Spectrum management: Guidance on the regulatory framework for national spectrum management

06.06.2020 This article is excerpted from Report ITU-R SM.2093-3, Guidance on the Regulatory Framework for National Spectrum Management, and is reprinted here with the permission of the ITU. Society’s increasing use of radio-based technologies, and the tremendous opportunities for socio-economic development that these technologies provide, highlight the importance of radio-frequency spectrum and national spectrum management processes. Technological progress has continually opened doors to a variety of new spectrum applications that have spurred greater interest in, and demand for, the limited spectrum resource. Increased demand requires that spectrum be used efficiently and that effective spectrum management processes be implemented. Spectrum management is the combination of administrative and technical procedures necessary to ensure the efficient utilization of the radio-frequency spectrum by all radiocommunication services defined in the ITU Radio Regulations and the operation of radio systems, without causing harmful interference. The role of the International Telecommunication Union Radiocommunication Sector (ITU-R) in international spectrum management is to ensure the rational, equitable, efficient, and economical use of the radio-frequency spectrum by all radiocommunication services, including satellite services, and carry out studies without limit of frequency range on the basis of which ITU-R Recommendations and Reports are adopted. The regulatory and policy functions of the ITU-R are performed by World and Regional Radiocommunication Conferences and Radiocommunication Assemblies supported by Study Groups. This chapter provides guidance on the regulatory framework for national spectrum management. [1]

The international context

The telecommunication sector, including radiocommunications, is organized internationally within the framework of the International Telecommunication Union (ITU), which provides the basic framework for the global coordination and management of the radio-frequency spectrum. In between ITU and the national administrations, two other kinds of organizations, regional organizations and specialized international organizations, are also involved in spectrum management, at either regional or global level. At the regional level, organizations have been founded that bring together administrations, in some cases associating industry or radiocommunication operators. Their aim is to establish common positions in preparation for ITU decisions, to harmonize national frequency allocations within the relatively flexible framework set by ITU so as to facilitate the coordinated introduction of new services, and to harmonize the standards and procedures for certification of equipment with a view to its free circulation and use in the countries concerned. At the global and regional levels, specialized international organizations also exist in sectors of activity that use radiocommunications and are therefore dependent on spectrum availability: civil aviation, the maritime sector, meteorology, broadcasting, radio amateurs, radio astronomy and research. The World Trade Organization, within the framework of the General Agreement on Trade in Services (GATS), while recognizing the sovereign right of States to manage the frequency spectrum in terms of their own objectives, works to develop the instruments required so that exercise of that right does not in fact result in barriers to trade in services between its members.

International principles governing spectrum use

ITU international agreements recognize that utilization of the radio-frequency spectrum is a matter of State sovereignty, but that to be efficient it must be regulated. They are the basic global instruments with which, States, in ratifying such a work, undertake to respect common rules for sharing and using the spectrum, the goal being efficient utilization and equitable access. The ITU instruments relevant to spectrum management are the Constitution (CS), the Convention (CV) and, mainly, the Radio Regulations (RR). These instruments are only binding on the Member States among themselves. The radio-frequency spectrum is a non-depletable but limited natural resource available in all countries and in outer space. Since any transmitting radio station may cause harmful interference to spectrum uses on Earth or in space, the spectrum is a common resource of mankind that requires rational management by a treaty level agreement among all countries. In that spirit, ITU has been drawing up legal instruments for over a century, so that spectrum use is based on the fundamental principles set forth in the ITU Constitution. The ITU Radio Regulations (RR) constitute the principle regulatory framework within which States undertake to operate radio services and the basic tool for international spectrum use. They have international treaty status and are periodically reviewed (about every three years) by World Radiocommunication Conferences (WRC), which are attended by most ITU Member States. The RR specify, amongst other things, the frequency bands allocated to radio services and the regulatory conditions and procedures that administrations must follow for implementing radio stations providing those services. The guiding principle underlying all RR provisions is that new uses must avoid causing harmful interference to the services provided by stations using frequencies assigned to them in accordance with the RR and recorded favourably in the Master International Frequency Register (MIFR). The RRs, as drawn up by successive WRCs in past years, aims to allow each country the greatest possible flexibility with regard to spectrum use. In particular, the Table of Frequency Allocations (RR Article 5) authorizes several radiocommunication services in each band; those services are not necessarily compatible locally, but each country can select those it wishes to implement on its territory. The RR’s regulatory provisions and procedures then enable each country to coordinate, as required, the stations providing the services selected with those of other countries that may be affected, thus maximizing the efficient utilization of the spectrum. This relatively flexible framework has the advantage of respecting the wide range of countries’ spectrum needs and their sovereign right to meet those needs as long as it does not place undue constraints on other countries. It has the disadvantage of limiting economies of scale and the capacity for interoperability required to develop radiocommunications, in particular within the framework of worldwide services or those intended for the general public (e.g. mobile telephony, satellite broadcasting). For this reason, a major effort has been made to harmonize spectrum use at regional, or even global level, in particular with regard to mobile telephony. The activity towards harmonization has been to identify specific frequency bands for applications, corresponding to specific standards. The purpose of this harmonization is to increase economies of scale and decrease interference and incompatibilities.

Principles of national spectrum use

The radio-frequency spectrum is in the State’s public domain. As such, it is subject to State authority and must be managed efficiently so as to be of the greatest benefit to the entire population. This spectrum management usually takes place within a regulatory framework comprised of legislation, regulation, procedures, and policies. As the result of the State’s right to manage the spectrum, authorized spectrum users derive the benefits of the right and associated obligations to access and use the spectrum. It is up to the State, or a delegated regulatory authority, to allocate frequency bands for government or administrative uses, broadcasting, and telecommunications in the private industrial and commercial sector, taking into account the ITU Table of Frequency Allocations (RR Article 5) with due regard to the State’s international commitments. The managing authority draws up the national frequency allocation table and the national frequency register listing frequency assignments and keeps them up to date. It is responsible for coordinating the establishment, on national territory, of radio stations so as to ensure optimal use of available sites with a view to obtaining the best possible overall electromagnetic compatibility. The State can include provisions in its regulatory framework aimed at protecting transmitting and receiving radio centres from obstructions, and at protecting receiving radio centres from electromagnetic interference. The State, or the managing authority, can impose effective and appropriate spectrum utilization, taking account of the available technology and the development of society. In order to ensure optimum use of the frequency spectrum, the managing authority may proceed to reaffirming that this objective can be achieved either through the direct exercise of authority or through a negotiated process involving a financial consideration or by a procedure combining the two approaches. For example, the managing authority can use spectrum redeployment. As regards the public domain, the managing authority may make arrangements, including through a unilateral procedure (for example, licence revocation for non-utilization of assigned frequencies), in order to ensure the proper execution of missions of general interest or public service.

Spectrum utilization for broadcasting and for telecommunications purposes in the private commercial and industrial sector

The radio equipment whose use is authorized in the national territory must comply with these standards and essential requirements.

Prevention and elimination of interference

The State, or its delegated authorities, must ensure that the spectrum is utilized in conformity with the conditions stipulated in national and international regulations, in particular Article 15 of the RR. They must ensure that equipment is not sold unless it conforms to the essential standards and requirements set forth in national regulations. They must also take steps to prevent unauthorized utilization of the spectrum by employing methods such as:

The State, or its managing authorities, must put a stop to any recognized harmful interference observed.

Depending on national law, the State’s liability may be incurred when an interest has been infringed. A claim may be made by any person, foreign or not, having suffered damages. The State may be charged with a variety of faults: failure to act, insufficient means, inefficiency, delayed action, seriousness of the infringement of a general interest, and so on, such infringement shall conform to the legislation of such country.

Rights and obligations of the authorized users

The authorization (or licence) does not confer ownership of part of the spectrum but only the right to use it for a period of time specified in the authorization and in accordance with the rules contained in the terms and conditions attached.

The State, or the delegated managing authority, may limit the number of authorizations giving access to the spectrum because of the technical constraints inherent in frequency availability. The authorization may not be transferred unless so provided in the national regulatory framework.

The State or delegated authority endeavours to provide a level of protection to the users from harmful interference. The authorized users must respect the general rules and those laid down in the terms and conditions, and may only utilize those frequencies it has been assigned.

The terms and conditions for telecommunication operators authorized to set up a public network may also contain obligations of a general nature, such as:

The authorized user is in breach of its authorization should it fail to comply with its obligations. Depending on the seriousness of the non-compliance, the penalty may be:

Penal sanctions (imprisonment and/or fines) may be instituted by the national laws for the most serious offences, such as:

Transparency in national spectrum management

In the field of spectrum management, one of the pivotal tasks of each administration is to define the categories of users subject to specific management, and to draw up a national frequency allocation table dividing utilization of the spectrum among the categories of users, with their related rights and obligations.

The requirement of transparency varies depending on the type of user concerned. As mentioned above, transparency is a highly desirable management method in competitive markets; in other areas, however, where confidentiality and secrecy are crucial, transparency is neither required nor desired. Indeed, even in the regulation of markets open to competition, transparency is partly limited by the right to protect public needs and trade secrets.

For example, a significant part of the spectrum is usually allocated to the government’s inherent functions, such as defence, policing, and security. Those activities require special protection, and transparency in their management is not the rule. Qualified transparency may be applied to other activities in which security is important, such as maritime or aeronautical utilizations. However, utilization of the spectrum should benefit from transparent management, except for those previously cases mentioned.

Transparency may apply in particular to the following areas:

The linkage between international and national regulations

As in any other field, national legislation is drawn up with due regard for the State’s undertakings in the framework of its international activities. When it comes to radio frequencies and associated orbits, the States’ rights and obligations are governed mainly by the RR, which stipulate that those orbits and frequencies must be used rationally, efficiently, and economically so that countries may have equitable access to them.

The RR complements the ITU’s Constitution and Convention. The RR has international treaty status and national legislation must therefore conform to its provisions. This is obviously an essential rule for drafting national legislation. It must nevertheless be borne in mind that the RR are reviewed at WRCs held on the average every three years. Provision must therefore be made to adapt national regulations at the same pace.

The State may be bound by other obligations in the framework of its commitments to a regional organization or under bilateral or multilateral agreements.

Monitoring the spectrum

In order to guarantee that spectrum use conforms to existing regulations and the authorizations granted, there must be a spectrum monitoring system comprising fixed and mobile equipment.

That equipment is employed to check that frequencies are used in accordance with the authorizations granted. It can also be used to detect sources of interference.

The means involved are substantial and should be used in alliance whenever possible. They can be employed to conduct the international enquiries requested by ITU-R or by a foreign administration in the event of interference. [2]

Best practices for national spectrum management

With due regard to the ITU Constitution and Convention, this section addresses best practices for national spectrum management activities. [3] International practices are not included. However, some of the best practices outlined below are intended to interface with, or transition to, international practices, e.g. those relating either to collaboration with colleagues in other countries, or to coordination, such as that which would occur at a bilateral or multilateral consultation preceding a WRC, or at an international satellite coordination meeting. These practices are further intended to harmonize global spectrum management policies, to the extent practicable, by harmonizing practices among national administrations.

Best practices: