PUBLIC VERSION
Confidential materials contained in square brackets [ ] has been removed

1.
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Vodafone welcomes the opportunity to comment on the Ministry proposed options for interference management as part of the wider review of the Radiocommunications Act 1989 (the
Act).
As wireless technologies have become an indispensable part of people’s lives, the quality, capacity and reliability of wireless services become essential for society as a whole. Radio interference negatively impacts radio communications, so must be prevented. Any interference that does arise must be addressed quickly and effectively.
The Act establishes a framework and sets out basic processes for managing spectrum rights and interference. While parts of the regime have been working well, there are a number of areas that can be improved to better manage the impact of interference.
The recent workshops and related discussions have touched on many aspects of interference management, and have been invaluable as part of the review process. However most discussions so far have been focused on managing interference caused by legal activities and equipment, and between legitimate users of different frequency bands or services. While it is important to clarify and improve parameters, practices and processes related to such cases, these are not areas that most impact Vodafone and other wireless providers.
Illegal Transmission
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Since launching its wireless services in New Zealand, Vodafone has only been involved in a small number of cases where interference was caused by legitimate spectrum users, e.g. from out of band emissions or other legal wireless service providers. In reality, interference that has imposed most damage and cost to Vodafone has been caused by devices and equipment that transmit illegally in Vodafone’s Management Rights.
While the Act does have clear definitions classifying such radio transmitters as illegal, and provide limited avenues to deal with them, they are not sufficient and need to be improved substantially.
There are a number of areas where the Act lacks sufficient detail to deal with such illegal transmissions. These include: a.
The Act does not place any requirement or accountability on preventing rough devices from entering the country or being provided / sold to end users.
Today, it is not illegal to import and sell such devices under the Act, and there is no government agency that is responsible or accountable for controlling such activities. The problem is compounded by the ease of obtaining goods from overseas - a result of increased international travel and development of online commercial activities. This has caused rough devices to proliferate across New Zealand for both domestic and commercial use. As we set out in
Vodafone’s previous submission, such devices impact Vodafone’s service, and resolving this interference is a significant drain on our resources.
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
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8.
b.
The Act does not provide efficient measures or power for the victims of such interference to deal with the offenders quickly and effectively.
D.
E.
Currently, a rights holder must deal with the owner or operator of an interfering device directly, by either requesting that the device operator stop the interference voluntarily, or alternatively pursuing the offender through the courts. Both these options are costly and time consuming.
Interference victims can refer such offending to RSM’s compliance unit. Our experience has been that RSM is often reluctant to use stronger measures to quickly remove such interference, with RSM instead resorting to weaker Infringement Notices that provide a long grace period for the offender to take action. As a result, customers of affected services have to endure prolonged service degradation from the interference.
The current Infringement Notice is similar to infringement notices issued for simple documentation errors in a spectrum licence that do not cause any interference, or any material impact at all, to other legitimate users of spectrum. They are a weak instrument to address interference.
A.
Vodafone recommends amendment to the Act to address illegal interference:
Establish clear requirements, responsibility and stronger powers for government agencies to proactively prevent non-compliant radio devices and equipment from entering New
Zealand. Such agencies should be required to develop and implement measures including border control, import requirements, public education, and closer management of online trading activities, to stop interference issues “at the source”;
B.
C.
Provide measures for legitimate spectrum users and government agencies to quickly remove or shut down interfering radio transmissions in cases where it is clear that the offender is illegal or non-compliant in major areas, (e.g. unlicensed), and the services being impacted are essential or basic requirements for social functions, (e.g. emergency calls, basic communication needs, etc);
Promote inter-government agency efforts to prevent rough equipment from being imported, sold, and used in the country commercially or privately;
Clearly differentiate infringement penalties between illegal and service-impacting activities from documentation errors that do not cause real impact;
Establish a simple to use and efficient arbitration process to resolve conflicts where legality is unclear or not at issue. Such process should focus on removing service impacting issues, instead of determining who is at fault;
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
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F.
G.
Simplify and clarify technical parameters used to define spectrum rights, including removing Power Floor and other definitions that may cause ambiguity and uncertainty for future interference management; and
Establish a technical reference document outside the Act to define technical parameters, formulas, calculation methodology and guidelines for all licensing and related processes, as well as provide guidance for interference identification and dispute/arbitration processes.
Use of the Act’s Dispute Resolution provisions
9.
Vodafone considers that the reason why the provisions have not often been used is because there are a number of major flaws in the relevant provisions. Due to the complexity of the relevant provisions and the fact that they are all interrelated, it will be of most value to the Ministry to set out first Vodafone’s concerns and how it considers the current inference provisions can be amended to resolve the issues. Vodafone will then move on to setting out its response on each of the Ministry’s identified options (22-31) and the additional option specified by Spark (23A).
Problems with Interference Provisions
10.
Broadly, Vodafone is concerned that there is a lack of certainty around the remedies that will be available where harmful interference is experienced. This uncertainty includes: a.
uncertainty as to whether harmful interference will be considered lawful or unlawful, which hinges upon the (unclear) application of s 103; b.
uncertainty around whether arbitration will be available; c.
what arbitration process will be adopted; and d.
whether interim measures will be available for urgent cases.
11.
Vodafone also has concerns that the interference regime is inadequate to deal with many interference scenarios, including interference from unwanted emissions, some types of anticipated interference, interference caused by operators using General User Licences and interference to transmitters.
Proposed Amendments
12.
In order to effectively prevent harmful interference wherever possible and to efficiently resolve disputes where such interference occurs, amendments are required to various provisions in parts
11 and 12 of the Act (coupled with the amendments required to s 25A, covered in the first section of this submission). In summary, the amendments are:
 There be a right to suffer no harmful interference from any transmissions;
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
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 The interference provisions relate to all kinds of harmful interference (to both receivers and transmitters, whether from un-wanted or co-channel emissions and whether caused by a single operator or cumulatively by multiple operators);
 Either: o There be an explicit statutory obligation not to cause, or contribute to, harmful interference, a breach of which will be a contravention of the Act; or o The interference provisions of the IRRs be given specific statutory force so as to require mandatory compliance from operators.
 If neither of the above options is adopted, then the dispute resolution procedures should be available in relation to harmful interference from both lawful and unlawful transmissions;
 The dispute resolution procedures should be available pre-emptively in more circumstances;
 The Secretary should be required to refer disputes to arbitration unless there are good reasons not to, so long as the right to apply to the Court for remedies is preserved;
 Interim measures be available in all cases including where a dispute is referred to arbitration;
 Parties operating under GUSLs or GURLs should be subject to the regime;
 The Ministry should be compelled to amend licence terms where the cumulative effect of multiple GURL/GUSL users causes harmful interference.
13.
These suggestions are elaborated below, working through the relevant sections of the Act in order.
Section 99
14.
Section 99 sets out the rights conferred on a right holder by a spectrum licence. It relevantly contains the right (where applicable) to receive no harmful interference. The right is limited to harmful interference from co-channel emissions in a protection area and does not extend to harmful interference from unwanted emissions. Interference from unwanted emissions may be just as harmful, but there is potentially no remedy for such interference. In order to ensure that the remedial mechanisms set out in the Act can effectively be used wherever harmful interference occurs (whether from co-channel, or unwanted, emissions) there needs to be a general right of a right holder not to suffer any harmful interference to either its receivers or transmitters and a corresponding obligation on right holders transmitting radiowaves, not to cause, or contribute to, harmful interference. A breach of this obligation could then trigger the availability of some of the remedies and dispute resolution mechanisms in the Act.
Section 101
15.
Section 101 is a gateway to ensuring the availability of some of the remedies under the Act.
However, there is substantial uncertainty as to whether it will enable the remedies to be available when intended. The section requires compliance with Schedule 1. Schedule 1 makes it mandatory for every person transmitting radiowaves to comply with the IRRs (including
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
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obligations around avoiding and eliminating interference). Breach of the s 101 requirements will be a breach of s 103 and so trigger the availability of certain remedies. Importantly however, uncertainty is caused because the provisions of the IRRs are drafted in permissive rather than mandatory language and are targeted at the member states, rather than at operators within those states. This means that it is open for such operators to argue that the IRRs do not apply to them or that, as far as they do apply, they are complying (despite causing harmful interference). This twofold argument around the IRRs is exactly what Telecom argued in the interference dispute with
Vodafone that was before the High Court in 2009.
16.
This uncertainty creates a barrier to the swift and efficient resolution of disputes about harmful interference and may mean that victims of harmful interference are left without any effective remedy. It must be resolved.
17.
The uncertainty can be remedied in either of two ways. The simplest and most straight forward way would be to insert into the Act a positive obligation not to cause or contribute to harmful interference (from whatever source). A breach of this will be deemed to be not acting in accordance with the person’s rights (s 101) and so will be a contravention of s 103. This would make it clear that it is unlawful to cause harmful interference and that the statutory remedies are available.
18.
Another way in which the uncertainty could be resolved is through specific enactment of the relevant interference provisions of the IRRs in mandatory language and expressed as binding on operators. This will have the effect of ensuring that where the IRR standards are breached, harmful interference will be unlawful and so ensuring the availability of the statutory remedies. This option is likely to be more complex and care will be needed to ensure that the IRR obligations are appropriately enacted. It would also require rewriting of the IRRs to ensure they remain a proper reference point.
Section 102
19.
Section 102 deals with unwanted emission limits and need not be amended. It would need to be clear in any new positive obligation inserted to the Act that merely complying with unwanted emission limits in s 102 would not satisfy the need to also comply with the obligation not to cause harmful interference (i.e. staying within the limits is not a safe harbour and does not excuse harmful interference from those transmissions).
Section 103
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Section 103 is a key section as it deems contravention of a spectrum licence (as set out in s 101) to be an offence under the Act and so triggers remedies in s 117 and s 118. If either the obligation not to cause or contribute to harmful interference, or the IRR requirements, are sufficiently built into s 101(1), then that should enable those remedies to also be available for any harmful interference.
Section 105
21.
Section 105 is an important section. It was intended to ensure that operators of radio-equipment that suffer harmful interference could sue in nuisance. In order to bring an action in nuisance, a claimant needs to prove both an interference with the enjoyment of land and a legally protected
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
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interest in the land. Section 105 specifies that interference with receivers is an interference with the enjoyment of the land on which the receiver is situated. This provision is therefore key in ensuring that operators have a sufficient remedy for harmful interference and so it needs to be retained, but it needs to be amended in two ways so that it remains effective.
22.
First, the provision should not be limited to interference to receivers only. It is technically possible for harmful interference to be caused to transmitters so as to prevent them from transmitting or causing them to transmit distorted signals. Operators ought to be protected against such interference by the Act. This will ensure all types of harmful interference are caught by the Act’s regime and avoid technical threshold arguments about whether the interference was to receivers or transmitters. Both should be covered by s 105 (and by the general duty not to cause harmful interference, covered above).
23.
Second, the provision needs to be updated to ensure that equipment that is co-located onto another operator’s equipment is also covered. As mentioned above, a nuisance claimant needs to prove both an interference with the enjoyment of land (which is addressed in the provision as it stands) and a legally protected interest in the land. A “legally protected interest” includes ownership and exclusive possession, but does not include non-exclusive possession or use. Where equipment is co-located, there is unlikely to be a sufficient interest in the land on which to base an action in nuisance as there is no direct relationship with the landowner. There are likely to be many instances where an operator may not have a sufficient interest in the land to justify an action in nuisance. The section must be amended to cover instances of co-location by declaring that in all cases there is a sufficient interest in the land.
24.
The availability of the s 105 remedy should not be affected by any changes in the arbitration regime.
Sections 106-109C
25.
The next group of provisions introduce a regime for resolving disputes involving lawful transmissions causing harmful interference. There is a notice procedure and a possibility for disputes to be referred to arbitration (at the Secretary’s discretion). There are major problems with the statutory regime in these sections.
26.
The first issue is that the remedies are limited to lawful transmissions. As set out above there is uncertainty in the Act whether harmful interference will be lawful or unlawful due to the unclear position of the IRRs. If a positive obligation is inserted or the relevant IRRs are given mandatory statutory application, the uncertainty will be remedied so that all harmful interference will be unlawful. If that is the case, the distinction between lawful and unlawful interference is unnecessary and the statutory remedies, of arbitration, and in ss 117 and 118 should be available in all cases.
27.
If the uncertainty is not resolved in either of the ways suggested by Vodafone, then retaining the distinction between lawful and unlawful interference, with different remedies available for each, is unhelpful. It creates a threshold issue for parties to grapple with when experiencing harmful interference. Resolving this preliminary threshold question may cause unnecessary expense and delay to resolving disputes. It may also mean that, if the arbitration process is commenced and then it is determined that the interference was caused by unlawful transmissions, the arbitral
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
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tribunal will have no jurisdiction over the dispute. Any time and money invested in resolving the dispute will have been wasted and the party suffering the interference will then be forced to seek alternate ways to remedy the issue. Removing the limitation (the word “lawfully” in s 108(1)), and making the dispute resolution mechanisms available for all disputes involving harmful interference will overcome these issues. Despite making arbitration available in all cases, the right to apply to the Court for remedies needs to be preserved so that it can be exercised in appropriate circumstances.
28.
Another major problem with the regime is that it is very uncertain for a claimant what process will be engaged to resolve the dispute and, in particular, whether the matter will be referred to arbitration. The Secretary has discretion to refer a dispute to arbitration (or not) and to set out any matters that would otherwise be covered in an arbitration agreement. As set out in the Ministry’s brief (at 3.2.3), the underlying philosophy of the Act is to devolve management of spectrum to private management rights holders who will be responsible for enforcing the Act and using the provisions in the Act to manage interference. It is consistent with that philosophy that rightholders should have more control over the way in which a dispute is resolved.
29.
A rightholder suffering harmful interference is in the best position to determine whether the interference is of such a nature that arbitration is an appropriate resolution method or whether urgent injunctive relief or another interim measure is required. That party, therefore, ought to be able to apply to the Court for relief if necessary or otherwise to refer a dispute to the Secretary, who must refer disputes to arbitration, unless there are good reasons for not doing so. The arbitration process must not compromise the availability of injunctive relief where that is the appropriate course or the availability of interim measures. Any mechanism that involves a time period that must expire before the dispute can be referred to arbitration is unhelpful as it means that there is a time when no interim measures may be available – as such measures are not available under the Arbitration Act 1996 until arbitration has commenced (clause 21 of Schedule
1) and, logically, until the arbitral tribunal has been constituted. The regime will therefore need to ensure that interim measures can be obtained outside of the arbitral process prior to the tribunal being constituted.
30.
Having a range of potential remedies for harmful interference is consistent with the underlying philosophy of the Act and is more likely to lead to the efficient resolution of disputes. Harmful interference may be of such a nature that urgent relief is not required and dispute resolution mechanisms can run their course to resolve the issue, however, in some cases (whether the interference is lawful or unlawful) urgent measures are required to prevent serious harm. A party suffering the interference is best placed to determine what remedies are needed in the particular circumstances and they should be able to elect the course to take.
31.
Section 107 extends the availability of the dispute resolution regime (106-109C, not s 117 and s
118) to circumstances where transmissions have not yet commenced under a licence but the holder of the radio licence believes it very likely that these transmissions will cause harmful interference in the protection area of their licence. The reference to “lawful” transmissions in s
107 should be deleted. That the remedies are available pre-emptively in certain circumstances is beneficial, however, the section only responds where the party that anticipates experiencing interference is already transmitting but the other party had not yet commenced. The remedies should also be available where the party that anticipates harmful interference has not yet
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
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commenced service but the other party has. This was the case in the dispute between Vodafone and [ ] where both parties had purchased spectrum at the same time but [ ] had deployed [ ] technology on its spectrum before Vodafone could roll out its 3G network. Because of the incompatibility of the [ ] technology and Vodafone’s new technology, interference was anticipated as very likely. In such circumstances, the dispute resolution procedures ought to have been available. (This dispute also highlights the downside of the first-in-time considerations in dispute resolution and demonstrates that significant investments can be adversely affected by it.)
Sections 117 and 118
32.
The s 117 and 118 remedies were also intended to be available in the widest possible circumstances. This is clear from the list of liable parties in each of those sections. These sections need to respond in cases of harmful interference through the cumulative effect of multiple operators. This could be easily achieved either by amendments to those sections or by making the positive obligation not to cause harmful interference applicable to both causing or contributing to harmful interference.
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
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33.
The following section sets out our views on the specific options put forward at the RSM
Interference Management Workshops.
Option 1: Extend the requirement on AREs to retain engineering calculations after a licence is registered for seven years to the term of the licence
We agree that AREs should be required to retain ARE’s calculations for seven years.
Vodafone suggests that the Ministry provide guidelines on what information must be retained, and in what form or format (e.g. electronic or paper) the info is stored.
Option 2: Add provisions to introduce liability of approved persons for poor licence certification
We agree that introducing liability of approved person for certification problems may not improve the quality of such work, and is likely to simply increase the cost to businesses that rely on external approved persons to complete certification.
In addition to auditing the certification process, the Ministry should provide more education, training and other assistance to approved persons to improve the knowledge and capability, which in turn will improve the quality of their work.
Option 3: Further define ‘technically compatible’ in the Act
No further definition of this term is necessary, and any more attempt to further define is likely to unnecessarily complicate the matter and raise more questions than it answers.
Option 4: Incorporate some of the key requirements of the IRR as principles in the Act
We consider that it is sufficient to refer IRR as a whole. Any attempt to use only parts of
IRR to incorporate into the Act risks introducing more ambiguity and reducing clarity.
Option 5: Provide guidance on the IRR and require AREs to have regard to the guidance when certifying a licence
We agree with the Ministry that no specific guidance on IRR or attempts of interoperating
IRR should be added to the Act.
We propose that the Ministry establish a formal technical reference document outside the
Act, similar to the PIBs currently in use, to provide licensing-related parameter definitions, formulas, calculation methodologies, etc that the approved persons, manager and right holders must have regard to when crafting and certifying licences, as well as providing guidance for interference identification and dispute/arbitration processes. This document
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
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should be referenced in the Act and become binding on parties. The Act should also require that MBIE manage this document, and undertake regular reviews.
The content of this technical reference document should be based on industry standards
(e.g. ITU-R), best practice, and inputs from all relevant parties.
Option 6: Provide guidance outside the Act around the certification process and assessment of technical compatibility and the IRR
We think the Ministry should actively provide opportunities and resources to facilitate professional development of approved persons, to improve the overall knowledge and experience of them, which in turn will raise the quality of licence certification work. This is best done outside of the Act, but as part of the Ministry’s core responsibility.
Also as previously mentioned, a technical reference document outside of the Act will serve as guidance and rules.
Option 7: Include cumulative effects in the matters to be considered as part of the assessment of technical compatibility during the licensing stage
We consider it is technically desirable to consider cumulative effects as part of the licence certification process. However it may be difficult to do so in practice because of the potential complexity of such calculations. Instead of establishing a blanket requirement, we recommend that the certifier be required to consider such effects when the cumulative effect is, or is likely to be, a main factor in the interference calculation.
The guidance and methodology of such calculation should be provided in the technical reference document, proposed above.
We do not consider that taking the IRR and other ITU-R recommendations into account will automatically address the cumulative effects.
Option 8: Require planned licences to be considered as part of the licence engineering process and assessment of technical compatibility
We do not agree that planned licences need to be considered as part of the licence certification/engineering process. Non-current licences have no legal status so should not be taken into account.
Option 9: Require consideration of future uses during licence engineering
Vodafone agrees with the Ministry’s view on this point.
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
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2.2 Accuracy of licence information
Option 10: Set (and enforce) tolerance limits on over-recording licence parameters
We do not support setting tolerance limits on over-recording licence parameters. Overrecording certain licence parameters is often necessary to maintain compliance due to the nature and behaviour of many modern radio communication technologies.
Option 11: Increase scrutiny of licence applications at the licensing stage.
Vodafone agrees with the Ministry’s view on this point.
Option 12: Require regular audits or additional monitoring of [radio] licences to ensure licence parameters appropriately reflect real transmissions
Vodafone agrees with the Ministry’s view that it is not necessary to increase audits as it will do little to practically prevent interference, and lead only the increased costs.
2.3 Reference bandwidths
Option 13: Add reference bandwidths to all power related parameters
While it is beneficial to clarify reference bandwidths, it is not necessary to do so in the Act.
Such parameter requirements can be defined outside of the Act as part of the technical reference document discussed above.
2.4 Co-location
Option 14: Establish the role of the site manager and their responsibilities in the Act
Vodafone agrees with the Ministry’s view that there is little merit for such a role.
2.5 Unwanted emissions and power floors
Option 15: 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.
As stated in our previous submission, we propose that the Power Floor be removed completely. It has little value yet creates significant uncertainty around property rights and future interference concerns. A new parameter should be established to manage unwanted emissions. The ability to grant radio licences within the frequency range in a management right should also be removed. Spectrum licences can be used instead.
Option 16: Require unwanted emissions to reduce in power in accordance with industry best practice and the relevant standard for the equipment /service being provided
We consider that it is important to keep management rights technology-neutral whenever possible. It is preferable to let the management right owner determine the best use of the band. We do not, however, oppose such requirement being implemented in the Radio
Licensing Regime as in such cases the Crown is the right owner.
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
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2.6 Defining receive protection
Option 17: Add an MPIS parameter for co-channel and adjacent channel signals
Vodafone agrees with the Ministry’s view on this point.
Option 18: Replace MPIS with difference parameter such as I/N
We consider that MPIS is not the best parameter for all applications. For certain technologies, it is better to use I/N. We propose the introduction of I/N as an optional parameter that can be used instead of MPIS in cases where it suits better.
Option 19: Make the MPIS parameter ‘optional’ in Form 7
Vodafone agrees that MPIS should be optional in Form 7 as it is often not suitable or useful for certain applications.
2.7 Receiver performance
Option 20: Include receiver performance on licences
We do not support including receiver performance on licences. Such a requirement would significantly increase the compliance costs, reduce flexibility of spectrum usage, and increase uncertainly and ambiguity during interference identification and any dispute process. It would also create significant difficulties when a management right owner deploys new and/or improved equipment.
Option 22 – Amend the definition of harmful interference
Vodafone agrees that, if the rights and remedies relating to harmful interference can be appropriately adjusted (as set out above) there is no need to alter the definition of harmful interference per se.
Option 23 – Add a general presumption in the Act that unwanted emissions causing harmful interference should be removed by the transmitter
Vodafone agrees that the provisions of the Act should respond to harmful interference caused by unwanted emissions (as well as co-channel emissions). This could be achieved by altering the current provisions and adding a positive obligation as Vodafone has suggested above. Vodafone agrees that the onus should be on the transmitter causing the interference to remove it.
Vodafone is concerned that the current presumption in the Act relating only to co-channel emissions referred to by the Ministry (p 21 of Brief) is insufficiently clear as it depends on the application of the IRRs through s 101/103 and that application is unclear in the ways addressed above. The uncertainty must be remedied so that the presumption applies to both unwanted and co-channel emissions so that all harmful interference (to both receivers and transmitters) is avoided as much as possible and remedies are available if it does arise.
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
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Option 23A – Consider remedies available under the Act for resolving harmful interference to ensure receivers and transmitters have equivalent access to remedies
Spark suggested that the remedies under the Act for resolving harmful interference be considered to ensure both receivers and transmitters have access to remedies. The
Ministry asked for feedback on this issue. As set out above, Vodafone believes that the remedies for harmful interference should be available in the widest possible circumstances in order to prevent or limit the occurrence of harmful interference. It supports protecting transmitters as well as receivers from harmful interference so that remedies are available for both.
Option 24 – Enable the manager to initiate an injunction under section 118 for unlawful use of their spectrum
Vodafone considers that it would be beneficial for managers to be added to the list of people able to take action under s 118 where there is harmful interference. It considers that the fewer barriers to obtaining remedies for harmful interference the better.
Option 25 – Remove references to the arbitration process being for lawful emissions only
Vodafone agrees with the Ministry’s statement that the optimal solution where harmful interference occurs is for the parties involved to resolve the issue between themselves, however, where that proves not to be possible Vodafone considers that the Act needs to contain a robust and certain range of dispute resolution mechanisms. The current provisions fail to achieve this due to the uncertainty over whether harmful interference will be lawful or unlawful. If this uncertainty is remedied as Vodafone has suggested above, the distinction between lawful and unlawful interference is unnecessary and the arbitration procedure should be available in all cases, subject to reserving the availability of Court relief.
If the uncertainty is not resolved, then Vodafone considers that the arbitration procedure should be made available for all types of harmful interference and so the references to
“lawful” should be removed. This will help to avoid technical threshold arguments that are a barrier to the quick and efficient resolution of interference disputes. This amendment should only be made if it does not affect the availability of the remedies in ss
117 and 118 or the application of s 105. Interim measures should be available in all cases.
Option 26 – 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
Vodafone considers that the arbitration process needs to be flexible so that it is appropriate for a wide range of circumstances. This is unlikely to be possible if the process is stipulated in the Act. In particular, provisions that specify timeframes for discussion prior to arbitration and for the appointment of the tribunal are unlikely to be helpful where interim measures are needed urgently. This is why the right to apply to the court for urgent relief must be preserved for all cases, even where the parties agree to arbitrate the dispute.
Vodafone agrees that establishing a pool of arbitrators may be helpful to ensure the process runs as efficiently as possible.
Option 27 – Provide for interim measures prior to final resolution of a dispute
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
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Vodafone considers that reliance on the Arbitration Act to provide for interim measures is insufficient. Such measures will only be available under that Act once arbitration has commenced and the tribunal has been established. This is not appropriate in cases requiring immediate interim measures to prevent harmful interference. The right of a party to apply to the Court for interim measures must be available in all cases.
Option 28 – Reduce the prominence of the first in time benefit in a disputes process
Vodafone considers that the first-in-time consideration is important but that it creates issues as it is currently expressed. The consideration should remain, but be amended. The intention behind the consideration is to protect existing services so that a party buying spectrum or obtaining a licence knows that it must organise its operations so as not to cause harmful interference to the services currently operating. The consideration is currently expressed in respect of which licence was registered or granted first. This is too blunt.
Where parties purchase spectrum at the same time and one then commences operating on their spectrum using technology that severely limits the utility of the other’s spectrum it is unfair that the latter party should have to defer to the “earlier” service as that was not in operation at the time that the spectrum was purchased (usually for significant sums).
This was what occurred in the dispute between Vodafone and [ ] referred to above. Both purchased spectrum at the same 3G auction, but [ ] deployed quick, cheap and old technology on the small amount of spectrum it had purchased at the same time that
Vodafone had purchased significant spectrum for its 3G network and invested millions in developing that network. Vodafone had no way of knowing that [ ] would use its spectrum in such a way as to almost eliminate the use of a large portion of Vodafone’s own spectrum.
Where the spectrum is purchased at a later time, and so the licence registered when there are other services in existence, and known to be in existence, the first-in-time protection should apply. The only circumstances where an existing use should be lost is in extreme cases where there is a real threat to efficiency caused by the operation of old technology.
In such extreme cases, efficient use of the spectrum should be a key consideration.
Option 29 – Provide for a process to resolve disputes involving interference under a GURL, GUSL or licence exempt transmissions
Vodafone considers that the statutory remedies should be available in the widest possible circumstances, including interference occurring under GUSLs, GURLs and exempt transmissions. This should be clear and explicit in the Act.
The fact that s 108(1) currently refers to parties causing or contributing to harmful interference demonstrates that the remedies in ss 106-109C were intended to be available in cases where multiple user’s transmissions cause harmful interference. The possibility that there may be multiple respondents should also be borne in mind in the amendment of the arbitration regime.
The difficulty with attempting to address interference with operators using a GURL or
GUSL is that, as they do not have to register, it may not be possible to identify who is
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
15 July 2015
15

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• operating. In addition, there may be several operators, it may not be possible to determine what is causing the interference and it may be that the cumulative of multiple users cause the interference. Existing licencees must have some remedy available to them to resolve the interference. They should not be left without a remedy merely because of the identity of the party or parties causing interference (i.e. someone under a GURL rather than a registered licensee).
Practically, however, in cases of harmful interference caused by the cumulative effect of multiple users operating under a GUSL or GURL, it may be very difficult and expensive to attempt to resolve the issue in arbitration or before the Courts, with multiple operators. In these circumstances, affected parties should be able to require the Secretary to make changes to the licence terms so as to eliminate the harmful interference.
Option 30 – 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.
Vodafone would support a statutory right of appeal on identified matters. If the Ministry retains the discretion for referring matters to arbitration (rather than this being in the hands of the claimant as suggested by Vodafone above), this should be a decision amendable by review as well as any decision-making power to order interim measures or change licence terms.
Vodafone New Zealand Submission to the Ministry of Innovation, Business and Employment on the Radiocommunications Act 1989 interference management provisions.
15 July 2015
16