S.I. No. 158/2018 - Wireless Telegraphy (National Point to Point Block Licences) Regulations 2018

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 15th May, 2018.

The Commission for Communications Regulation, in exercise of the powers conferred on it by section 6(1) of the Wireless Telegraphy Act 1926 (No. 45 of 1926) as amended by the Communications Regulation (Amendment) Act 2007 (No. 22 of 2007), and with the consent of the Minister for Minister for Communications Climate Action and Environment pursuant to section 37 of the Communications Regulation Act 2002 , hereby makes the following Regulations:

Citation

1. (1) These Regulations may be cited as the Wireless Telegraphy (National Point-to-Point Block Licences) Regulations 2018.

Interpretation

2. (1) In these Regulations—

“26 GHz Band” means the part of the radio frequency spectrum consisting of 3300 MHz in the range 24.250 — 27.550 GHz;

“26 GHz Band Licence” means a licence in the form set out in Schedule 1 to keep and have possession of Apparatus in the State in accordance with, and subject to the terms and conditions contained in, the licence;

“26 GHz Band Interim Licence” means a licence in the form set out in Schedule 2 to keep and have possession of Apparatus in the State in accordance with, and subject to the terms and conditions contained in, the licence;

“2007 Regulations” means the Wireless Telegraphy (National Point-to-Point and Point-to-Multipoint Block Licences) Regulations 2007 ( S.I. No. 762 of 2007 );

“Act of 1926” means the Wireless Telegraphy Act 1926 (No. 45 of 1926);

“Act of 1972” means the Wireless Telegraphy Act 1972 (No. 5 of 1972);

“Act of 2002” means the Communications Regulation Act 2002 (No. 20 of 2002);

“Apparatus” means apparatus for wireless telegraphy as defined in section 2 of the Act of 1926 that,

(a) in relation to a 26 GHz Band Licence utilises radio frequencies in the range 24.745 — 25.277 GHz paired with 25.753 — 26.285 GHz to provide Point-to-Point Services, or

(b) in relation to a 26 GHz Band Interim Licence utilises radio frequencies in the range 24.773 — 25.277 GHz paired with 25.781 — 26.285 GHz to provide Point-to-Point Services or Point-to-Multipoint Services;

“Authorisation Regulations” means the European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2011 ( S.I. No. 335 of 2011 );

“Award” means the open competitive award process as detailed in the Information Memorandum and as conducted by the Commission for the purpose of granting 26 GHz Band Licences;

“Award Rules” means the rules and procedures relating to the Award as set out in the Information Memorandum;

“Commission” means the Commission for Communications Regulation established under the Act of 2002;

“CPI” means the Consumer Price Index as published from time to time by the CSO;

“CPI Adjustment” means a negative or positive adjustment to a Spectrum Usage Fee, calculated using the CPI according to the methodology set out in the Information Memorandum;

“CSO” means the Central Statistics Office or its successor;

“electronic communications network” and “electronic communications service” have the meanings assigned to them in the Framework Regulations;

“Existing Licensee” means a holder of a licence granted under the 2007 Regulations;

“Framework Regulations” means the European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 ( S.I. No. 333 of 2011 );

“Frequency Division Duplex” or “FDD” means radiocommunication equipment the design and operation of which involves the separation of upstream and downstream radio transmission in the frequency domain using the same frequency;

“harmful interference” has the meaning set out in the Framework Regulations;

“Information Memorandum” means the document published by the Commission on 27 April 2018 and bearing Commission Document number 18/32 and which details the rules and procedures the Commission will follow in running the Award;

“Licence” means a 26 GHz Band Licence and/or a 26 GHz Band Interim Licence, as the context makes apparent or so implies;

“Licence Commencement Date” means the date specified in a Licence upon which the Licence comes into effect;

“Licensee” means the holder of a Licence;

“non-exclusive” in relation to a Licence means that the Commission is not precluded from authorising the keeping and having possession by persons other than the Licensee of apparatus for wireless telegraphy in the radio frequency spectrum specified in the Licence and the use of such apparatus on a non-interference and non-protected basis;

“non-interference and non-protected basis” means that the use of Apparatus is subject to no harmful interference being caused to any radiocommunication service, and that no claim may be made for the protection of Apparatus used on this basis against harmful interference originating from radiocommunication services;

“Point-to-Point” means a radiocommunications fixed link that establishes a connection only between two fixed end points;

“Point-to-Multipoint” means a radiocommunications fixed link system that establishes connections between a single specified point and more than one other specified points;

“Point-to-Point Service” means a service consisting of the provision of Point-to-Point fixed links;

“Point-to-Multipoint Service” means a service consisting of the provision of Point-to-Multipoint fixed links;

“Radio Equipment Regulations” means the European Union (Radio Equipment) Regulations 2017 ( S.I. No. 248 of 2017 );

“Radiocommunication service” means a service as defined in the Radio Regulations of the International Telecommunication Union involving the transmission, emission or reception of radio waves for specific telecommunication purposes;

“Spectrum Access Fee” means the once-off fee paid to the Commission by a Winning Bidder at the conclusion of the Award and in advance of the Winning Bidder being granted a 26 GHz Band Licence;

“Spectrum Usage Fee” means the annual fee paid to the Commission by a Licensee for its 26 GHz Band Licence;

“Time Division Duplex” or “TDD” means radiocommunication equipment the design and operation of which involves the separation of upstream and downstream radio transmission in the time domain using the same frequency;

“Undertaking” has the meaning set out in the Framework Regulations;

“Upfront Fee” has the meaning set out in the Information Memorandum;

“Winning Bidder” has the meaning set out in the Information Memorandum; and

“Working Day” means a day which is not a Saturday or Sunday or a public holiday.

(2) In these Regulations:

(a) a reference to an enactment or regulation shall be construed as a reference to the enactment or regulation as amended or extended by or under any subsequent enactment or regulation;

(b) a reference to a Regulation or a Schedule is to a Regulation of or Schedule to these Regulations unless it is indicated that a reference to some other enactment is intended;

(c) a reference to a paragraph or subparagraph is to the paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended;

(d) a reference to a Directive of the European Parliament and Council shall be the Directive as amended or extended by any subsequent Directive; and

(e) a reference to a Decision of the European Commission shall be the Decision as amended or extended by any subsequent Decision.

(3) A word or expression that is used in these Regulations and that is also used in the Act of 1926 has, unless the context otherwise requires, the same meaning in these Regulations that it has in that Act.

(4) A word or expression that is used in these Regulations and that is also used in the Act of 2002 has, unless the context otherwise requires, the same meaning in these Regulations that it has in that Act.

(5) A word or expression that is used in these Regulations and that is also used in the Framework Regulations or in the Authorisation Regulations has, unless the context otherwise requires, the same meaning in these Regulations that it has in those Regulations.

(6) The Interpretation Act 2005 (No. 23 of 2005) applies to these Regulations.

Licences to which these Regulations apply

3. (1) These Regulations apply to all 26 GHz Band Licences as may be granted on foot of the Award and to any 26 GHz Band Interim Licences as may be granted for the purpose of completing the Award.

Application for the Grant and Form of Licences

4. (1) A Winning Bidder may submit an application to the Commission to be granted a 26 GHz Band Licence to include the assignment of such rights of use for radio frequencies in the 26 GHz Band as have been determined in accordance with the Information Memorandum and by the outcome of the Award and subject to payment by the Winning Bidder of all applicable fees in respect of the 26 GHz Band Licence.

(2) An Existing Licensee, who may also be a Winning Bidder, may submit an application to the Commission to be granted a 26 GHz Band Interim Licence to include the assignment of such rights of use for radio frequencies in the 26 GHz Band, as are held by the Existing Licensee at the time of submitting its application under its existing licence granted under the 2007 Regulations, and subject to payment by the Existing Licensee of all applicable fees in respect of the 26 GHz Band Interim Licence.

(3) An application for a Licence under paragraph (1) or (2) shall be in writing and shall be in such form as may be determined by the Commission from time to time and the Commission may grant a Licence in accordance with the relevant provisions of the Authorisation Regulations.

(4) A Winning Bidder or Existing Licensee who submits an application to be granted a Licence shall furnish to the Commission such information as the Commission may reasonably require for the purposes of its functions under these Regulations and the Authorisation Regulations and the Commission may refuse to grant a Licence to any Winning Bidder or Existing Licensee who, without reasonable cause, has failed to comply with a requirement to furnish any such information.

(5) A 26 GHz Band Licence to which these Regulations apply shall be in the form specified in Schedule 1, with such variation, if any, whether by addition, deletion or alteration as the Commission may determine from time to time or in any particular case.

(6) A 26 GHz Band Interim Licence to which these Regulations apply shall be in the form specified in Schedule 2, with such variation, if any, whether by addition, deletion or alteration as the Commission may determine from time to time or in any particular case.

Duration of Licences and Interim Licences

5. (1) The commencement date of a 26 GHz Band Licence shall be such date as may be specified by the Commission and, unless it has been withdrawn or had its duration reduced under Regulation 7, a 26 GHz Band Licence shall be of no more than ten years duration such that it shall expire in full on the tenth anniversary of its commencement date.

(2) The commencement date of any 26 GHz Band Interim Licence shall be 6 June 2018 (all licences granted under the 2007 Regulations having expired on 5 June 2018) and its duration shall be set by the Commission and specified in the 26 GHz Band Interim Licence, noting that the duration of any 26 GHz Band Interim Licence shall be no longer than is necessary to complete the Award.

Conditions of Licences

6. (1) Any Licensee that is granted a Licence under these Regulations and to which these Regulations apply shall:

(a) ensure that it complies with the conditions in its Licence and with these Regulations;

(b) ensure that all Apparatus installed, maintained, possessed or kept under the Licence is capable of operating within the radio frequencies specified in the Licence;

(c) ensure that all Apparatus worked or used under the Licence is worked or used only in the radio frequencies specified in the Licence;

(d) comply with any rules to prevent spectrum hoarding as may be laid down by the Commission under the Framework Regulations;

(e) ensure that it makes payment of all applicable Licence fees;

(f) furnish to the Commission such information in respect of the Licence as may be required by the Commission from time to time;

(g) ensure that all Apparatus under the Licence, or any part thereof, is installed, maintained, and used so as not to cause Harmful Interference;

(h) ensure that the Apparatus under the Licence, or any part thereof, complies with the Radio Equipment Regulations;

(i) comply with any special conditions imposed under section 8 of the Act of 1972;

(j) upon becoming aware of any event likely to materially affect its ability to comply with these Regulations, or any conditions set out or referred to in any Licence, notify the Commission of that fact in writing no later than 5 Working Days upon becoming aware;

(k) comply with all obligations under relevant international agreements relating to the use of Apparatus or the frequencies to which they are assigned;

(l) with specific reference to 26 GHz Band Licences, any Licensee that is granted a 26 GHz Band Licence may use it only to install, maintain, possess, keep, work or use Point-to-Point fixed links which utilise Frequency Division Duplex technology and, for the avoidance of doubt, such Licences may not be used to install, maintain, possess, keep, work or use Point-to-Multipoint fixed links or to install, maintain, possess, keep, work or use any Apparatus that utilises Time Division Duplex technology; and

(m) ensure that on each anniversary of the initial date of granting of a 26 GHz Band Licence, the Licensee concerned shall submit up to date information to the Commission in respect of Parts 1 and 2 of its 26 GHz Band Licence.

Enforcement, Amendment, Withdrawal and Suspension

7. (1) The Commission shall enforce compliance with the conditions attached to any Licence in accordance with the Authorisation Regulations.

(2) The Commission may amend any Licence from time to time in accordance with the Authorisation Regulations.

(3) The Commission may suspend or withdraw a Licence in accordance with the Authorisation Regulations, including where it emerges that a Licensee breached one or more of the Award Rules during its participation in the Award.

Licence Fees

8. (1) The fees payable to the Commission for a 26 GHz Band Licence shall consist of a single Spectrum Access Fee, paid in advance of the initial granting of the Licence, and a Spectrum Usage Fee paid annually thereafter.

(2) The amount in Euros of the Spectrum Access Fee and Spectrum Usage Fees, payable for any 26 GHz Band Licence, shall be determined in accordance with the Information Memorandum and the outcome of the Award, including any adjustments to or refunds of such fees as may apply as a consequence of the outcome of the Award.

(3) The Spectrum Usage Fee payable for any 26 GHz Band Licence of less than one year’s duration shall be calculated on a pro rata daily basis for such period as shall apply.

(4) The Spectrum Usage Fee payable for any 26 GHz Band Interim Licence shall be calculated on a pro rata daily basis in accordance with the Information Memorandum and by reference to the spectrum usage fee payable by the Existing Licensee concerned for its equivalent licence held under the Regulations of 2007, on the date of expiry of that licence (5 June 2018).

(5) Where the commencement date of a 26 GHz Band Licence is delayed, due to such circumstances as may arise as described in the Information Memorandum, the Licensee concerned shall be entitled to an adjustment of the fees payable and/or to a refund of fees already paid, as applicable and as provided for in the Information Memorandum.

(6) All Spectrum Access Fees and Spectrum Usage Fees, less any applicable adjustments or refunds, shall be paid to the Commission on the dates specified by the Commission and in the manner specified in the Information Memorandum.

(7) Where a 26 GHz Band Licence is suspended or withdrawn by the Commission, the Licensee concerned shall not be entitled to be repaid any part of any Spectrum Access Fee or Spectrum Usage Fee, as paid by the Licensee under this Regulation and in respect of such Licence, but the Licensee shall remain liable for payment of such fees or part of such fees, including interest, as are outstanding.

(8) If the amount of radio frequency spectrum assigned to a Licensee under a 26 GHz Band Licence should be reduced, at any time and for such reasons as may be decided upon by the Commission, the Licensee may be entitled to a refund of any Spectrum Usage Fee already paid and to a reduction on any future Spectrum Usage Fee, on a pro rata basis having regard to the nature of the spectrum reduction. The Licensee shall not be entitled to any refund of its Spectrum Access Fee.

(9) If the duration of a 26 GHz Band Licence should be reduced, at the request of the Licensee, the Licensee may be entitled to a refund of any Spectrum Usage Fee already paid, on a pro rata basis according to the length of the reduction in duration. The Licensee shall not be entitled to any refund of its Spectrum Access Fee.

(10) Failure by a Licensee to pay a required fee under this Regulation, on or before the date on which it falls due, shall constitute non-compliance by the Licensee concerned with these Regulations and the Commission, in respect of any non-payment of a fee, may take enforcement action in accordance with Regulation 7 and may take steps to recover the amount due in accordance with paragraphs 11 and 12 of this Regulation.

(11) Where a fee or part of a fee is not paid in time, the Licensee concerned shall pay to the Commission interest on the fee or part thereof that was or is outstanding. Interest shall accrue from the date when such fee or part thereof fell due until the date of payment of such fee or part thereof and shall be calculated at the same rate payable in respect of late payments in commercial transactions pursuant to the European Communities (Late Payment in Commercial Transactions) Regulations 2012, ( S.I. No. 580 of 2012 ).

(12) Any fee payable and owed by a Licensee under this Regulation may be recovered by the Commission from the Licensee as a simple contract debt in any court of competent jurisdiction.

Licensee to satisfy all legal requirements

9. (1) Licences granted pursuant to these Regulations do not grant to Licensees any right, interest or entitlement other than to install, maintain, possess, keep, work or use Apparatus in the State capable of providing:

(a) in the case of 26 GHz Band Licences, Point-to-Point Services only utilising FDD technology only in the radio frequency range 24.745 — 25.277 GHz paired with 25.753 — 26.285 GHz, and

(b) in the case of 26 GHz Band Interim Licences, Point-to-Point Services or Point-to-Multipoint Services utilising FDD or TDD technology in the radio frequency range 24.773 — 25.277 GHz paired with 25.781 — 26.285 GHz.

Revocation of the 2007 Regulations

10. The Wireless Telegraphy (National Point-to-Point and Point-to-Multipoint Block Licences) Regulations 2007 ( S.I. No. 762 of 2007 ) are hereby revoked.

SCHEDULE 1

WIRELESS TELEGRAPHY ACT, 1926

Wireless Telegraphy (National Point-to-Point Licences) Regulations

26 GHz Band Licence

The Commission, in exercise of the powers conferred on it by section 5 of the Wireless Telegraphy Act 1926 (No. 45 of 1926) and Section 9(1) of the Communications Regulation Act 2002 (No. 20 of 2002) grants the following licence to [INSERT LICENSEE NAME] of [INSERT LICENSEE ADDRESS] (“the Licensee”). The Licensee is hereby authorised to keep, have possession of, install, maintain, work and use apparatus as specified in part one of this Licence subject to the Licensee observing the conditions contained in this licence and in Regulation 8 of the Wireless Telegraphy (National Point-to-Point Block Licences) Regulations 2018 ( S.I. No. 158 of 2018 ).

This Licence shall come in to effect on DD/MM/YYYY (the “Licence Commencement Date”) and subject to revocation, suspension or withdrawal, expires on DD/MM/YYYY

Signed: ______________

For and on behalf of the Commission for Communications Regulation

Date of Issue: ______________

Part 1

Description of apparatus

Part 2

Places at which the Licensee is authorised to keep and have possession of the Apparatus.

Part 3

Details of spectrum

SCHEDULE 2

WIRELESS TELEGRAPHY ACT, 1926

Wireless Telegraphy (National Point-to-Point Licences) Regulations

26 GHz Band Interim Licence

The Commission, in exercise of the powers conferred on it by section 5 of the Wireless Telegraphy Act 1926 (No. 45 of 1926) and Section 9(1) of the Communications Regulation Act 2002 (No. 20 of 2002) grants the following licence to [INSERT LICENSEE NAME] of [INSERT LICENSEE ADDRESS] (“the Licensee”). The Licensee is hereby authorised to keep, have possession of, install, maintain, work and use apparatus as specified in part two of this Licence subject to the Licensee observing the conditions contained in this licence and in Regulation 8 of the Wireless Telegraphy (National Point-to-Point Block Licences) Regulations 2018 ( S.I. No. 158 of 2018 ).

This Licence shall come in to effect on DD/MM/YYYY and subject to revocation, suspension or withdrawal, expires on DD/MM/YYYY

Signed: ______________

For and on behalf of the Commission for Communications Regulation

Date of Issue: ______________

Part 1

Description of apparatus

Part 2

Places at which the Licensee is authorised to keep and have possession of the Apparatus.

Part 3

Details of spectrum

GIVEN under the Official Seal of the Commission forCommunications Regulation,

14 May 2018.

GERRY FAHY,

Chairperson for and on Behalf of the Commission for Communications Regulation.

The Minister for Communications Climate Action and Environment consents to the making of the foregoing Regulations.

GIVEN under the Official Seal of the Minister for Communications Climate Action and Environment,

10 May 2018.

DENIS NAUGHTEN,

Minister for Communications, Climate Action and Environment.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations provide for the issue of Licences for apparatus for wireless telegraphy used solely for the provision of Point-to-Point and Point-to-Multi-point Block Services, for the regulation of such apparatus and for the payment of fees by persons granted Licences for that purpose.