in the regulatory are arbitrary limits set at such high levels that signals at these levels
framework described in will cause serious harmful interference to modern wireless systems.
paragraph 9.
In practice, the Registrar does not carry out their own assessment
and is reliant on the engineer carrying out their duties to a
satisfactory standard. The Registrar does not have to be a radio
engineer and in practical terms only checks whether the correct
boxes have been ticked.
We do not consider this duplicates the existing role of the Registrar.
Option 3: Further define ‘technically Support further consideration. We consider this will support
compatible’ in the Act improved licencing processes. Technical compatibility is not a defined
term in the Act. Providing a definition consistent with IRR will provide
greater clarity to all stakeholders involved.
Option 4: Incorporate some of the key Support. IRR (as well as ITU-R standards) are key in assessing
requirements of the IRR as technical compatibility. Incorporating the key principles (e.g. Article
principles in the Act 3.3) into the Act provides greater certainty and clarity to
stakeholders.
While the Act requires the engineer to consider IRR and ITU-R
standards when assessing the technical compatibility of proposed
licences, this is not a mandatory requirement as the engineer only
needs to “have regard to” these standards. For this reason, we
consider that the Act should introduce wording that makes it a
requirement to comply with IRR/ITU-R standards.
For greater clarity, we support the MBIE identifying specific IRR or
ITU-R requirements that engineers are expected to take into account.
In practice, the key principles of the IRR do not change with each
WRC, the key changes being to the frequency table.
Please also see our initial submission.
Option 5: Provide guidance on the IRR Support. 2degrees supports further guidance and clarification being
and require AREs to have given to engineers when certifying.
regard to the guidance when This could include reference to specific IRR articles and/or PIBs,
certifying a licence potentially including a PIB specific to private management rights.
The technical guidance should be separate to the Act, for example as
part of MBIE’s publications such as PIBs.
Option 5A) Provide guidance on how to Support further consideration.
(Spark): give effect to IRRs, by either: We consider that detailed guidance is not appropriate within the Act.
i. Reference to the However support the inclusion of principles in the Act and
appropriate ITU-R development of such guidance on the certification process,
recommendation assessment of technical compatibility and the IRR, ITU-R documents,
(without reference to the and international standards outside the Act.
interference to noise The Act should reference this document.
ratio (I/N); or
ii. Reference to I/N
parameters such as I/N
threshold values.
Option 6: 1. Professional Support. See our responses above and previous submission.
development training However do not consider this alone satisfactory to deal with existing
for AREs issues.
2. Provide guidance Professional development training will promote good practice and
outside the Act around consistent approaches.
the certification process Development of such training will be at least in part funded by the
and assessment of attendees of such training.
technical compatibility
and the IRR Guidance could take the form of a PIB or similar, which is referenced
13Option Description 2degrees position
in the Act.
Option 6A: There should be a specific The certification process should be common to both spectrum and
(2degrees) section which clearly radio licences.
identifies what the certifying This could be either a new section or a modification of section 25A.
engineer should consider and For example by combining matters certifying engineer must consider
certify. under s25A with matters that must be certified by the engineer in
s25(5) under the heading “duties of radio engineer certifying under
section 25”.
See section 2.1 for further details.
Option 7: Include cumulative effects in Support. See our option 7B.
the matters to be considered It is unclear why the MBIE would not consider that an engineer
as part of the assessment of providing a licence should not consider potential cumulative
technical compatibility during interference effects: consideration at the frequency planning stage of
the licensing stage long term rights does not address the issue.
We are also surprised by MBIE’s stance given the increasing
prevalence of low power consumer devices. The impact of
cumulative interference is likely to be a significant radio spectrum
issue in the future and should be catered for in the
Radiocommunications Act.
It was clear from the workshop that there is a lack of clarity on
requirements regarding taking into account the IRR and relevant ITU-
R recommendations, meaning this also does not address concerns.
PIBs could provide guidance on how this is expected to be carried
out in practice.
Option 7A Consider a move to the I/N Support. It is important that cumulative effects are considered for
(Spark): ratio based approach to both management rights and the radio licencing regime.
consider the effect of 2degrees support further consideration of a shift to the I/N concept.
cumulative interference in This recognises that the current AFEL/PL compliance regime does not
license creation. allow cumulative effects to be considered.
If this is adopted, the Act should only make a high level reference
and the Act should not specify values.
PIBs could provide guidance on how this is expected to be carried
out in practice. Detailed calculations may not be required for
instances where the engineer certifies that cumulative effects are
unlikely to be a cause for concern.
Option 7B Insert obligation on the This will ensure that potential cumulative effects are taken into
(2degrees) certifying radio engineer to account by the engineer.
take into account cumulative See section 2.1 for further detail.
interference.
Option 8: Require planned licences to We support the consideration of planned licences.
be considered as part of the MBIE needs to put in place mechanisms to review the misuse of this
licence engineering process provision as a means for parties to block others using spectrum. This
and assessment of technical is more relevant to MBIE’s competition review.
compatibility
Option 9: Require consideration of It is not possible to consider all future potential changes. However,
future uses during licence radio engineers should be required to take into account likely
engineering technologies and band uses that are specified in IRR and national and
international standards.
Our proposal to strengthen the certification process includes sub-
clauses that will require the certifying engineer to consider future
uses. See Option 9B.
Option 9A Consider mechanisms to This appears to be more relevant to the competition review of the
(Spark): discourage strategic Radiocommunications Act rather than the question of whether/how
allocation of spectrum by, for to consider future uses during licence engineering from an
example, requiring a licence interference management perspective.
to be re-issued if it is not
used for a certain period
14Option Description 2degrees position
Option 9B Insert mandatory obligation Support. PIBs could provide guidance on how this is expected to be
(2degrees) on the certifying radio carried out in practice, for example by referencing IRR decisions/time
engineer to take into account horizons that should be considered.
future services likely to Consideration at the band planning stage does not address the issue
operate in adjacent bands over time, particularly for long term licences.
that are specified in the
See section 2.1 for further detail.
IRR/international standards.
Option 10: Set (and enforce) tolerance We do not consider this is an issue under the management rights
limits on over-recording regime.
license parameters This is likely to be operationally difficult to manage for spectrum
licences, given changes/upgrades are part of the business-as-usual
capacity expansion process, as well as day-to-day optimisation/site
configuration changes.
There may be some benefits in placing such limits on radio licences.
Such limits could avoid/improve parties trying to hoard spectrum
under the radio licence regime. However, this needs to be balanced
with putting restrictions on efficient management of radio licences.
Option 10A Require licenses to list While we consider that additional information regarding
(Spark): information that would compatibility on a licence application could be helpful, for example
enable licensees to complete emissions masks and receiver characteristics, there is also a risk of
interference assessment and substantial compliance cost increases. In many cases, we do not think
ensure that their licence this would be practical to implement.
complies with the AFEL/PL We also caution against overemphasis on artificially set parameters,
and any other requirements such as the power floors, UEL, and AFEL, which do not ensure that
etc. harmful interference will not occur.
Option 11: Increase scrutiny of licence We do not consider that increased licence scrutiny will address
applications at the licensing issues of harmful interference.
stage (over-recording) We consider this an operational issue that should be addressed
outside the Act.
Option 12: Require regular audits or 2degrees considers monitoring and auditing is an operational issue
additional monitoring of that should be addressed outside the Act.
licences to ensure licence
parameters appropriately
reflect real transmissions
Option 13: Add reference bandwidths to The Act should specify high level issues and should not specify
all power related parameters technical details. The reference bandwidth varies depending on
frequency band and service. These are defined in ITU-R standard SM
329 and are regularly updated. If the MBIE is to specify measurement
bandwidths then it would need to specify the bandwidths for all
scenarios and regularly update them. We do not consider it practical
to specify and update the Act in a timely manner.
We would recommend that these are better placed in a PIB, which
can be more readily amended.
Notably, given the long term nature of management rights, the
technology relevant to specific bands may evolve significantly within
the term of those rights, so it is important that there is a mechanism
to modify any conditions specified in these rights.
Option 13A Add reference bandwidths to We support specifying reference bandwidths, however as per above,
(Spark) all signal level related this should not be carried out within the Act.
parameters
Option The term power floor Is Support. 2degrees supports the removal of the power floor: MBIE is
13B/16A anomalous and should be aware licences granted under the power floor of a cellular
(Spark) removed from the regulatory management right have the potential to cause significant
framework described in interference.
paragraph 9. Remove power We would be concerned if setting UELs by specific reference to
floor in respect of standards e.g. ITU-R SM329 cemented the position of UEL when this
management right under the does not determine the level of harmful interference.
Act.
15Option Description 2degrees position
Option 14: Establish the role of the site We do not consider this is necessary. Site specific issues are
manager and their operational and should be resolved between the parties involved.
responsibilities in the Act
Option 15: Remove the role of the Support the removal of the power floor. This does not determine
power floor to management whether harmful interference is likely to occur, particularly where
unwanted emissions, and radio equipment technologies are becoming increasingly sensitive.
retain the power floor only to 2degrees does not believe that a mechanism similar to the power
delineate the boundary floor can be used to manage unwanted emissions. Radio equipment
between the radio licensing is getting increasingly sensitive and it is not going to be possible to
and management rights manage unwanted emissions and ultimately harmful interference by
regime and set the minimum introducing an arbitrary limit.
value for the protection limit
2degrees continues to stress the view that the only way to avoid
within a management right.
harmful interference is through a tighter certification process (see our
option 6A).
Option 16: Require unwanted emissions The IRR already requires emissions to comply with industry best
to reduce in power in practice and relevant standards.
accordance with industry If this is not occurring, the Act should clarify these obligations to
best practice and the comply with the IRR.
relevant standard for the
We do not believe a separate provision needs to be added as
equipment /service being
proposed.
provided
Option 17: Add an MPIS parameter for If there is a greater obligation on the engineer to ensure against
co-channel and adjacent harmful interference, as suggested by 2degrees, then a focus on
channel signals elements such as MPIS, AFEL, UEL and PL becomes less relevant.
Simply extending the MPIS to adjacent channel emission does not
provide protection from harmful interference. Harmful interference
is not limited to co-channel and adjacent channel signals. We
therefore do not consider this to be a useful extension. Any extension
need to cover all types of interference mechanisms. This is why we
consider a general obligation to avoid harmful interference is needed.
Option 18: Replace MPIS with a While 2degrees sees the potential value in a parameter like I/N we
different parameter such as consider that if introduced, it should be introduced as another option
I/N available to the engineer to specify rather than in place of MPIS.
Option 18A Replace MPIS with a different 2degrees supports further consideration of I/N being used in
(Spark): parameter such as an I/N addition to MPIS, but values should not be specified in the Act.
threshold value, that sets the
maximum interference level
that a receiver can be
subjected too, beyond which
the performance degradation
may not be acceptable.
Option 19: Make the MPIS parameter We do not believe that this proposal will have any significant impact.
‘optional’ in Form 7
Option 20: Include receiver performance We support the inclusion of receiver performance as one of the
on licences considerations in the certification process. However, we do not
support the Act specifying receiver performance.
We consider this is best addressed by referring to the relevant
standards, for example 3GPP. There are a large amount of receivers
operating on radio networks (i.e. handsets as well as base stations)
and this is the only way of practically managing this requirement.
Tolerance limits for receivers should be handled by reference to
international standards. Technologies are continually changing,
which means tolerance limits would have to be regularly updated.
We do not consider it practical to include this within the Act.
Option 20A Define receiver performance 2degrees supports bringing receiver performance into consideration,
(Spark): by reference to receiver however the details should not be specified in the Act.
parameters such as adjacent As stated in Option 20 any detailed receiver performance should be
channel selectivity and incorporated by reference to standards or relevant MBIE documents.
receiver blocking.
16Option Description 2degrees position
Option 20B Ensure legislation/regulations Mobile operators have previously raised concerns with MBIE
(2degrees) can address unauthorised regarding interference from unlicenced “mobile repeaters”, which
importation and distribution can cause substantial interference with licenced mobile network
of unlicensed equipment operations.
In Australia, the Radiocommunications Regulations 1993 were
strengthened as of August 2013 to restrict the supply of mobile
repeaters and impose record-keeping requirements on the suppliers
of mobile repeaters.
In NZ MBIE takes action after harmful interference has already
occurred. The onus of proof is on the affected party and collecting the
required level of evidence for a court of law requires a time
consuming and costly process
As noted in our previous submission, we understand that MBIE was
considering whether the New Zealand Regulations could be
appropriately modified to impose similar conditions on NZ suppliers
as in Australia, and whether a return of sales information similar to
the Australian requirement can be prescribed. It is not clear of the
outcome of MBIE’s review and we look forward to an update from
MBIE. This option ensures that MBIE can take further action, for
example similar to in Australia, under the Radiocommunications Act.
Option 21: Reverse the policy decision to We consider there is merit in giving this proposal further
not apply Reference consideration.
Standards issued under
section 133 to the
management rights regime
3.2 When interference occurs
Option Description 2degrees position
Option 22: Amend the definition of 2degrees agrees with MBIE that the definition of harmful
harmful interference interference is not the key issue of the Act review, however we do
consider it is important that the definition remains relevant given
market and technological developments.
The current definition of harmful interference was developed
primarily based on voice and low-rate data communication.
If MBIE decides not to update this definition it must satisfy itself
that the current definition remains appropriate to address harmful
interference issues in a world where high speed data
communications, including LTE are increasingly prevalent.
We support amendments to the definition of “harmful
interference” to clarify that this covers modern wireless systems.
Option 23: Add a general presumption in This option arbitrarily assumes that the transmitter is the offending
the Act that unwanted party. We do not consider this is warranted.
emissions causing harmful As the MBIE acknowledges, unwanted emissions could be the
interference should be result of receiver performance..
removed by the transmitter.
Option 23A Consider remedies available Remedies available must consider who is at fault.
(Spark) under the Act for resolving Consider further guidance on quantifying harmful interference in
harmful interference to ensure PIBs.
receivers and transmitters have
equivalent access to remedies
Option 24: Enable the manager to initiate Support. Management rights owners should be able to deal with
an injunction under section 118 interference management in their private management right(s),
for unlawful use of their including through the injunction process.
spectrum Further, 2degrees considers an injunction should be available to all
parties experiencing harmful interference, whether or not this has
been found to contravene section 103. As we discussed in our
17Option Description 2degrees position
previous submission, this may be especially challenging given the
permissive language used in the IRR and sections 25(5) and 25a of
the Act.
Option 25: Remove references to the Support. The arbitration process should be available for all
arbitration process being for disputes. 2degrees provided its views on why the arbitration
lawful emissions only process has not been used in our previous submissions.
If the MBIE does not adopt this option it needs to consider how the
current issues will be addressed for those cases where the
lawfulness of emissions is in dispute.
Option 25A Removing references to This ensures that the arbitration process is available for all
(2degrees): lawful emissions (as for instances of harmful interference, including where the lawfulness of
MBIE Option 25); emissions is contested and to address disputes that may arise in
Amending section 109A relation to cumulative effects and likely future services (reasonably
(Matters relevant to foreseeable we reference to the IRR).
arbitration) to include See section 2.2 for further detail.
references to the impact
of cumulative interference
and likely future services
(consistent with the new
section 25A).
Option 26: Specify timeframes for each Support. The timeframes could be based on the severity or impact
step in the arbitration process, to the service.
including those steps covered The Chief executive should be bound by process and timeframes to
by the Arbitration Act such as provide accountability of action or non-action.
appointment of arbiters and
In addition, we consider there is merit in the MBIE facilitating the
timeframes to reach resolution
timely appointment of the arbitrator, by the Chief Executive
maintaining and publishing a list of “approved” arbitrators from
which the arbitrator must be chosen.
Option 27: Provide for interim measures Support the ability to access interim measures.
prior to the final resolution of a If this is considered duplication, consider a cross reference to the
dispute Arbitration Act to make it clear such remedies are intended to be
available.
Option 28: Reduce the prominence of the We consider that strengthening requirements to properly consider
first in time benefit in a technical compatibility with equipment likely to be employed in
disputes process neighbouring parts of the spectrum (consistent with Article 3.3 of
the IRR) would reduce the importance of first-in-time in relation to
interference issues.
Option 29: Provide for a process to resolve Support. The Act framework needs to address this issue, which has
disputes involving interference the potential to become more significant over time.
under a GURL, GUSL or licence For example, increasingly mass market devices such as Wi-Fi,
exempt transmissions cordless phones and other short range devices are operating under
general user radio licences (GURLs). These have the potential to
cause interference in adjacent bands, impacting both existing and
potential uses of those bands.
GURLs are not subject to the same checks as spectrum licence
certification. Under section 12 of the Radio Regulations the matters
the Chief Executive must take into account include whether the
GURL is technically compatible with existing spectrum and radio
licences. There is no requirement to comply with IRR or national and
international and national standards.
As set out in our initial submission, 2degrees considers that the Act
should align the tests for GURLs with those for spectrum licences,
for example by inserting a clause: “In issuing GURLs, the Chief
Executive must ensure that the Engineer issuing the certification
takes into account requirements outlined in S25A and certifies that
the GURL meets requirements in S25(5).”
2degrees is of the view remedies available under the Act should
apply to all harmful interference cases.
18Option Description 2degrees position
Judicial review of decisions is not a substitute. This includes
because judicial review focusses on process rather than merits of
the decision. There are also timing considerations.
The MBIE needs to be clear how future issues that arise involving
interference under a GURL, GUSL or licence exempt transmission
are able to be addressed by rights holders. Such interference might
not immediately arise following an MBIE decision to licence exempt.
Option 30: Increase the involvement of the Support to some extent.
Ministry in resolving In general, management rights owners should deal with
interference disputes (or interference management in their private management right(s).
potential disputes), for
However, there are many instances where involvement of MBIE is
example by
likely to be helpful in achieving a faster, cost effective resolution
• providing determinations on and we support such involvement. For example, a large number of
whether a transmission is interference cases are from unsuspecting owners of transmitters
lawful or not, who do not realise they are infringing the law. MBIE’s involvement
• providing a mediation service is likely to be key in addressing such instances.
similar to that for We also support the MBIE establishing a list of approved
employment matters, arbitrators/arbiters.
• establishing an arbitration
It may be appropriate that some of these services such as
panel or list of approved
determinations or a mediation service are outside MBIE.
arbiters to speed up the
arbitration process.
Option 31: Add an express right of appeal Support.
on the decisions of the Ministry The specified matters should include GURL and GUSL licence issues
on specified matters as well as any interference assessment related to band planning.
Option 32: Ensure remedies are available Removing references to co-channel emissions from section 48 and
for all types of harmful section 99 of the Act and replacing these with a reference to
interference, not just co- 'harmful interference'.
channel interference Amending section 102 of the Act consistent with the new section
25A. This will ensure that the affected party has access to civil
proceeding remedies if it so chooses.
See section 2.3 for further detail.
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