Radiocommunications (Spectrum Licence Limits—850/900 MHz Band) Direction 2021

This Direction requires the Australian Communications and Media Authority (ACMA) to design allocation procedures for spectrum licences in the 850/900 MHz band that include numerical limits on how much spectrum any one person or specified groups of persons may hold through allocation under Subdivision B of Division 1 of Part 3.2 of the Radiocommunications Act 1992. The Direction is made under subsection 60(10) of the Act (see s 3) and instructs ACMA to impose the limits “in accordance with sections 6 and 7” of the instrument (see s 5).

Mechanically, the Direction does three things.

• It directs ACMA to ensure allocation procedures implementing the re‑allocation of the 850/900 MHz band (the re‑allocation declaration) include spectrum quantity caps for particular bands and areas (s 5; s 6; s 7).
• It prescribes a set of discrete set‑aside and cap amounts that must be reflected in ACMA’s allocation procedures for the “relevant bands” in both the major population area and the regional area, depending on which of two named carriers elect to take up a set‑aside (s 6 and schedule table).
• It imposes an overall cap on holdings in the sub‑1 GHz band for any person or “relevant group of persons”, set at 82 MHz in the major population area and 92 MHz in the regional area, with an express transitional treatment for small pre‑existing licences (s 7).

The Direction does not itself allocate licences, nor does it create criminal offences or administrative penalties within its text. Instead it constrains the content of allocation procedures that ACMA must produce under s 60(1) of the Act (s 5). The defined terms that drive application and measurement include the “800 MHz band”, the “relevant bands” (895-915 MHz and 940-960 MHz), the “sub‑1 GHz band”, “major population area”, “regional area”, “associate”, “relevant group of persons”, “marketing plan” and the HCIS Population Data Document (see s 4). The table in s 6 prescribes precise MHz amounts that members of different classes “may, in total, use” in the relevant bands for each relevant area depending on electoral choices by Optus Mobile Pty Limited and TPG Telecom Limited.

The mechanism imposes limits at the point of allocation by requiring ACMA’s allocation procedures to limit the aggregate of parts of spectrum that may be used by one person or by specified groups as a result of allocations under the Act (s 5(1)). The Direction therefore operates through the administrative allocation rules ACMA will adopt, not by directly altering licence instrument wording in this Direction. The allocation procedures must define how elections to take up set‑asides are made and how registrants’ spectrum use will be counted toward the caps (see s 6(2)).

The Direction therefore changes the rules of the game for the re‑allocation exercise: ACMA will be obliged to implement set‑asides and per‑person and per‑group caps in its allocation paperwork and processes, using the definitions and measurement conventions in the Direction to determine who can acquire how much spectrum in each area and band.

The Direction relies on several definitional and structural concepts that determine its scope and operation. Key concepts are defined in s 4 and are the instruments used to measure and allocate limits.

• Relevant bands and 800 MHz band: The instrument distinguishes the “800 MHz band” (825-845 MHz and 870-890 MHz) and the “relevant bands” (895-915 MHz and 940-960 MHz) (s 4). The Direction applies limits to the “relevant bands” in s 6 and to the sub‑1 GHz band in s 7. The sub‑1 GHz band is defined as “the part of the spectrum up to 1 GHz” (s 4).
• Major population area and regional area: The spatial application of limits is split between the major population area and the regional area, both to be identified in the marketing plan made by ACMA under s 39A of the Act (s 4). The marketing plan will use HCIS cells to identify geographic coverage of those areas (s 4 notes).
• Spectrum set‑aside and election mechanism: Section 6 implements a spectrum set‑aside in the relevant bands for Optus and for TPG Telecom, by reference to whether Optus and/or TPG have “elected to take up the spectrum set‑aside” (s 6(1) table; s 6(2) defines election). That election is operationalised by registration under the allocation procedures, non‑withdrawal, and compliance with any fees or notification requirements that ACMA imposes in its allocation procedures (s 6(2)(a)-(d)).
• Associates and relevant group of persons: The Direction deploys a broad associate test that applies to bodies corporate and individuals. Associates include directors, secretaries, related bodies corporate, individuals with at least 15% control of voting power or issued shares, spouses and de facto partners, and persons party to a relevant agreement that gives use or acquisition rights over spectrum licences (s 4 definition of associate). “Relevant group of persons” is either a person with all associates, or two or more such groups that share at least one member, subject to a company secretarial services exception in s 4(3).
• Measurement conventions: A reference to “a part of the spectrum” includes frequencies greater than the lower frequency up to and including the higher frequency; the lower number is excluded (s 4(2)). The instrument therefore prescribes the counting rule for spectrum ranges.
• HCIS Population Data Document and insignificance test: Section 7(1)(c) and 7(2) introduce a population‑based test to treat pre‑existing limited 800 MHz licences as if they did not apply in the major population area when the covered population is “insignificant”, defined as less than 25% of the major population area as determined by the HCIS Population Data Document (s 7(2)(b)-(c)). The HCIS Population Data Document is fixed “as that document existed at the time this instrument was made” (s 4).

The Direction identifies three categories of affected actors: the ACMA as the decision maker required to set allocation procedures, named wholesale mobile network operators Optus Mobile Pty Limited and TPG Telecom Limited, and other spectrum applicants or holders including their associates and relevant groups of persons.

• ACMA: The Direction binds ACMA to determine allocation procedures under s 60(1) that contain the limits described in s 6 and s 7. The Direction therefore changes the content of ACMA’s allocation procedures for the re‑allocation exercise in the 850/900 MHz band (s 5).
• Optus and TPG Telecom: The Direction explicitly names Optus Mobile Pty Limited and TPG Telecom Limited and treats them as potential beneficiaries of a spectrum set‑aside in the relevant bands (s 4 definitions; s 6 table). Their affirmative action to “elect to take up the spectrum set‑aside” under ACMA’s allocation procedures changes the caps that will bind other participants in that relevant area (s 6(1) and s 6(2)). Whether one or both of those carriers elect to take up set‑asides is a triggering fact for the cap matrix in s 6.
• Other persons and “relevant group of persons”: The Direction affects any person seeking spectrum licences in the 850/900 MHz re‑allocation, because it requires ACMA’s allocation procedures to cap the spectrum any person or relevant group of persons may use (s 5; s 7(1)). “Relevant group of persons” (s 4) means either a person and their associates or, subject to s 4(3), overlapping groups sharing at least one member. The associate definition is broad and captures related bodies corporate, officers, individuals with 15% control, spouses, de facto partners, and parties to “relevant agreements” that permit the use or acquisition of spectrum licences (s 4).
• Holders of pre‑existing 800 MHz licences: Section 7(1)(c) and 7(2) affect holders of relevant spectrum licences in the 800 MHz band that, immediately before an allocation, authorise operations in only parts of the major population area. Where the population covered is “insignificant” per the HCIS Population Data Document threshold (less than 25%), that licence is to be treated as if it did not apply in the major population area for the purpose of calculating caps (s 7(1)(c); s 7(2)(b)-(c)).
• Parties to “relevant agreements”: The associate definition includes parties to agreements that give one party the use of spectrum licensed to another or relate to the acquisition of a spectrum licence in the re‑allocation band (s 4 definition of associate par (c)). The Direction therefore brings into scope third parties that are not owners of licences but who are formal or informal counterparties to arrangements dealing with the use or acquisition of the relevant spectrum.

The Direction imposes duties on ACMA and sets out rights or options for named carriers and applicants that affect how spectrum allocation is implemented.

Duties on ACMA

• Duty to include limits in allocation procedures: The primary duty is to determine allocation procedures under subsection 60(1) of the Act that impose the limits set out in sections 6 and 7 (s 5(1)). This is a mandatory direction; ACMA must ensure allocation procedures reflect the caps and set‑aside mechanism mandated by the Direction.
• Duty to apply limits to allocations enabled by the re‑allocation declaration: The limits must apply to the allocation of spectrum licences in the 850/900 MHz band enabled by the re‑allocation declaration (s 5(2)). ACMA cannot lawfully adopt allocation procedures for that re‑allocation that fail to implement the Direction’s limits.
• Duty to use the marketing plan and HCIS data for geographic delineation and population measurement: The Direction references the marketing plan made under s 39A to define major population and regional areas and the HCIS Population Data Document for population calculations (s 4; s 7). ACMA must therefore adopt allocation procedures that operate with those documents.
• Duty to create procedural rules that implement election, registration and withdrawal rules: Section 6(2) refers to events tied to allocation procedures such as registration, withdrawal periods, circumstances where an application is taken to be withdrawn, application fees and written notifications. ACMA’s allocation procedures must specify those procedural elements in a way that gives effect to s 6.

Rights and options for carriers and applicants

• Right to elect to take up set‑aside: Optus and TPG are given the opportunity to “elect to take up the spectrum set‑aside” in a relevant area via the allocation procedures (s 6(2)). The Direction does not force them to take up set‑asides but makes their election a material determinant of how much spectrum other participants may use.
• Right of applicants to register: The Direction presumes that the allocation procedures will include registration as part of the mechanism for electing and for taking part in allocation, and registration is the triggering action for being treated as having elected (s 6(2)(a)).
• Right to withdraw subject to allocation procedure rules: The Direction contemplates withdrawal rights under the allocation procedures and counts non‑withdrawal as part of having elected to take up set‑asides (s 6(2)(b), (e)). Thus applicants will have procedural rights provided in ACMA’s allocation procedures.

The Direction does not itself establish criminal offences, civil penalties, or administrative fines. It is an instrument that directs the ACMA under subsection 60(10) of the Radiocommunications Act 1992 to determine allocation procedures under subsection 60(1) that include specified numeric limits (s 3; s 5). Enforcement therefore operates indirectly through the allocation procedures and the Act.

What the Direction expressly provides on enforcement and administration

• No penalties in the instrument: The text of the Direction contains no penalty provisions, infringement notices, nor schedules of fines. It sets mandatory constraints on the content of allocation procedures but does not itself declare contraventions or sanctions.
• Allocation procedures as the enforcement vehicle: Section 6(2) anticipates allocation procedures that will set out registration, withdrawal periods, circumstances for automatic withdrawal, application fees, and written notification requirements. Those allocation procedures are the locus where compliance obligations, eligibility, and practical enforcement measures (for example refusing registration or treating an application as withdrawn) will be articulated by ACMA (s 6(2)).
• ACMA powers under the Act: The Direction is made under the Act. ACMA’s existing powers and enforcement mechanisms in the Radiocommunications Act and its regulations are therefore the likely statutory means of enforcement for any rules in allocation procedures that implement the Direction. The Direction does not modify or list those powers; it simply directs ACMA on the content of allocation procedures for that specific re‑allocation. Users must therefore consult the Radiocommunications Act 1992 and ACMA’s subsequent allocation procedures to see the concrete enforcement regime that will apply.

Practical enforcement consequences implied by the Direction

• Eligibility and registration decisions: Because election to take up the set‑aside is defined in terms of registration and non‑withdrawal under the allocation procedures (s 6(2)(a)-(c)), the allocation procedures can enforce compliance simply by accepting or rejecting registrations or treating elections as withdrawn. This form of enforcement is administrative rather than penal.
• Counting and disqualification: The allocation procedures must implement the caps. Practically, ACMA will need to adopt counting rules and record keeping to determine whether a person or relevant group exceeds the 82 MHz or 92 MHz aggregate caps, or the 20/30 MHz caps in the relevant bands (s 6 and s 7). Those counting rules will likely be the basis for excluding an applicant from further allocations in the re‑allocation process if they would breach the caps, but the Direction leaves those operational rules to ACMA.

The Direction expressly references and depends on several other legal instruments and statutory definitions. It operates within the broader statutory framework established by the Radiocommunications Act 1992, and it cross‑references the Telecommunications Act 1997 and the Corporations Act 2001. The Direction also relies on ACMA’s marketing plan under section 39A of the Act and the HCIS Population Data Document.

Interactions explicitly stated in the instrument

• Radiocommunications Act 1992: The Direction is made under subsection 60(10) of the Act (s 3), and it directs ACMA to determine allocation procedures under subsection 60(1) (s 5). The allocation procedures required by the Direction are those used under the Act for spectrum licence allocations under Subdivision B of Division 1 of Part 3.2. The Direction therefore forms part of the statutory architecture for allocating spectrum licences and must be implemented by ACMA consistent with the Act.
• Telecommunications Act 1997: The Direction uses definitions from the Telecommunications Act for “carrier” and “public mobile telecommunications service” (s 4 notes). That means entities defined under the Telecommunications Act will be implicated in the associate tests and in the practical application of the Direction where those concepts are relevant to determining who is an associate or what services are relevant.
• Corporations Act 2001: The Direction uses the Corporations Act definition of “related body corporate” (s 4 notes). The associate definition references related bodies corporate and company offices. Consequently, corporate group structures governed by the Corporations Act are material to determining grouping and control tests for cap calculation.
• Competition and Consumer Act 2010 (Part XIC): The Direction excludes roaming services agreements and agreements between carriers provided for by or under the Telecommunications Act or Part XIC of the Competition and Consumer Act 2010 from the scope of what constitutes a “relevant agreement” for the associate test (s 4 definition of relevant agreement). That carve‑out means normal roaming arrangements and statutory carrier agreements under Part XIC will not, on their own, make parties associates for the purpose of this Direction.
• Radiocommunications (Spectrum Re‑allocation,850/900 MHz Band) Declaration 2020: The Direction explicitly applies to allocation of spectrum licences enabled by that re‑allocation declaration (s 5(2)). The re‑allocation declaration is therefore the enabling event; this Direction tailors the allocation procedures ACMA must use in that specific re‑allocation.

The instrument includes a commencement table and a note about the table; it does not contain any subsequent amendments within the provided text. The commencement provisions are explicit about timing and about the table’s application.

• Commencement: Section 2 contains a table indicating that “the whole of this instrument” commences on “the day after this instrument is registered” (s 2 table). Paragraph (1) states that each provision specified in column 1 commences in accordance with column 2. Paragraph (2) clarifies that any information in column 3 of the table is not part of the instrument and may be edited in published versions (s 2(2)). The instrument therefore takes effect administratively the day after registration.
• “This table relates only to the provisions of this instrument as originally made”: The note at s 2 indicates that the commencement table is tied to the instrument as originally made and will not be amended to deal with later amendments. That implies that any future amendment would have its own commencement provision and would not retroactively alter the original table.
• No amendments recorded in the text provided: The instrument text supplied contains no schedule of amendments, no later dates, and no repeal clauses. It therefore appears to be the original instrument as made. Because the instrument refers to the HCIS Population Data Document “as that document existed at the time this instrument was made” (s 4), that phrase fixes certain references to the instrument’s point of origin.
• Effect on later instruments: The Direction requires ACMA to prepare allocation procedures under s 60(1) of the Act that incorporate the limits in s 6 and s 7. Any changes to those allocation procedures could be effected by ACMA in accordance with the Act, but the Direction itself will remain as a statutory instrument until revoked or superseded. The Direction was made under s 60(10) which, in the statutory architecture, permits a Ministerial direction to ACMA on allocation procedures; future Ministers could in principle make new directions under that subsection.

What the text does not include about amendment history

• No dates of making or registration are included in the provided text. The instrument states only that it is “the Radiocommunications (Spectrum Licence Limits,850/900 MHz Band) Direction 2021” (s 1) and that it commences the day after registration (s 2). The precise date of registration and any later amending instruments are not contained in the supplied material.
• No record of revocation or supersession is provided. The Direction does not contain an express sunset clause or expiry. Therefore, under the instrument’s text, it remains operative until amended or revoked by a subsequent lawful instrument.

The text of the Direction contains no reference to litigation, court decisions, or tribunal determinations. It does not name any cases and does not record any judicial review or litigation arising from it in the instrument itself.

• No cases named: The instrument contains no judicial or tribunal citations. It does not discuss prior litigation or adjudication concerning similar directions or spectrum allocation.
• Potential judicial review avenues not specified in the instrument: The Direction is a statutory instrument made under subsection 60(10) of the Radiocommunications Act 1992. The Act provides avenues for judicial review of administrative decisions in the usual way under Australian administrative law, but the Direction does not itself set out any litigation procedures. Any affected person who considers a later ACMA allocation procedure to be inconsistent with the Direction, or who claims procedural unfairness in ACMA’s implementation, would need to consider judicial review under the Administrative Decisions (Judicial Review) Act 1977 or common law review principles, and rights of appeal where available. Those procedural and judicial mechanisms are not inside this Direction, and this instrument does not alter or list them.
• No administrative determinations or dispute resolution provisions: The Direction imposes limits for ACMA to reflect in allocation procedures, but it leaves the mechanics of dispute resolution, application of counting rules, and enforcement to ACMA’s subsequent steps and to the legal framework in the Radiocommunications Act and broader administrative law. The Direction itself does not create an internal appeal right against a decision to deny registration or to treat an application as withdrawn.

Practical note for litigators and advisors

• The operational rules that ACMA publishes in its allocation procedures and then applies in award decisions will be the proper locus for litigated disputes. Because the Direction prescribes substance to be included in allocation procedures, a judicial review challenge could in principle engage questions such as whether ACMA implemented the Direction faithfully, or whether ACMA exceeded the scope of its discretion when interpreting “associate”, “relevant group”, the treatment of pre‑existing licences under s 7(1)(c), or how it applied the election mechanics in s 6(2). That said, those are prospective litigation issues tied to ACMA’s subsequent instruments and actions; the Direction itself contains no litigation record.

In summary, the Direction as provided contains no litigation history. Any litigation arising will most likely concern how ACMA implements the Direction in its allocation procedures or how ACMA applies those procedures to particular applicants.

This section highlights technical traps and features in the text that can produce unexpected practical consequences if overlooked. All references below are to the sections of the Direction.

1. Associate definition is broad and includes relevant agreements

• The associate definition (s 4) is not limited to shareholding and direct control. It includes parties to “relevant agreements” which, by s 4, are agreements that give one party the use of spectrum licensed to another or relate to the acquisition of a spectrum licence for the spectrum referred to in the re‑allocation declaration. That definition expressly excludes roaming services agreements and agreements between carriers provided for under the Telecommunications Act or Part XIC of the Competition and Consumer Act 2010. Nevertheless, commercial arrangements that transfer use rights or are conditional on acquisition may catch entities as associates, drawing them into the same “relevant group of persons” for cap calculation.

2. Control threshold of 15% and officer tests

• For bodies corporate, an individual who “controls at least 15% of the voting power or holds at least 15% of the issued shares” is an associate (s 4). This 15% threshold is low enough to draw in significant minority holders and must be checked carefully when calculating group holdings.

3. “Relevant group of persons” overlaps and the company secretary exception

• Relevant groups may be aggregated where two or more person-plus-associate groups have at least one member in common (s 4 definition of relevant group of persons). There is, however, a narrowly drafted exception in s 4(3) that prevents an individual providing company secretarial services via an independent third party from creating such overlap, subject to specific conditions. That exception applies only where the secretarial services are provided through an external third party carrying on a professional services business, where the third party is not in any of the groups, and the companies are incorporated outside Australia (s 4(3)). The exception is narrow; reliance on it requires evidence that conditions are satisfied.

4. Counting intervals exclude lower frequency

• The measurement convention in s 4(2) states that a reference to a part of the spectrum includes “all frequencies that are greater than the lower frequency, up to and including the higher frequency.” The lower number in a range is therefore excluded. Practitioners must apply that rule when computing MHz totals to ensure off‑by‑one style counting errors do not occur.

This section sets out practical steps grounded in the instrument for entities that intend to participate in the 850/900 MHz re‑allocation, to be implemented in conjunction with ACMA’s allocation procedures under the Radiocommunications Act.

1. Identify whether you are in scope

• Determine whether you are a person, an associate of a person, a related body corporate or part of a “relevant group of persons” as defined in s 4. Map your corporate ownership, directors, secretaries, and any individuals with at least 15% of voting power or issued shares. Include family relationships (spouse and de facto partners) for individual applicants. Where you have contractual arrangements that give rights to use spectrum licensed to another or relate to acquisition of spectrum licences, evaluate whether those agreements fall within the Direction’s “relevant agreement” definition. Exclude roaming and Part XIC statutory carrier agreements where appropriate (s 4).

2. Determine geographic application

• Use ACMA’s marketing plan under s 39A to identify the major population area and the regional area that will be used by ACMA. The Direction requires the caps to apply separately in relation to each area (s 6 note). Check the HCIS cells referenced in ACMA’s published marketing plan to see whether your existing licences or planned operations fall within major or regional areas.

3. Quantify existing holdings against caps

• Compute your existing holdings in the sub‑1 GHz band and in the relevant bands using the measurement rule in s 4(2) (lower frequency excluded, upper frequency included). Compare totals to the aggregate caps in s 7(1)(b): 82 MHz in the major population area and 92 MHz in the regional area. Also check whether your prospective acquisition in the relevant bands will push cumulative holdings past the set‑aside caps in s 6.

4. Review pre‑existing 800 MHz licences for transitional treatment

• If you hold an 800 MHz spectrum licence that applies to some parts of the major population area only, determine whether the population of the covered part is “insignificant” under s 7(2)(b)-(c) by reference to the HCIS Population Data Document as it existed when the instrument was made (s 4). If the part covers less than 25% of the major population area, that licence is to be treated as if it did not apply in the major population area for cap calculation purposes (s 7(1)(c)).