Consultation paper
NOVEMBER 2010
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acma | 1
Contents (Continued)
1. Introduction
Review of the Mobile Phone Jammer Prohibition
Proposed PMTS Jamming Devices Prohibition
Issues for comment
Written submissions
Publication and disclosure of submissions
Effective consultation
2. Background
Prohibited devices: Mobile phone jammers
Mobile Phone Jammer Prohibition
Exemptions to the Mobile Phone Jammer Prohibition
3. Review of the prohibition
Overview
Summary of the submissions
Scope of the Mobile Phone Jammer Prohibition
Exceptions to the Mobile Phone Jammer Prohibition
Compliance
4. Regulatory approach to jammers
Overview
Reasons for making the PMTS Jamming Devices Prohibition
5. Scope of the PMTS Jamming Devices Prohibition
Overview
6. Preferred option
PMTS Jamming Devices Prohibition
Exemptions to the PMTS Jamming Devices Prohibition
7. Issues for comment
Attachment A
Radiocommunications (Prohibition of PMTS Jamming Devices) Declaration 2010
acma | 11. Introduction
Review of the Mobile Phone Jammer Prohibition
In January 2010, the Australian Communications and Media Authority (the ACMA) announced a review of the regulatory framework that applies to mobile phone jammers, and in particular the Mobile Phone Jammer Prohibition.[1]
In January 2010, as part of the review, the ACMA released a public discussion paper on the regulation of mobile phone jammers in Australia. In addition, the ACMA has carried out research into future mobile phone technologies in Australia.
The purpose of this paper is to:
- provide details of the outcome of the review of the Mobile Phone Jammer Prohibition; and
- invite interested persons to comment on the ACMA’s proposal to make the Radiocommunications (Prohibition of PMTS Jamming Devices) Declaration 2010 (PMTS Jamming Devices Prohibition) under subsection 190(1) of the Radiocommunications Act 1992 (the Act).
Proposed PMTS Jamming Devices Prohibition
The proposed PMTS Jamming Devices Prohibition will prohibit the operation or supply of devices commonly known as mobile phone jammers, or the possession of such devices, for the purpose of their operation or supply.
The PMTS Jamming Devices Prohibition has been developed in response to the submissions received during the consultation process. It is intended that the PMTS Jamming Devices Prohibition will protect existing and future public mobile telecommunications services (PMTS) from the harmful and disruptive effects of interference by jamming devices. The PMTS Jamming Devices Prohibition is also intended to include within its scope some new mobile wireless technologies, such as mobile WiMAX.
The PMTS Jamming Devices Prohibition will also include an express definition of a PMTS jamming device, in order to target more accuratelythe class of devices which are to be prohibited. The PMTS Jamming Devices Prohibition is discussed in more detail at Section 6 – Preferred option.
In developing the proposal, the ACMA has taken into account changes in the commercial and technological environment for mobile communications that have occurred since the Mobile Phone Jammer Prohibition was made in 1999. The PMTS Jamming Devices Prohibition also recognises the vital and increasingly pervasive role that mobile telecommunications now play in citizens’ personal and business affairs, by emphasising the need to protect all mobile telecommunications devices from the threat of disruption or interference.
Issues for comment
The ACMA now seeks comment on the following aspects of the PMTS Jamming Devices Prohibition:
- The reasons for making a prohibition declaration under section 190 of the Act.
- The ACMA’s proposed approach to exemptions to the PMTS Jamming Devices Prohibition.
- The scope of the PMTS Jamming Devices Prohibition.
- The text of the PMTS Jamming Devices Prohibition.
Interested persons are invited to make submissions about the PMTS Jamming Devices Prohibition. In particular, addressing the issues set out in Section 7 – Issues for comment.
Written submissions
Submissions regarding the PMTS Jamming Devices Prohibition must be in writing, and must be received by the ACMA by close of business on 20 December 2010. Submissions should be sent to:
Licence and Numbering Development Section
Australian Communications and Media Authority
PO Box 13112
Law Courts
Melbourne VIC 8010
Fax: 039963 6899
Email:
Electronic submissions in Microsoft Word or Rich Text Format are preferred.
Publication and disclosure of submissions
In general, the ACMA publishes all submissions it receives. However, the ACMA will not publish submissions that it considers contain defamatory or irrelevant material.
The ACMA prefers to receive submissions which are not claimed to be confidential. However, the ACMA accepts that a submitter may sometimes wish to provide information in confidence. In these circumstances, submitters are asked to identify the material over which confidentiality is claimed and provide a written explanation for the confidentiality claims. The ACMA will consider each claim for confidentiality on a case-by-case basis. If the ACMA accepts a confidentiality claim, it will not disclose the confidential information unless required to do so by law (for example, under the Freedom of Information Act 1982 or subpoena) or authorised to do so by law (for example, under Part 7A of the Australian Communications and Media Authority Act 2005).
Effective consultation
The ACMA is working to enhance the effectiveness of its stakeholder consultation processes, which are an important source of evidence for its regulatory development activities. To assist stakeholders in formulating submissions to its formal, written consultation processes, it has developed the following guide: Effective consultation: A guide to making a submission. This guide provides information about the ACMA’s formal, written, public consultation processes and practical guidance on how to make a submission.
2. Background
Prohibited devices: Mobile phone jammers
Section 190 of the Radiocommunications Act 1992(the Act) provides that the ACMA may, by notice, declare that the operation or supply, or possession for the purpose of operation or supply, of a specified device is prohibited. The device must be one that:
is designed to have an adverse effect on radiocommunications;or
would be likely substantially to interfere with radiocommunications; or
would be likely substantially to disrupt or disturb radiocommunications in any other way;or
in the case of a radiocommunications transmitter or receiver, would be reasonably likely to have an adverse effect on the health or safety of certain persons.
A mobile phone jammer is a device that is designed to generate interference for the purpose of preventing, or substantially disrupting, the reception of transmissions between a mobile station and a base station. In most cases, the use of a mobile phone jammer in the affected area will prevent a customer’s mobile phone from accessing their mobile carriage service provider’s service.
Mobile Phone Jammer Prohibition
In March 1999, the Australian Communications Authority (the ACA) made the Notification that the Australian Communications Authority prohibits the operation or supply, or possession for the purpose of operation or supply, of specified devices (the Mobile Phone Jammer Prohibition). The Mobile Phone Jammer Prohibition prohibits the operation, supply, or possession, for the purpose of operation or supply, of a device commonly known as a mobile phone jammer. The Mobile Phone Jammer Prohibition only applies to mobile phone jamming devices operating in the 870 – 960 MHz and 825 – 845 MHz frequency ranges.
In making the Mobile Phone Jammer Prohibition, the ACA formed the view that there was no legitimate use for mobile phone jammers. It was considered that mobile phone jammers would:
jeopardise the quality and extent of legitimate carrier services;
prevent access to emergency services;
cause inconvenience to, or loss of business for, mobile phone users; and
interfere with not only mobile phone services, but other licensed radiocommunications, such as Defence radar and fixed point-to-point services.
When making the Mobile Phone Jammer Prohibition, the ACA specified the prohibited device by means of the frequency bands used by mobile phones at the time (that is, 870-960 MHz or 825-845 MHz). However, since then, the range of frequency bands used by mobile phones has increased. As a result, the Mobile Phone Jammer Prohibition does not prohibit jamming devices that operate within some of the frequency bands used to provide public mobile telecommunications services.[2]
Exemptions to the Mobile Phone Jammer Prohibition
The Act allows for the personnel of certain defence, law enforcement and emergency services agencies to be exempted from specific requirements of the Act.
Subsection 27(2) of the Act provides that the ACMA may, by written determination, exempt a class of persons specified in subsection 27(1) from all or any of Parts 3.1, 4.1 and 4.2 of the Act. The exemption may be expressed to apply generally or in specified circumstances.
The ACMA has previously made five determinations under subsection 27(2) of the Act, four of which remain in force.[3] The public discussion paper, Review of the Mobile Phone Jammer Prohibition, sought comment on the ACMA’s powers to make an exemption determination under section 27 of the Act, in particular, the regulatory arrangements associated with a proposal to trial mobile phone jammers at Lithgow Correctional Centre in New South Wales.
An exception is also provided in the Mobile Phone Jammer Prohibition. In January 2009, the Mobile Phone Jammer Prohibition was amended to facilitate arrangements for mobile phone use on board aircraft. This exception and the issue of standing exemptions to the PMTS Jamming Devices Prohibition are discussed further in Section Six- Preferred option.
3. Review of the prohibition
Overview
In January 2010, the ACMA commenced a review of the Mobile Phone Jammer Prohibition. The review sought comments on the continued relevance of the Mobile Phone Jammer Prohibition and the regulation of mobile phone jammers in general. A primary issue for comment was whether and how the scope of the Mobile Phone Jammer Prohibition should be expanded to include other mobile wireless technologies not presently included.
Since its inception, significant technological advancements have occurred which have placed pressure on the application of the Mobile Phone Jammer Prohibition. The ACMA considered it timely to review the Mobile Phone Jammer Prohibition with a view to ensuring current and future technologies are captured within the scope of the prohibition.
The areas of pressure include:
Not all frequency bands used by mobile phones are included in the Mobile Phone Jammer Prohibition.
The potential for the Mobile Phone Jammer Prohibition to capture devices that were not envisaged when it was made given the lack of an express definition of a ‘mobile phone jammer’.
The emergence of more sophisticated jamming technology capable of targeting specific frequencies known as ‘smart’ jammers.
The increasing use of mobile phone jammers to carry out criminal activities.
The emergence of legitimate uses for mobile phone jammers in the public interest.
The increasing need for the testing and trialling of prohibited devices for legitimate purposes.
The establishment of standards relating to electromagnetic emissions (EME) and human health.
Following the commencement of the review, the ACMA released the public discussion paper, Review of the Mobile Phone Jammer Prohibition (the public discussion paper). Thepublic discussion paper sought comment on the continuation of the Mobile Phone Jammer Prohibition, and whether its scope should be expanded to capture wireless technologies not originally covered, including WiMAX and Wi-Fi services.
Summary of the submissions
The ACMA received 15 submissions in response to the public discussion paper, with strong support among respondents that:
the original reasons for making the Mobile Phone Jammer Prohibition remained relevant.
the existing regulatory approach for mobile phone jammers remains appropriate (that is, the use of a section 190 declaration as the primary means of regulating jammers)
the Mobile Phone Jammer Prohibition should be retained in some form.
Other key findings from the submissions are summarised below.[4]
Scope of the Mobile Phone Jammer Prohibition
The majority of respondents expressed the view that the Mobile Phone Jammer Prohibition should be extended to include all wireless access bands (including mobile telephony bands and wireless access services, such as Wi-Fi and WiMAX), to cover telephony, messaging, data and internet services.
Suggestions from respondents regarding the drafting of the relevant provisions included:
specifying actual frequencies in the Mobile Phone Jammer Prohibition;or
relying on a generic description of service types (to encompass bands yet to be allocated).
A number of respondents argued that jammers (when exempted from the scope of the Prohibition by means of an exemption determination) should remain subject toEMEstandards as developed by the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA), and made by the ACMA under section 162 of the Act.
Exceptions to the Mobile Phone Jammer Prohibition
There was no support for a general exemption provision in the Mobile Phone Jammer Prohibition to allow for future tests or trials of emerging technologies. The majority of submissions expressed the view that any exemptions for trials or testing of prohibited devices should continue to be considered by the ACMA on a case-by-case basis, and in the context of its powers to provide exemptions under section 27 of the Act.
The option of relaxing the Mobile Phone Jammer Prohibition to exclude specified parties from its operation was not supported by the majority of submissions. Submissions generally agreed that section 27 of the Act provides the ACMA with sufficiently broad powers to issue exemptions.
The majority of the submissions supported the ACMA publishing its approach to consideration of requests for exemptions under section 27 of the Act.
Compliance
One submission addressed the role of compliance monitoring by suggesting that illegal supply (including internet-based supply) should be monitored to ensure effective compliance with the Mobile Phone Jammer Prohibition. The submission further observed that any proposed changes to, or relaxation of, the Mobile Phone Jammer Prohibition would have compliance implications.
4. Regulatory approach to jammers
Overview
Consistent with the views expressed during the review, the ACMA considers that a prohibition made under section 190 of the Act should remain the primary regulatory tool for the control and management of mobile phone jamming devices. Therefore, the ACMA proposes that the existing regulatory framework of a section 190 prohibition, supported by appropriate legislative exemptions under section 27 of the Act, remains relevant.
However, in acknowledgement of the technological developments over the past ten years, the ACMA proposes to revoke the Mobile Phone Jammer Prohibition and make a new PMTS Jamming Devices Prohibition. Under this approach, the exemption determinations made previously by the ACMA will continue to have legal effect following the making of the new PMTS Jamming Devices Prohibition.
The PMTS Jamming Devices Prohibition includes other mobile wireless services that are analogous to the services protected under the Mobile Phone Jammer Prohibition. This includes potential new public mobile telecommunications services, such as mobile WiMAX.
The PMTS Jamming Devices Prohibition will not apply to devices that operate only in relation to mobile wireless services that do not have the characteristic of intercell handover. This includes satellite telecommunications services and fixed wireless access services such as Wi-Fi services. However, where a jammer is able to operate in relation to both PMTS and other wireless access services, it is intended that the device will still be captured by the PMTS Jamming Devices Prohibition.
The operation of a device that interferes with radiocommunications (including services outside the scope of the PMTS Jamming Devices Prohibition) will continue to be subject to Part 4.2 of Chapter 4 of the Act. Section 197 of the Act is of particular relevance.
Reasons for making the PMTS Jamming Devices Prohibition
The ACMA proposes to make the PMTS Jamming Devices Prohibition for the following reasons:
- PMTS jamming devices can be used to block, or otherwise interfere with, radio emissions between a mobile station (for example, a mobile handset) and a base station. Consequently, a PMTS jamming device can be used to prevent mobile stations from sending or receiving voice and data traffic, to or from, a telecommunications network. The interference generated by a PMTS jamming device can also affect the quality, reliability and coverage of a public mobile telecommunications service.
- Businesses and individuals increasingly rely on public mobile telecommunications services for the delivery of voice telephony and data. Preventing or otherwise disrupting the supply of those services has the potential to adversely affect the public on a large scale, for example, by preventing access to emergency call services, or through loss of business or by otherwise causing inconvenience to mobile phone users.
- A PMTS jamming device may also disrupt radiocommunications that use frequency bands other than those used for the supply of a public mobile telecommunications service. Consequently, the use of a PMTS jamming device may adversely affect the delivery of other licensed radiocommunications.
- High powered PMTS jamming devices may emit radiation at levels that exceed that permitted under the Radiocommunications (Electromagnetic Radiation – Human Exposure) Standard 2003. This has implications for public safety, especially in confined areas, such as cafes or restaurants.
- In light of the disruptive nature of PMTS jamming devices, there are few legitimate uses for such devices. Such devices are also at risk of being used in connection with criminal or terrorist activities. For these reasons also, the supply of such devices should be prohibited.
It is proposed to list the above reasons as a schedule to the PMTS Jamming Devices Prohibition.