Third Party Authorizations in Spectrum and Apparatus Licences: Revocable at Will Provisions - Essay Example

Third Party Authorizations in Spectrum and Apparatus Licences: Revocable at Will Provisions Name Instructor Institution Due Date Introduction The Third Party Use- Spectrum License-rules 2000 is responsible for setting out terms and conditions for third party use of spectrum licences while the Limitation of Authorisation of Third Party Users-determination 200 sets out conditions for third party use of apparatus licences. The mentioned instruments need a third party authorization to be given such that it is revocable at will and an injunction or a court order cannot prevent its revocation. The concern of The Australian Commission and Media Authority (ACMA) is to do away with barriers that hold back marketable trading and letting of spectrum. It has laid down principles which recognize that market mechanisms play a vital role in ensuring spectrum is apportioned to its utmost worth uses and that the allotment and use of spectrum is dynamic; meaning it can vary over time due to the impacts of technological advances, customers tastes and preferences or the ever changing market stipulations. In addition the Vodafone products in Australia are run by a mobile telecommunication corporation called Vodafone Hutchison Australia -VHA (Hui 2010, 34). The purpose of this review submission paper will be to present considered views on relevant matters concerning Australia Third Party Authorisations in Spectrum and Apparatus Licences. Question 1: Are the revocable at will provisions in the third party use rules a barrier to the efficient use of spectrum? Yes, these rules are a barrier to the efficient use of spectrum. One of the reasons for this is the current ‘revocable at will provisions’ cannot provide the guarantee of admission to spectrum which is necessary for the third parties. The guarantee helps them to make momentous infrastructure investments which can endure for a long period of time and that rely on the spectrum accessed through this way. Therefore, the lack of surety considerably affects both the feasibility and worthiness of spectrum accessed under third party endorsement. In addition, the degree to ‘ revocable at will provisions’ affect the use of spectrum differ due to various level and type of investment that the authorization ought to make possible (Alasdai 2004, 54). However, there may exist a less important investment which means the revocation at will provisions are less objectionable but the compulsory obligation of such provisions may end up being contradictory with the profitable stipulations that the parties to the authorization would favor to bargain and have the same opinion. OPTIONS FOR AMENDING THE REVOCABLE AT WILL PROVISIONS 1. Option 1: Substitution of ‘at will ‘by ‘on terms agreed between the parties’. The alteration which is put forward here is to surrogate words, that is “by the licensee at will” by words which are similar to “on terms agreed between the parties”. In other words, beneath this option the content would still mean the accord must be revocable although there will be an alternative for the parties to come up with means so as to give a superior assurance to the third party, for instance dispute actions to be applied to solve disputes or the prior notices of revocation( Campbell 2008, 46). Question 2: Is Option 1 sufficient to remove a barrier to the efficient leasing of spectrum? The answer to this will be No. This is for the reason that, Option 1 will still necessitate the revocability of the authorization in the entire cases and therefore it may cause a border though it doesn’t do away with the uncertainty formed by the revocation prerequisite. The main challenge with these uncertainties is that they condense the efficacy of the sanction mechanisms hence dissuading the rate of investments. Moreover, the scope of the ambiguity that consequence from Option 1 will basically rely on the various terms and conditions that will are allowed under the said option. A case in point is where the parties are of the same opinion that the solitary foundation on which an authorization can be revoked is that the fundamental accredit is either called off or resumed (Manner 2003, 99-112). As a result, this will not source any ambiguity that may subsist in the deficiency of revocation at will provisions. Nonetheless, VHA has the right to question the convenience of the compulsory necessities if the contracted stipulations are limited to that comportment. In case a need a rises and the parties are to be in agreement more than this, Option 1 will not be in a position to curb down the uncertainty generated by the revocation recent requirements. Correspondingly if there is a need for the parties to concur to a revocation right nevertheless subject to fitting remedies, VHA suggests the position as substandard. In the circumstances where an approved third party is permitted to search for damages from licensee upon revocation at will even if they pull out to liquidation and consequential damages, will not be enough to reimburse him/her especially if the party uses the authorized permit as part of a broader network (Kenylon 2007, 67). Question 3: Are there any undesirable consequences from Option 1 for licensees or third parties operating under a license? If so, what are those consequences? Yes there exists consequence from Option 1 for licensees or third parties operating under a license. One of the most objectionable outcomes is the uncertainty that may upshot from the revocation of the authorization. As discussed previously, such uncertainty may hinder a party from pursuing an authorization depending on the level and category of the investment that the authorized user is intending to embark on. For instance if the authorization is reached at by the parties, the need to administer the danger that goes along with the uncertainty created by the revocation right may perhaps daunt the approved user from commencing the venture it would otherwise have undertaken. Secondly, Option 1 inflicts a certain degree of complexity on both the licensees and third parties. This is achieved when the parties are required to agree and negotiate provisions which the parties may not regard as relevant in the absence of enforced necessities (Cunningham, Stuart and Turner 2010, 75). 2. Option 2: Delete references to revocable Option 2 involves elimination of requirements of the Australian Communication and Media Authority (ACMA’s) for any references to revocation of the authorization from the set of laws for third party authorizations of both apparatus and spectrum licenses. In their view Vodafone Hutchison Australia (VHA), this is the favorite option. This option gives the parties a chance to confer as well as see eye to eye the terms that suit them best in a bid to defend their interests. This gives them conviction and flexibility which is vital in supporting crucial investment verdicts (Gordon, Smith and Richard 2006, 88). Flexibility of use allows markets in spectrum, facilitating innovation and capital configuration to occur with superior effectiveness. Further flexible spectrum rights will aid to make certain that spectrum moves to more prolific uses, including mobile broadband, in the course of voluntary market mechanisms. On the other hand Option 2 does not divest ACMA of its rights under the Act to put in force license conditions plus capturing additional enforcement action beside the licensee. Question 4: Is Option 2 sufficient to remove a barrier to the efficient leasing of spectrum? Vodafone Hutchison Australia (VHA) opinion is that, Option 2 is sufficient to do away with a barrier to the success of letting of spectrum. This is due to its capability to grant the licensees and authorized users the aptitude to consult and agree terms plus conditions together with any revocation rights they presume are important for the uses and investments that are to be carried out pursuant to a specific approval. Likewise the parties to the authorization would be proficient to decide what provisions linking to revocation are incorporated in the terms and conditions of the authorization. In addition, Option 2 makes available the most elevated level of flexibility for the parties and thus provision of the necessary surety of access is available so as to ensure agreements are created in the preferred way (Faulhaber, Madden and Petchey 2006, 61). Question 5: Are there any undesirable consequences from Option 2 for licensees or third parties operating under a license? If so, what are those consequences? In my own view there exist unfavorable results from Option 2 for licensees or third parties working under a license. First, when the entire references are eradicated to revocation from the regulations and determination moves all responsibility for revocation provision to the third party agreement, there is a high possibility of danger of no or insufficient provisions being added into agreements hence an increase to probable prevention or loss revocability capacity. Contrary, according to VHA there are no unfavorable consequences from Option 2 for licensees or third parties working beneath a license. As earlier observed VHA suggested that Option 2 does not deprive or impact negatively the rights and obligations of the third parties under the Act. Option 2 also has no effect on the rights of Australian Commission and Media Authority to impose such rights or compulsions (Hui and Polishuk 2008, 51). Therefore this option grants the parties a capacity to come up with profitable terms and conditions that will be used within the structure of the said lawmaking rights and obligations. This enhances flexibility and guarantee to the parties which enables them to hold up and guard the diverse forms of investments that need to be enhanced by the authorization of the third parties. 3. Option 3:Substitution of more direct provisions Under Option 3 every current provision which is connected to the revocation of the authorization will be eliminated and then replaced by those that reflect more straight the dangers to the ACMA that were intended to be alleviated by the revocable at will provisions (Alasdai 2004, 69). The phrasing would involve discussion between the Australian Commission and Media Authority and the Office of Legislative Drafting in Commonwealth, in the Department of the Attorney General. This Option increases the level of complexity to the bargaining and formation of authorizations and this might augment the costs of carrying out transactions; also there may be reduction of efficiency of authorizations as a way of transferring spectrums to its highest worthiness of utilization. Question 6: Does Option 3 impose a barrier to the efficient leasing of spectrum? Although Option 3 removes doubt formed by the present revocation necessities, in my judgment I think Option 3 compels an obstacle to the efficient letting of spectrum. As it has been discussed above, Option 3 heightens complexity to the negotiations as well as execution of authorizations which could make the costs of transactions to be high (Cch 2011, 12). Moreover, it may lessen the effectiveness of authorizations which as a method of moving spectrum to its uppermost rank of use. The increased complexity and high costs of business are unfounded owing to the fact that Option 3 fails to make available any extensive reimbursement to the parties to an authorization or the Australian Commission and Media Authority (ACMA). Another issue at hand is that Option 3 forces the incorporation of a raft of provisions in each and every agreement that is saleable thereby making it disproportionate to attain the proposed educational objective. Question 7: Are there any undesirable consequences from Option 3 for licensees or third parties operating under a license? If so, what are those consequences? The following are some of the undesirable results that I have observed from Option 3 as illustrated earlier in the previous page. One of the unfavorable consequence that Option 3 poses to the third party users and licensees is that, it adds a layer of intricacy to the bargaining and execution of authorizations which probably might lead to higher costs of the transactions to be undertaken as well as lessening the efficiency of authorizations as a way of moving spectrum to its highest value use. Secondly, the increased difficulty and the said increased costs caused by option 3 cannot be justified even though it is not considerable in the entire circumstances. . (Manner 2003,120). Additionally the compulsory requirements which are intended to be inflicted beneath option 3 do not have any considerable effects on the lawful privileges or obligations of the parties to an authorization. The Australian Commission and Media Authority states clearly in the latest phrases under Option 3 that; the licensee may revoke the agreement without notice if the third party is operating under the license in a manner not allowed by the license. This statement goes far ahead of what is needed to guarantee the parties are conscious of their rights and responsibilities (Campbell. 2007, 99). In the case where ACMA might consider a requirement connected to revocation is necessary in Option 3, then a subsection could be added specifying that an authorization will not be effective if the underlying licences is terminated or taken up again by ACMA. The main purpose of doing this will be to make sure that such obligation does not limit the present legal rights of party to an authorization thereby creating uncertainty in regard to the continuation of the stated rights. The extent of coverage and the type of guidance given for revocation provisions in the rules, regulations determination or other form is also a major confront, the guidance will be required to offer and ensure enough minimum provision and at the same time lowering any problems that may be experienced with the legal difficulties and innate limitations (Hui 2010, 52). Reference List Grant, Alasdai. 2004. Australian Telecommunications Regulation Communications Law Centre. Sydney: UNSW Press. Abdelhaleem, Saeed and Shellhammer, Stephen. 2011. TV White Space Spectrum Technologies. Florida: CRC Press Dennis, Campbell. 2007. International securities Law and regulation. Sydney: York Hill Law publishing. Gerald R. Faulhaber, Gary Madden and Jeffrey Petchey. 2006. Regulation and the Performance of Communication and Information Networks. Cheltenham: Edward Elgar Publishing Limited. Pan, Hui and Paul Polishuk. 2008. Fiber Optics Weekly Update .Washington: Paul polishuk. Butterworth Pty. Limited, Australia. 2005. Federal statutes annotations, Sydney: Butterworth. Jennifer A. Manner. 2003. Spectrum wars: the policy and technology debate. Norwood: Library of congress. Jennifer A. Manner. 2002. Global Telecommunications Market Access. Norwood: Library of congress. Gow, Gordon and Smith, Richard K. 2006. Mobile and Wireless Communications: an introduction. London: McGraw-Hill International. Campbell, Dennis. 2008. International Telecommunications Law. Sydney: York Hill Publishers. Cch. 2011. Australian Competition and Consumer Legislation. Sydney: CCH Australia Limited. Kenyon, Andrew T. 2007. TV futures: digital television policy in Australia. New York: John-Wiley Cunningham, Stuart and Graeme Turner. 2010. The Media and Communications in Australia. Singapore: KHL Printing Company Ltd. Pan, Hui. 2010. Asia-Pacific Telecom Monthly Newsletter. Boston: Information Gatekeeper Inc. Read More

Question 2: Is Option 1 sufficient to remove a barrier to the efficient leasing of spectrum? The answer to this will be No. This is for the reason that, Option 1 will still necessitate the revocability of the authorization in the entire cases and therefore it may cause a border though it doesn’t do away with the uncertainty formed by the revocation prerequisite. The main challenge with these uncertainties is that they condense the efficacy of the sanction mechanisms hence dissuading the rate of investments.

Moreover, the scope of the ambiguity that consequence from Option 1 will basically rely on the various terms and conditions that will are allowed under the said option. A case in point is where the parties are of the same opinion that the solitary foundation on which an authorization can be revoked is that the fundamental accredit is either called off or resumed (Manner 2003, 99-112). As a result, this will not source any ambiguity that may subsist in the deficiency of revocation at will provisions.

Nonetheless, VHA has the right to question the convenience of the compulsory necessities if the contracted stipulations are limited to that comportment. In case a need a rises and the parties are to be in agreement more than this, Option 1 will not be in a position to curb down the uncertainty generated by the revocation recent requirements. Correspondingly if there is a need for the parties to concur to a revocation right nevertheless subject to fitting remedies, VHA suggests the position as substandard.

In the circumstances where an approved third party is permitted to search for damages from licensee upon revocation at will even if they pull out to liquidation and consequential damages, will not be enough to reimburse him/her especially if the party uses the authorized permit as part of a broader network (Kenylon 2007, 67). Question 3: Are there any undesirable consequences from Option 1 for licensees or third parties operating under a license? If so, what are those consequences? Yes there exists consequence from Option 1 for licensees or third parties operating under a license.

One of the most objectionable outcomes is the uncertainty that may upshot from the revocation of the authorization. As discussed previously, such uncertainty may hinder a party from pursuing an authorization depending on the level and category of the investment that the authorized user is intending to embark on. For instance if the authorization is reached at by the parties, the need to administer the danger that goes along with the uncertainty created by the revocation right may perhaps daunt the approved user from commencing the venture it would otherwise have undertaken.

Secondly, Option 1 inflicts a certain degree of complexity on both the licensees and third parties. This is achieved when the parties are required to agree and negotiate provisions which the parties may not regard as relevant in the absence of enforced necessities (Cunningham, Stuart and Turner 2010, 75). 2. Option 2: Delete references to revocable Option 2 involves elimination of requirements of the Australian Communication and Media Authority (ACMA’s) for any references to revocation of the authorization from the set of laws for third party authorizations of both apparatus and spectrum licenses.

In their view Vodafone Hutchison Australia (VHA), this is the favorite option. This option gives the parties a chance to confer as well as see eye to eye the terms that suit them best in a bid to defend their interests. This gives them conviction and flexibility which is vital in supporting crucial investment verdicts (Gordon, Smith and Richard 2006, 88). Flexibility of use allows markets in spectrum, facilitating innovation and capital configuration to occur with superior effectiveness. Further flexible spectrum rights will aid to make certain that spectrum moves to more prolific uses, including mobile broadband, in the course of voluntary market mechanisms.

On the other hand Option 2 does not divest ACMA of its rights under the Act to put in force license conditions plus capturing additional enforcement action beside the licensee.

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