Transcription — Overview of the Radiocommunication Act, R.S.C. 1985, c R-2
This presentation provides an overview of the key principles and provisions of Canada's Radiocommunication Act. The Radiocommunication Act, along with the Broadcasting Act and the Telecommunications Act, is the subject of the work of the Broadcasting and Telecommunications Legislative Review Panel appointed by the Government on June 6, 2018.
In this presentation, we will briefly review the statutory definition of radiocommunication, more commonly known as wireless spectrum or radio spectrum.
We will then consider why the use of radiocommunication in Canada is regulated and the increasing relevance of wireless communication to the way that Canadians work, live and play.
The balance of the presentation is devoted to how the use of radiocommunication is regulated in Canada pursuant to the Radiocommunication Act.
An important preliminary question is what is a "radiocommunication"? Pursuant to section 2 of the Radiocommunication Act, the term "radiocommunication" or "radio" is defined as meaning "any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by means of electromagnetic waves of frequencies lower than 3,000 GHz propagated in space without artificial guide."
There are three things about the definition that are worth noting.
- The first point to make is that radiocommunication is "any transmission, emission or reception…of any nature" as long as it is "without artificial guide." The term "artificial guide" has been interpreted to mean physical things, such as wires or cables. Therefore, if the transmission, emission or reception is achieved using such things as wires or cables, then it does not constitute a radiocommunication. Hence, radiocommunication is often described or is synonymous with a "wireless" communication.
- The second point is that radiocommunication is limited to electromagnetic waves of frequencies lower than 3,000 GHz, which is where infra-red spectrum starts.
- The third point is that radiocommunication refers to the means of transmission as opposed to the content or nature of the transmission. For example, radiocommunication transmission facilities are used to provide both broadcasting and telecommunications services.
Wireless technologies play an essential role in an increasing range of the activities of everyday life.
Examples of radio devices that operate using radiocommunication facilities include:
- Cordless telephones
- Garage door openers
- Wi-Fi routers
- Mobile phones
- RFID Tags
Examples of services that are provided via radiocommunication frequencies include:
- Traditional broadcasting such as AM and FM radio and TV
- Satellite services, such as Direct-To-Home services, satellite radio, and Internet access services delivered via satellite
- Commercial mobile wireless services
- Aeronautical and maritime navigation services
- Military and other government uses
- Police, fire and ambulance services
- Amateur radio—ham radio
The wireless sector is an important and growing sector of economic activity in Canada.
With the rapid and ongoing pace of advancements in wireless technologies, wireless services are reshaping the way that people live and work.
Radiocommunication spectrum is all around us, but it is finite. Because it is finite and relatively scarce, it is considered a public resource. As a public resource, it is managed by the Government in the public interest.
The Radiocommunication Act is Canada's framework legislation for the management of radiocommunication transmission facilities and radio apparatus.
Subsection 5(1.1) of the Radiocommunication Act provides that the Minister of ISED "may have regard to the objectives of the Canadian telecommunications policy set out in section 7 of the Telecommunications Act" in exercising his powers under the Radiocommunication Act. Subsection 5(1.1) of the Radiocommunication Act was added in 1993.
Section 3 deals with the scope of application of the Act.
Subsection 3(1) states that the Radiocommunication Act is binding on Her Majesty the Queen in right of Canada and on Her Majesty the Queen in right of the Provinces, subject to Governor in Council's power to exempt any federal office by way of an order in council. A number of exemption orders exempting the Royal Canadian Mounted Police, the Department of National Defence and the Government of Canada from the licensing requirement and the prohibitions against the interception and decoding of wireless communications have been promulgated pursuant to subsection 3(1).
Subsection 3(3) sets out the geographic scope of application of the Radiocommunication Act. It specifies that in addition to applying "within Canada" as defined at section 35 of the Interpretation Act, the Radiocommunication Act applies:
- on board Canadian-registered or Government-owned ships, vessels or aircraft;
- on board any Canadian-controlled spacecraft; and
- on-board any platform, rig, structure or formation situated on the continental shelf of Canada.
Section 4 of the Radiocommunication Act sets out four core prohibitions central to the operation of the statute.
Section 4 prohibits:
- The installation, operation or possession of radio apparatus of most types except under a radio authorization issued under the Act
- The manufacture, importation, distribution, lease, offer for sale or sale of radio apparatus, interference-causing equipment or radio-sensitive equipment that must be certified as technically acceptable otherwise than in accordance with such a certificate
- Thirdly, section 4 prohibits the manufacture, importation, distribution, lease, offer for sale or sale of radio apparatus, interference-causing equipment or radio-sensitive equipment that must comply with technical standards established under the Act, unless the apparatus or equipment complies with those standards
- And finally, section 4 prohibits the installation, use, possession, manufacture, importation, distribution, lease, offer for sale or sale of a jammer.
It is important to note that the prohibition in subsection 4(1) against the installation, operation, and possession of radio apparatus without a radio authorization does not apply to:
- radio apparatus that is capable only of the reception of broadcasting that is not a distribution undertaking, namely radio and television subscriber terminals, antennae and dishes; and
- exempt radio apparatus, more on which will be said later in this presentation.
Section 4 serves as the foundation upon which the Minister of ISED's powers to licence the use of radiocommunication transmission facilities in Canada and to enforce technical certification requirements and technical standards is built.
The Radiocommunication Act at section 9 provides for a number of additional and important prohibitions against:
- 9(1)(a)—the transmission of false or fraudulent messages
- 9(1)(b)—interference with or obstruction of any radiocommunication without lawful excuse
- 9(1)(c) and (d)—the operation of apparatus to receive or re-transmit decoded subscription broadcast programming signals or encrypted network feeds except as authorised by the lawful distributor of the signal or feed
- 9(1.1), 9(2) and 9(3)—the use and divulging of radiocommunications other than broadcasting, except as permitted by the originator of the radiocommunication.
The provisions prohibiting decoding of encrypted subscription broadcast programming signals or encrypted network feeds were added to the Radiocommunication Act in 1991 to address the emergence of grey and black market broadcasting satellite reception dishes. These provisions are the most cited and used provisions of section 9.
However, the remaining provisions contain important if lesser-known prohibitions against fraudulent use or interception of radiocommunications.
The Minister of ISED is responsible for spectrum planning, the allocation of spectrum to specific uses or services, and the assignment of spectrum to specific users.
As expressly contemplated by subsection 3(4) of the Radiocommunication Act, the Minister of ISED has delegated many of his powers to officials in the Department of Innovation, Science and Economic Development Canada.
Pursuant to section 7, on an exceptional basis, the Government of Canada has the power to assume possession of radio stations and to require their exclusive use.
At the present time, the CRTC has the power to regulate the terms and conditions upon which the broadcasting and telecommunications services that are provided using radiocommunication are offered to the public.
However, under the Radiocommunication Act, the CRTC has no formal role in respect of spectrum planning, allocation and use.
Section 5 of the Radiocommunication Act sets out the powers of the Minister of ISED to issue radio apparatus authorizations, spectrum licences and radio apparatus certificates, subject to such terms and conditions as the Minister may establish or amend from time to time.
As you will see from examining section 5 of the Radiocommunication Act, the Minister of ISED has a wide range of powers and responsibilities in respect of the use of radiocommunications in Canada.
Next, we have section 6 of the Radiocommunication Act, which deals with powers of the federal Cabinet in relation to radiocommunication matters, including:
- Section 6(1)(a)—respecting technical requirements and technical standards in relation to radio apparatus, interference-causing equipment and radio-sensitive equipment
- Section 6(1)(b)—prescribing the eligibility of persons to be licensees
- Section 6(1)(g)—prescribing radio apparatus, interference-causing equipment and radio-sensitive equipment or classes thereof in respect of which a technical acceptance certificate is required
- Section 6(1)(l)—prescribing tariffs of fees associated with radio authorizations
- And Section 6(1)(m)—prescribing radio apparatus or classes thereof that are exempt from the application of the prohibition at subsection 4(1) of the Act.
Radio spectrum does not respect borders. Thus, the specific uses of radio spectrum for different radiocommunication services are first "allocated" internationally and thereafter, nationally.
The Department of ISED participates in international discussions in forums like CITEL and the ITU.
International allocations are set out in the ITU's Radio Regulations and are determined at "World Radio Conferences," which are held every 3 years.
For example, the Department of ISED is preparing for the next World Radiocommunications Conference in 2019 where spectrum bands for 5G are expected to be identified globally.
The Department of ISED works to ensure that there is sufficient spectrum available for private, commercial, consumer, defence, national security, scientific and public safety applications and services that benefit all Canadians.
For example, the Department of ISED considers:
- the increasing use of data by mobile devices like smartphones, tablets and laptops;
- it also considers the needs of broadcast TV, global positioning systems, systems to communicate with ships and aircraft, satellite imagery systems and systems that collect information about our climate; and
- ensuring that there is sufficient spectrum available in Canada for 5G.
The Department engages in public consultation processes to solicit comments and inputs from stakeholders.
The Canadian Table of Frequency Allocation, which is amended from time to time by the Department, reflects the current Canadian allocations of spectrum in the entire radiocommunication frequency ranges.
This slide provides a graphical representation of the Canadian Table of Frequency Allocations, as published by the Department of ISED.
Radio spectrum is a public resource. No private companies own the resource. Applicants must apply to the Minister of ISED for authorizations to use the resource.
The Department of ISED uses different tools to assign spectrum depending on the extent of demand or the nature of the service:
- First-come, first serve licensing procedures are used where supply of spectrum is adequate to meet demand.
- Currently, first-come first-served procedures are used to issue satellite service licences and licences for over-the-air broadcasters.
- Competitive licensing processes are used when the demand for spectrum is perceived to be greater than the spectrum available. There are two types of competitive licensing processes that are used by ISED:
- Spectrum auction processes and
- Comparative selection processes.
Auctions processes are used when the Minister of ISED is confident that market forces can be relied upon to select licensees consistent with the public interest. Auctions will not be used where the licensing of spectrum involves priority users of spectrum, such as the Department of National Defence, public safety users, or essential government operations. Spectrum auctions have not thus far been used in Canada for licensing of satellite spectrum/orbital positions.
In a comparative selection process, the criteria that will generally be used include:
- Eligibility to hold a licence
- Benefits to Canadians
- Securing services/capacity for underserved communities, and
- Viability of business, technical or financial plans.
This slide sets out past and upcoming spectrum auctions for terrestrial mobile spectrum. It also sets out approximate revenues generated in each of these past auctions.
And this slide sets out the years and select spectrum bands that have been assigned by the Minister of ISED using comparative selection processes over the past 35 years.
Spectrum licences can be issued for terms of 20 years and are subject to conditions of licence established by the Minister. Radio licences are generally issued for terms of one year and are renewable upon payment of the applicable licence renewal fee.
Both spectrum licences and radio licences are subject to terms and conditions of licence established by the Minister of ISED.
Spectrum licences typically include conditions relating to minimum coverage and deployment requirements. Such conditions are included to ensure that the public spectrum resource is used to benefit Canadian consumers, businesses, and public institutions wherever they live and work, including in rural and remote communities.
All mobile terrestrial licences contain a condition of licence that mandates the sharing of antenna tower and sites and prohibits exclusive arrangements. Such conditions are included to reduce the unnecessary proliferation of antenna towers and sites and to promote efficient and effective mobile wireless deployment. In the 5G era, with the anticipated acceleration of small cell antennas to support new 5G services, these conditions of licence will become even more relevant.
Mobile wireless spectrum licences are subject to a condition of licence that requires licensees to make their networks intercept capable in accordance with the Solicitor General's Enforcement Standards for Lawful Interception of Telecommunications.
As noted above, pursuant to paragraph 6(1)(m) of the Radiocommunication Act, the federal Cabinet has the power to pass regulations exempting prescribed radio apparatus from the authorization requirements of subsection 4(1).
The Radiocommunication Regulations contain a number of exemptions, including exemptions for:
- Radio apparatus used by CRTC-licensed broadcasting undertakings
- And Low-power devices that present little risk of interference.
Low-power radio devices, including devices that utilise licence-exempt Wi-Fi and Bluetooth technologies, are increasing in number. Where previously, households typically only used remote garage-door openers on an unlicensed basis, today, many households are adopting:
- Wi-Fi-based Internet routers
- Home security/locking systems
- And wireless stereo and communications systems.
Such radio devices are becoming integral to Canadians' lives and are operating on an unlicensed basis.
The fact that these devices operate on an unlicensed basis has meant that they are:
- Not subject to any conditions of licence
- Not protected from harmful interference from other radio operations.
In the future, we expect an even greater number of devices to communicate wirelessly with each other and with users.
Potentially huge numbers of connected devices will require access to spectrum and interference management outside the traditional regulatory licensing model. A question arises as to whether we should consider alternatives to licence exemptions to address issues such as congestion and interference, security and privacy?
As noted already in this presentation, section 4 of the Radiocommunication Act provides that no devices are allowed to be sold, etc. in Canada without meeting applicable technical standards, testing, labelling and in some cases, certification requirements.
These requirements address, among other things, interference management and human exposure limits.
The Radiocommunication Regulations provide that Technical Acceptance Certificates are to be issued by the Minister of ISED. With the anticipated proliferation of radio apparatus in the era of 5G and Internet of Things, we may need to explore alternatives to Ministerial certification as a tool for ensuring technical compliance.
Pursuant to paragraph 6(1)(l) of the Radiocommunication Act, the Governor in Council can establish fees:
- for radio authorizations, applications therefor and examinations or testing in relation thereto; and
- for services provided by the Department of ISED relating to spectrum management.
Currently, the Radiocommunication Regulations prescribe fees for certain specified types of radio licences.
Inspectors appointed under the Radiocommunication Act are empowered to inspect equipment regulated under the Radiocommunication Act. They can also request information to verify that required certifications have been obtained and to verify standards compliance.
In 2014, section 15.1 and following were added to provide that contraventions of certain provisions of the Radiocommunication Act constitute "violations" that would make the persons contravening these certain provisions liable to significant administrative monetary penalties, also known as "AMPs".
Violations of the following can lead to the imposition of AMPs:
- Subsection 4(1)—the prohibition against installing, operating or possessing a radio apparatus without a radio authorization
- Subsection 4(3)—the prohibition against the manufacture, importation, distribution, lease, offer for sale or sale of technically non-compliant radio apparatus, interference-causing equipment or radio-sensitive equipment
- Subsection 4(4)—the prohibition against the installation, use, possession, manufacture, importation, distribution, lease, offer for sale or sale of a jammer.
- And finally, subsection 5(1.5)—the obligation to comply with spectrum auction procedures, standards, and conditions.
This has been a high-level overview of the Radiocommunication Act, many of the basic tenets and provisions of which date back to the 1930s when the first Radio Act was passed.
With the increasing importance of wireless communications to the daily lives of Canadians, the Radiocommunication Act will be an important component of the Government's oversight of the communications sector.
The Broadcasting and Telecommunications Legislative Review Panel's task is to review this legislation, along with the Telecommunications Act and the Broadcasting Act to ensure that the legislative framework for the communications sector remains relevant for the next decades of the 21st century.
We welcome your input.