Review of the Radiocommunications Act 1989:

Transcription

1 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 15 July 2015

2 Contents 1 Introduction High Level Comments Key issues that must be addressed as part of the Act Review degrees suggestions Proposal 1: Strengthen the engineer certification obligations Proposal 2 : The arbitration process should be available when there is harmful interference Proposal 3 : Access to remedies degrees comments on MBIE/stakeholder options Spectrum licence certification When interference occurs

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4 1 Introduction Thank you for the opportunity to provide further comment on the review of the Radiocommunications Act 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

5 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 occurring 1 ; 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. 4

6 2 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. 5

7 Option 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. 6

8 Implementation 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. 7

9 2.2 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 8

10 licence 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. 9

11 2.3 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

12 (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

13 3 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: Option 2: Option 2A (Spark): Extend the requirement on AREs to retain engineering calculations after a licence is registered for seven years to the term of the licence Add provisions to introduce liability of approved persons for poor licence certification Define the parameters to be used by radio engineers in calculations, including AFEL's, PL's, Power Floors, MPIS (terminology used by the licence) etc and how these can be used in sharing calculations. Support. It is useful to retain the engineering calculations beyond the seven year term. The certifying engineer should be required to upload the calculations during the licencing process to ensure MBIE has a long term record. We do not consider this an onerous requirement. Support. Significant capital investments, and their associated benefits, rely on the licencing process. The engineer s certification is 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. Support. 2degrees agrees that there is a need to better define certain parameters used in the Act. These should be defined in a formal document outside of the Act, such as the PIBs. This document: Should be referenced in the Act. Needs to be managed and controlled/ regularly reviewed. We do not consider that professional development training for engineers is sufficient to address this issue. 12

14 Option Description 2degrees position Option 2B (Spark): Option 3: Option 4: Option 5: Option 5A) (Spark): The engineer should certify that the licence is compliant with the AFEL s, PLS etc provided there is an agreed definition and methodology somewhere in the regulatory framework described in paragraph 9. Further define technically compatible in the Act Incorporate some of the key requirements of the IRR as principles in the Act Provide guidance on the IRR and require AREs to have regard to the guidance when certifying a licence Provide guidance on how to give effect to IRRs, by either: i. Reference to the appropriate ITU-R recommendation (without reference to the interference to noise ratio (I/N); or ii. Reference to I/N parameters such as I/N threshold values. Option 6: 1. Professional development training for AREs 2. Provide guidance outside the Act around the certification process and assessment of technical compatibility and the IRR As set out in our Option 6A, we consider that there should be a specific section of the Act which clearly identifies what the certifying engineer should consider and certify. Further complying with AFEL s PL s etc will not avoid significant harmful interference. We have noted previously that the AFEL s, PL s are arbitrary limits set at such high levels that signals at these levels will cause serious harmful interference to modern wireless systems. 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. Support further consideration. We consider this will support 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. Support. IRR (as well as ITU-R standards) are key in assessing technical compatibility. Incorporating the key principles (e.g. Article 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. Support. 2degrees supports further guidance and clarification being given to engineers when certifying. This could include reference to specific IRR articles and/or PIBs, 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. Support further consideration. We consider that detailed guidance is not appropriate within the Act. However support the inclusion of principles in the Act and development of such guidance on the certification process, assessment of technical compatibility and the IRR, ITU-R documents, and international standards outside the Act. The Act should reference this document. Support. See our responses above and previous submission. However do not consider this alone satisfactory to deal with existing issues. Professional development training will promote good practice and consistent approaches. Development of such training will be at least in part funded by the attendees of such training. Guidance could take the form of a PIB or similar, which is referenced 13

15 Option Description 2degrees position Option 6A: (2degrees) Option 7: Option 7A (Spark): Option 7B (2degrees) Option 8: Option 9: Option 9A (Spark): There should be a specific section which clearly identifies what the certifying engineer should consider and certify. Include cumulative effects in the matters to be considered as part of the assessment of technical compatibility during the licensing stage Consider a move to the I/N ratio based approach to consider the effect of cumulative interference in license creation. Insert obligation on the certifying radio engineer to take into account cumulative interference. Require planned licences to be considered as part of the licence engineering process and assessment of technical compatibility Require consideration of future uses during licence engineering Consider mechanisms to discourage strategic allocation of spectrum by, for example, requiring a licence to be re-issued if it is not used for a certain period in the Act. The certification process should be common to both spectrum and radio licences. 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. See section 2.1 for further details. Support. See our option 7B. It is unclear why the MBIE would not consider that an engineer providing a licence should not consider potential cumulative interference effects: consideration at the frequency planning stage of 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. Support. It is important that cumulative effects are considered for both management rights and the radio licencing regime. 2degrees support further consideration of a shift to the I/N concept. This recognises that the current AFEL/PL compliance regime does not 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. This will ensure that potential cumulative effects are taken into account by the engineer. See section 2.1 for further detail. We support the consideration of planned licences. MBIE needs to put in place mechanisms to review the misuse of this provision as a means for parties to block others using spectrum. This is more relevant to MBIE s competition review. It is not possible to consider all future potential changes. However, radio engineers should be required to take into account likely technologies and band uses that are specified in IRR and national and international standards. Our proposal to strengthen the certification process includes subclauses that will require the certifying engineer to consider future uses. See Option 9B. This appears to be more relevant to the competition review of the Radiocommunications Act rather than the question of whether/how to consider future uses during licence engineering from an interference management perspective. 14

16 Option Description 2degrees position Option 9B (2degrees) Option 10: Option 10A (Spark): Option 11: Option 12: Option 13: Option 13A (Spark) Option 13B/16A (Spark) Insert mandatory obligation on the certifying radio engineer to take into account future services likely to operate in adjacent bands that are specified in the IRR/international standards. Set (and enforce) tolerance limits on over-recording license parameters Require licenses to list information that would enable licensees to complete interference assessment and ensure that their licence complies with the AFEL/PL and any other requirements etc. Increase scrutiny of licence applications at the licensing stage (over-recording) Require regular audits or additional monitoring of licences to ensure licence parameters appropriately reflect real transmissions Add reference bandwidths to all power related parameters Add reference bandwidths to all signal level related parameters The term power floor Is anomalous and should be removed from the regulatory framework described in paragraph 9. Remove power floor in respect of management right under the Act. Support. 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. Consideration at the band planning stage does not address the issue over time, particularly for long term licences. See section 2.1 for further detail. We do not consider this is an issue under the management rights regime. 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. While we consider that additional information regarding compatibility on a licence application could be helpful, for example emissions masks and receiver characteristics, there is also a risk of substantial compliance cost increases. In many cases, we do not think this would be practical to implement. We also caution against overemphasis on artificially set parameters, such as the power floors, UEL, and AFEL, which do not ensure that harmful interference will not occur. We do not consider that increased licence scrutiny will address issues of harmful interference. We consider this an operational issue that should be addressed outside the Act. 2degrees considers monitoring and auditing is an operational issue that should be addressed outside the Act. The Act should specify high level issues and should not specify 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. We support specifying reference bandwidths, however as per above, this should not be carried out within the Act. Support. 2degrees supports the removal of the power floor: MBIE is aware licences granted under the power floor of a cellular management right have the potential to cause significant interference. We would be concerned if setting UELs by specific reference to standards e.g. ITU-R SM329 cemented the position of UEL when this does not determine the level of harmful interference. 15

17 Option Description 2degrees position Option 14: Option 15: Option 16: Option 17: Option 18: Option 18A (Spark): Option 19: Option 20: Option 20A (Spark): Establish the role of the site manager and their responsibilities in the Act Remove the role of the power floor to management unwanted emissions, and retain the power floor only to delineate the boundary between the radio licensing and management rights regime and set the minimum value for the protection limit within a management right. Require unwanted emissions to reduce in power in accordance with industry best practice and the relevant standard for the equipment /service being provided Add an MPIS parameter for co-channel and adjacent channel signals Replace MPIS with a different parameter such as I/N Replace MPIS with a different parameter such as an I/N threshold value, that sets the maximum interference level that a receiver can be subjected too, beyond which the performance degradation may not be acceptable. Make the MPIS parameter optional in Form 7 Include receiver performance on licences Define receiver performance by reference to receiver parameters such as adjacent channel selectivity and receiver blocking. We do not consider this is necessary. Site specific issues are operational and should be resolved between the parties involved. Support the removal of the power floor. This does not determine whether harmful interference is likely to occur, particularly where radio equipment technologies are becoming increasingly sensitive. 2degrees does not believe that a mechanism similar to the power floor can be used to manage unwanted emissions. Radio equipment is getting increasingly sensitive and it is not going to be possible to manage unwanted emissions and ultimately harmful interference by introducing an arbitrary limit. 2degrees continues to stress the view that the only way to avoid harmful interference is through a tighter certification process (see our option 6A). The IRR already requires emissions to comply with industry best practice and relevant standards. If this is not occurring, the Act should clarify these obligations to comply with the IRR. We do not believe a separate provision needs to be added as proposed. If there is a greater obligation on the engineer to ensure against harmful interference, as suggested by 2degrees, then a focus on 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. While 2degrees sees the potential value in a parameter like I/N we consider that if introduced, it should be introduced as another option available to the engineer to specify rather than in place of MPIS. 2degrees supports further consideration of I/N being used in addition to MPIS, but values should not be specified in the Act. We do not believe that this proposal will have any significant impact. We support the inclusion of receiver performance as one of the 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. 2degrees supports bringing receiver performance into consideration, however the details should not be specified in the Act. As stated in Option 20 any detailed receiver performance should be incorporated by reference to standards or relevant MBIE documents. 16

18 Option Description 2degrees position Option 20B (2degrees) Option 21: Ensure legislation/regulations can address unauthorised importation and distribution of unlicensed equipment Reverse the policy decision to not apply Reference Standards issued under section 133 to the management rights regime Mobile operators have previously raised concerns with MBIE regarding interference from unlicenced mobile repeaters, which can cause substantial interference with licenced mobile network 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. We consider there is merit in giving this proposal further consideration. 3.2 When interference occurs Option Description 2degrees position Option 22: Option 23: Option 23A (Spark) Option 24: Amend the definition of harmful interference Add a general presumption in the Act that unwanted emissions causing harmful interference should be removed by the transmitter. Consider remedies available under the Act for resolving harmful interference to ensure receivers and transmitters have equivalent access to remedies Enable the manager to initiate an injunction under section 118 for unlawful use of their spectrum 2degrees agrees with MBIE that the definition of harmful 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. This option arbitrarily assumes that the transmitter is the offending party. We do not consider this is warranted. As the MBIE acknowledges, unwanted emissions could be the result of receiver performance.. Remedies available must consider who is at fault. Consider further guidance on quantifying harmful interference in PIBs. Support. Management rights owners should be able to deal with interference management in their private management right(s), including through the injunction process. 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 17

19 Option Description 2degrees position Option 25: Option 25A (2degrees): Option 26: Option 27: Option 28: Option 29: Remove references to the arbitration process being for lawful emissions only 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). Specify timeframes for each step in the arbitration process, including those steps covered by the Arbitration Act such as appointment of arbiters and timeframes to reach resolution Provide for interim measures prior to the final resolution of a dispute Reduce the prominence of the first in time benefit in a disputes process Provide for a process to resolve disputes involving interference under a GURL, GUSL or licence exempt transmissions previous submission, this may be especially challenging given the permissive language used in the IRR and sections 25(5) and 25a of the Act. Support. The arbitration process should be available for all disputes. 2degrees provided its views on why the arbitration 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. This ensures 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 (reasonably foreseeable we reference to the IRR). See section 2.2 for further detail. Support. The timeframes could be based on the severity or impact to the service. The Chief executive should be bound by process and timeframes to provide accountability of action or non-action. In addition, we consider there is merit in the MBIE facilitating the timely appointment of the arbitrator, by the Chief Executive maintaining and publishing a list of approved arbitrators from which the arbitrator must be chosen. Support the ability to access interim measures. If this is considered duplication, consider a cross reference to the Arbitration Act to make it clear such remedies are intended to be available. We consider that strengthening requirements to properly consider technical compatibility with equipment likely to be employed in 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. Support. The Act framework needs to address this issue, which has the potential to become more significant over time. For example, increasingly mass market devices such as Wi-Fi, 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. 18

20 Option Description 2degrees position Option 30: Option 31: Option 32: Increase the involvement of the Ministry in resolving interference disputes (or potential disputes), for example by providing determinations on whether a transmission is lawful or not, providing a mediation service similar to that for employment matters, establishing an arbitration panel or list of approved arbiters to speed up the arbitration process. Add an express right of appeal on the decisions of the Ministry on specified matters Ensure remedies are available for all types of harmful interference, not just cochannel interference 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. Support to some extent. In general, management rights owners should deal with interference management in their private management right(s). However, there are many instances where involvement of MBIE is likely to be helpful in achieving a faster, cost effective resolution and we support such involvement. For example, a large number of interference cases are from unsuspecting owners of transmitters who do not realise they are infringing the law. MBIE s involvement is likely to be key in addressing such instances. We also support the MBIE establishing a list of approved arbitrators/arbiters. It may be appropriate that some of these services such as determinations or a mediation service are outside MBIE. Support. The specified matters should include GURL and GUSL licence issues as well as any interference assessment related to band planning. 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. See section 2.3 for further detail. 19