Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 4th October, 2019.

The Commission for Communications Regulation, in exercise of the powers conferred on it by section 6 (1) of the Wireless Telegraphy Act, 1926 (No. 45 of 1926) as substituted by section 182 of the Broadcasting Act 2009 (No. 18 of 2009), and with the consent of the Minister for Communications, Climate Action and Environment pursuant to section 37 of the Communications Regulation Act 2002 (No. 20 of 2002), hereby makes the following Regulations:

Citation

1. These Regulations may be cited as the Wireless Telegraphy (400 MHz Band Licences) Regulations 2019.

Interpretation

2. (1) In these Regulations:

“400 MHz Band” means the part of the radio frequency spectrum consisting of the 410 – 414 MHz / 420 – 424 MHz sub-band;

“400 MHz Band Licence” means a licence in the form set out in Schedule 1 to keep and have possession of Apparatus in the State in accordance with and subject to the terms and conditions contained in the Licence and Schedule 2;

“Act of 1926” means the Wireless Telegraphy Act 1926 (No. 45 of 1926);

“Act of 1972” means the Wireless Telegraphy Act, 1972 (No. 5 of 1972);

“Act of 2002” means the Communications Regulation Act 2002 (No. 20 of 2002);

“Apparatus” means apparatus for wireless telegraphy as defined in Section 2 of the Act of 1926 for terrestrial systems that utilise radio frequencies in the 410 – 414 MHz / 420 – 424 MHz sub-band;

“Authorisation Regulations” means the European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2011 (S.I. 335 of 2011);

“Award” means the competitive award procedure used by the Commission for the purpose of granting individual rights of use for radio frequencies in the 400 MHz Band, as detailed in the Information Memorandum;

“Award Rules” means the rules and procedures relating to the Award as set out in the Information Memorandum and its Annexes;

“Base Station” means Apparatus connected to a network, which provides a Radiocommunication Service using the 400 MHz Band;

“Commission” means the Commission for Communications Regulation established under the Act of 2002;

“Commencement Date” means the date specified in a Licence upon which the Licence comes into effect;

“CPI” means the Consumer Price Index as published from time to time by the CSO;

“CPI Adjustment” means a negative or positive adjustment to a Spectrum Usage Fee, calculated using the CPI according to the methodology set out in the Information Memorandum;

“CSO” means the Central Statistics Office of Ireland or its successor;

“Electronic communications network” and “electronic communications service” have the meanings assigned to them in the Framework Regulations;

“Equivalent Isotropically Radiated Power” (EIRP) means the product of the power supplied to the antenna and the antenna gain in a given direction relative to an isotropic antenna;

“Frequency Division Duplex” means Frequency Division Duplex.

“Framework Regulations” means the European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 (S.I. 333 of 2011);

“Harmful Interference” has the meaning set out in the Framework Regulations;

“Information Memorandum” means the document published by the Commission on 30 August 2019 and bearing the Commission Document number 19/80 and which details the processes and procedures the Commission will follow in running the Award, as may be updated from time to time;

“Licence” means a non-exclusive licence granted under section 5 of the Act of 1926 in accordance with and subject to the matters prescribed in these Regulations to keep and have possession of Apparatus;

“Licensee” means the holder of a Licence;

“Lot” means a 2 × 3 MHz block of spectrum or a 2 × 100 kHz block of spectrum in the 400 MHz Band, as appropriate;

“Network Utility Operator” means:

• in the electricity sector -

(1) A person that has been granted a licence by the Commission for Regulation of Utilities under section 14 of the Electricity Regulation Act 1999 , as amended:

- to discharge the functions of the transmission system operator;

- to discharge the functions of the transmission system owner;

- to discharge the functions of the distribution system operator;

- to discharge the functions of the Distribution System Owner.

• in the gas sector –

(2) the company, or a subsidiary of the company, the functions of which are laid out in section 8 of the Gas Act 1976 and in section 11 of the Gas (Interim) (Regulation) Act 2002 ; and

• in the water sector –

(3) The private company limited by shares formed by virtue of section 4 of the Water Services Act 2013 as amended.

“non-exclusive” in relation to a Licence means that the Commission is not precluded from authorising the keeping and having possession by persons other than the Licensee, on a Non-interference and non-protected basis, of apparatus for wireless telegraphy in the radio frequency spectrum specified in the Licence;

“Non-interference and non-protected basis” means that the use of Apparatus is subject to no Harmful Interference being caused to any Radiocommunication Service, and that no claim may be made for the protection of Apparatus used on this basis against Harmful Interference originating from Radiocommunication Services;

“Radio Equipment Regulations” means the European Union (Radio Equipment) Regulations 2017 ( S.I. No. 248 of 2017 );

“Radiocommunication Service” means a service as defined in the Radio Regulations of the International Telecommunication Union involving the transmission, emission or reception of radio waves for specific telecommunication purposes;

“Reserve Price” means the relevant price as detailed in Schedule 2;

“Smart Grid” means advanced delivery systems for utility services (electricity, gas and water) from sources of generation and production to key elements in the grid networks and includes all supervisory and control necessary for their effective management. For the avoidance of doubt, this definition does not include the use of smart metering, which consists of devices located at premises that record energy, water and gas usage and provide two-way electronic communication between consumers and the grid;

“Spectrum Access Fee” means a once-off upfront fee paid to the Commission by a Winning Bidder at the conclusion of the Award and in advance of being granted a 400 MHz Band Licence;

“Spectrum Usage Fee” means an annual fee paid to the Commission by a Licensee for its 400 MHz Band Licence;

“Third Party Radio” means radio apparatus used for the provision of Radiocommunication Services, mainly, but not exclusively, to third parties;

“Winning Bidder” has the meaning set out in the Information Memorandum; and

“Working Day” means a day which is not a Saturday or Sunday or a public holiday.

(2) A word or expression that is used in these Regulations and that is also used in the Act of 1926 has, unless the context otherwise requires, the same meaning in these Regulations that it has in that Act.

(3) A word or expression that is used in these Regulations and that is also used in the Act of 2002 has, unless the context otherwise requires, the same meaning in these Regulations that it has in that Act.

(4) A word or expression that is used in these Regulations and that is also used in the Framework Regulations or in the Authorisation Regulations has, unless the context otherwise requires, the same meaning in these Regulations that it has in those Regulations.

(5) The Interpretation Act 2005 (No. 23 of 2005) applies to these Regulations.

Licences to which these Regulations apply

3. These Regulations apply to: 400 MHz Band Licences.

Application for the Grant and Form of Licences

4. (1) A Winning Bidder may submit an application to the Commission to be granted a Licence, to include the assignment of such rights of use for radio frequencies in the 400 MHz Band as have been determined in accordance with the Information Memorandum and the outcome of the Award and subject to payment by the Winning Bidder of all applicable fees in respect of the relevant 400 MHz Band Licence.

(2) An application for a Licence under paragraph (1) shall be in writing and shall be in such form as may be determined by the Commission from time to time and the Commission may grant a Licence in accordance with the relevant provisions of the Authorisation Regulations.

(3) A Winning Bidder who applies to be granted a Licence shall furnish to the Commission such information as the Commission may reasonably require for the purposes of its functions under these Regulations and the Authorisation Regulations and the Commission may refuse to grant a Licence to any Winning Bidder who, without reasonable cause, fails to comply with a requirement to furnish any such information.

(4) A Licence to which these Regulations apply shall be in the form specified in the Schedules to these Regulations (as applicable), with such variation, if any, whether by addition, deletion or alteration as the Commission may determine from time to time or in any particular case.

Duration of Licences

5. The Commencement Date of a 400 MHz Band Licence shall be such date as may be specified by the Commission, and unless it has been withdrawn or had its duration reduced under Regulation 7, a 400 MHz Band Licence shall be of no more than fifteen years duration such that it shall expire in full on the fifteenth anniversary of its Commencement Date.

Conditions of Licences

6. (1) Any Licensee that is granted a Licence under these Regulations and to which these Regulations apply shall:

(a) ensure that it complies with the conditions in its Licence and with these Regulations;

(b) ensure that all Apparatus installed, maintained, possessed or kept under the Licence is capable of operating within the radio frequencies specified in the Licence;

(c) ensure that all Apparatus worked or used under the Licence is worked or used only in the radio frequencies specified in the Licence;

(d) comply with any rules to prevent spectrum hoarding as may be laid down by the Commission under the Framework Regulations;

(e) ensure that it makes payment of all applicable Licence fees;

(f) furnish to the Commission such information in respect of the Licence as may be required by the Commission from time to time;

(g) ensure that all Apparatus under the Licence, or any part thereof, is installed, maintained, and used so as not to cause Harmful Interference;

(h) ensure that the Apparatus under the Licence, or any part thereof, complies with the Radio Equipment Regulations;

(i) comply with any special conditions imposed under section 8 of the Act of 1972;

(j) upon becoming aware of any event likely to materially affect its ability to comply with these Regulations, or any conditions set out or referred to in any Licence, notify the Commission of that fact in writing no later than 5 Working Days upon becoming aware;

(k) comply with all obligations under relevant international agreements relating to the use of Apparatus or the frequencies to which they are assigned;

(l) any Licensee that is granted a 400 MHz Band Licence may use it only to install, maintain, possess, keep, work or use wireless telegraphy Apparatus which utilise Frequency Division Duplex technology;

(m) ensure that on each anniversary of the initial date of granting of a 400 MHz Band Licence, the Licensee concerned shall submit up to date information to the Commission, including the locations of apparatus (both base stations and associated numbers of connected devices); and

(n) ensure it complies with any non-ionising radiation exposure standards adopted and published by the International Commission for Non-Ionising Radiation Protection (ICNIRP) or its successors from time to time, any radiation exposure standards of the European Committee for Electrotechnical Standards and any other radiation exposure standards specified by law;

(i) emissions from apparatus operated by the Licensee ensure relevant non-ionising exposure limits specified by the guidelines published by ICNIRP are not exceeded; and

(ii) apparatus operated by the Licensee is not installed or operated at a location in such a manner as to cause the aggregate of non- ionising radiation exposure to exceed the limits specified by the guidelines published by ICNIRP.

Enforcement, Amendment, Withdrawal and Suspension

7. (1) The Commission shall enforce compliance with the conditions attached to any Licence in accordance with the Authorisation Regulations.

(2) The Commission may amend any Licence from time to time in accordance with the Authorisation Regulations.

(3) A Licence may be suspended or withdrawn by the Commission in accordance with the Authorisation Regulations.

(4) A Licence may be suspended or withdrawn by the Commission if, after the grant of a Licence pursuant to these Regulations, it emerges that the Licensee has breached the Award Rules.

Licence Fees

8. (1) The fees payable to the Commission for a 400 MHz Band Licence granted on foot of the Award shall consist of a single Spectrum Access Fee and annual Spectrum Usage Fees.

(2) The amount, in Euros, of all Spectrum Access Fees and Spectrum Usage Fees for any Licence shall be determined in accordance with the Information Memorandum and/or the outcome of the Award, and are detailed in Schedule 2 of these Regulations.

(3) The Spectrum Usage Fee for any period of less than one year shall be calculated on a pro rata daily basis for such period.

(4) The Spectrum Usage Fee for any 400 MHz Band Licence shall be calculated on a pro rata daily basis in accordance with the Information Memorandum and with Schedule 2 of these Regulations.

(5) All Spectrum Access Fee and Spectrum Usage Fees, less any applicable adjustments or refunds, shall be paid to the Commission on the dates specified by the Commission, and in the manner specified in the Information Memorandum and in Schedule 2 of these Regulations.

(6) If a 400 MHz Band Licence is suspended or withdrawn, the Licensee shall not be entitled to be repaid any part of the Spectrum Access Fee or Spectrum Usage Fee paid by the Licensee under this Regulation, but shall still be liable to pay any sums, including interest, that are outstanding.

(7) If the amount of radio frequency spectrum specified in a 400 MHz Band Licence is reduced, the Licensee may be entitled to a refund of the relevant Spectrum Usage Fees already paid in the relevant year and to a reduction on future Spectrum Usage Fees, on a pro rata basis having regard to the nature of the amendment. The Licensee shall not be entitled to any refund of its Spectrum Access Fee.

(8) If the duration of a 400 MHz Band Licence is reduced at the request of the Licensee, the Licensee may be entitled to a refund of Spectrum Usage Fees already paid in the relevant year, on a pro rata basis having regard to the reduced duration. The Licensee shall not be entitled to any refund of its Spectrum Access Fee.

(9) Failure by a Licensee to pay a required fee under this Regulation on or before the date it falls due shall constitute non-compliance by the Licensee concerned with these Regulations and the Commission, in respect of such non-payment of a fee, may take enforcement action in accordance with Regulation 7 and may take steps to recover the amount due in accordance with paragraphs 11 and 12 of this Regulation.

(10) Where a fee or part of a fee is not paid in time, the Licensee concerned shall pay to the Commission interest on the fee or part thereof that was or is outstanding. Interest shall accrue from the date when such fee or part thereof fell due until the date of payment of such fee or part thereof and shall be calculated at the same rate payable in respect of late payments in commercial transactions pursuant to the European Communities (Late Payment in Commercial Transactions) Regulations 2012, as amended ( S.I. No. 580 of 2012 ).

(11) Any fee payable and owed by a Licensee under this Regulation may be recovered by the Commission from the Licensee as a simple contract debt in any court of competent jurisdiction.

Licensee to satisfy all legal requirements

9. (1) Licences granted pursuant to these Regulations do not grant to the Licensee any right, interest or entitlement other than to keep, have possession of, install, maintain, work and use Apparatus for wireless telegraphy for terrestrial systems capable of providing electronic communications services, in the State.

SCHEDULE 1 – 400 MHz BAND LICENCE

WIRELESS TELEGRAPHY ACT, 1926

Wireless Telegraphy (400 MHz Band Licences) Regulations

The Commission, in exercise of the powers conferred on it by section 5 of the Wireless Telegraphy Act, 1926 (No. 45 of 1926) grants the following licence to [INSERT LICENSEE NAME] of [INSERT LICENSEE ADDRESS] (“the Licensee”). The Licensee is hereby authorised to keep, have possession of, install, maintain, work and use apparatus as specified in Part One of this Licence subject to the Licensee observing the conditions contained in this licence and in the Wireless Telegraphy (400 MHz Band Licences) Regulations, 2019 ( S.I. No. of 2019 ).

This Licence shall come in to effect on DD/MM/YYYY and subject to revocation, suspension or withdrawal, expires on DD/MM/YYYY.

Signed: ___________________________________________________

For and on behalf of the Commission for Communications Regulation

Date of Issue: _______________________________________________

Part One

Frequency Assigned to Licensee

Frequency Assigned to Spectrum

From _____ MHz to _____ MHz

Part Two

The Apparatus to which this Licence applies

Part Three

Apparatus Location and Details

Part Four

Licence Conditions

Section One - Technical Conditions

1. Technical Conditions

(1) The EIRP limit is 50 W. Licensees shall ensure that the minimum EIRP required to maintain the network should be used at all times.

(2) The maximum mean in-block power for user equipment, as specified in table 3, is a limit. Licensees shall ensure that the minimum EIRP required to maintain a network should be used at all times.

(3) The Licensee shall comply with all memoranda of understanding agreed from time to time between the Commission and the national regulatory authority responsible for communications matters in the UK, the Office of Communications (“Ofcom”), or its successor, in relation to the 400 MHz Band.

(4) A Licensee must take all practicable steps to avoid Harmful Interference to the radio astronomy service and any other adjacent licensees.

(5) In the event of Harmful Interference, the affected Licensees shall exchange information with a view to resolving the Harmful Interference by mutual consent. Where resolution cannot be agreed between the affected Licensees, ComReg may mediate in accordance with its statutory functions, objectives and duties.

(6) If the address of the Licensee or the person to whom the Licence has been assigned changes, the Licensee or assignee shall, as soon as possible, notify the Commission in writing of the change.

Base Stations and User equipment

(7) The technical conditions defined in the tables below shall apply to Base Stations and user equipment:

Table 1: BS Frequency range of out-of-block emissions (1.4 MHz, 3 MHz and 5 MHz channel bandwidth)

Table 2: BS Frequency range of out-of-block emissions (1.25 MHz channel bandwidth)

Table 3: User Equipment transmitter characteristics

Table 4: User Equipment maximum unwanted emission levels (1.4 MHz, 3 MHz and 5 MHz channel width)

Table 5: User Equipment maximum unwanted emission levels (1.25 MHz channel bandwidth)

(8) The technical requirements for channel bandwidths of between 6.25 kHz and 200 kHz are as follows:

a. Wanted channel effective radiated power: 31 dBm for user equipment and 50 W for Base Station equipment.

b. Adjacent and alternate adjacent channel power: Power in upper and lower channels, as well as in the lower and upper alternate adjacent channels, shall not exceed a value of 60 dBc below the transmitter power level without the need to be below the -36 dBm e.r.p

c. Unwanted emissions in the spurious domain: During operation shall not exceed -36 dBm. During standby shall not exceed -57 dBm.

Section Two - Rollout Conditions for spectrum used for the provision of wireless connectivity for Smart Grid

1. Definitions

The following additional definitions shall apply to this licence:

“Utility Network” means the number and locations of equipment amenable to monitoring or remote control in a Smart Grid network as detailed in the Winning Bidder’s application to participate in the 400 MHz Award process.

2. Minimum rollout requirements

(1) A Network Utility Operator shall, by the seventh anniversary of the commencement of its Licence, work and use spectrum assigned under its Licence for the provision of wireless connectivity for Smart Grid to cover at least 50% of its Utility Network, excluding equipment already adequately connected by existing fixed wireless communications.

3. Reporting of Compliance

(1) The Licensee shall submit to the Commission an annual compliance report on rollout within 28 days of each anniversary of the commencement of the Licence. The Commission reserves the right to publish any information provided by the Licensee, subject to the provisions of ComReg’s guidelines on the treatment of confidential information.

(2) The information required for this annual compliance report shall be agreed with the Commission in advance and the compliance report shall have sufficient detail and granularity to allow the Commission to verify the contents of the Licensee’s annual compliance report.

(3) Failure by the Licensee to submit the annual compliance report to the Commission within the specified time period shall be deemed to be non-compliance by the Licensee with both the reporting obligations and the relevant rollout obligation.

(4) On the seventh anniversary of the licence, using the compliance report the Commission will assess as to whether or not the Licensee has met the relevant rollout obligation specified in Section 2 above. Where the Licensee has failed to meet the relevant rollout obligation, the Licensee shall provide adequate reasons and supporting information for same.

(5) The Commission reserves the right to inspect any Apparatus installed by a Licensee at any time to ensure that the system is configured and operating in accordance with its Licence conditions and the Licensee shall facilitate any such inspections by the Commission within such time as may be specified by the Commission.

Part Five (for spectrum not used for the provision of wireless connectivity for Smart Grid)

Section 1 – Third Party Conditions

(1) Where a 400 MHz Band Licensee allows a third party to keep, possess, install, maintain, work and use apparatus for the purpose of Third Party Radio services in 400 MHz Band spectrum:

• the 400 MHz Band Licensee will ensure that the third party complies with the conditions contained within these Regulations and the Schedule 1.

• the 400 MHz Band Licensee may not, without the consent of the Commission (which shall not be unreasonably withheld) assign the Licence or any of the powers, duties or functions conferred by it or otherwise transfer any of the rights or obligations conferred by it.

Section Two - Rollout Conditions

4. Definitions

The following additional definitions shall apply to this licence:

“Area” consists of Area 1 (Carlow, Dublin, Kildare, Kilkenny, Laois, Longford, Louth, Meath, Offaly, Westmeath, Wexford, and Wicklow), Area 2 (Clare, Cork, Kerry, Limerick, Tipperary, and Waterford), and Area 3 (Cavan, Donegal, Galway, Leitrim, Mayo, Monaghan, Roscommon and Sligo).

5. Minimum rollout requirements

(1) For each Area, a Licensee shall achieve and maintain 10 Base Stations in each Area by the third anniversary of the Licence using spectrum assigned under its Licence.

(2) Where a Licensee has a Base Station in one Area and this Base Station is worked and used to provide service to another Area, the Base Station will be counted as being worked and used in the Area it serves (and not the Area in which it is located).

(3) Where a Licensee has a Base Station in one county and this Base Station is worked and used to provide services to more than one Area (i.e. the Area in which it is located in and also neighbouring Areas), the Base Station will only be counted as a single Base Station for the purposes of meeting the rollout obligation and the Licensee may chose the Area in which such a Base Station is to be counted for this purpose.

6. Reporting of Compliance

(1) The Licensee shall submit to the Commission an annual compliance report on rollout within 28 days of each anniversary of the commencement of the Licence. The Commission reserves the right to publish any information provided by the Licensee, subject to the provisions of ComReg’s guidelines on the treatment of confidential information.

(2) The information required for this annual compliance report shall be agreed with the Commission in advance and the compliance report shall have sufficient detail and granularity to allow the Commission to verify the contents of the Licensee’s annual compliance report.

(3) Failure by the Licensee to submit the annual compliance report to the Commission within the specified time period shall be deemed to be non-compliance by the Licensee with both the reporting obligations and the relevant rollout obligation.

(4) On the third anniversary of the licence, using the compliance report the Commission will assess as to whether or not the Licensee has met the relevant rollout obligation specified in Section 5 above. Where the Licensee has failed to meet the relevant rollout obligation, the Licensee shall provide adequate reasons and supporting information for same.

(5) The Commission reserves the right to inspect any Apparatus installed by a Licensee at any time to ensure that the system is configured and operating in accordance with its Licence conditions and the Licensee shall facilitate any such inspections by the Commission within such time as may be specified by the Commission.

SCHEDULE 2 – FEES

Reserve Price

(1) The Reserve Price is set out as follows

• The Reserve Price for a Lot used for used for the provision of wireless connectivity for Smart Grid is €240,000 (two hundred and forty thousand Euro).

• The Reserve Price for each Lot not used for the provision of wireless connectivity for Smart Grid is €8,000 (eight thousand Euro).

Spectrum Usage Fees

(2) The annual Spectrum Usage Fees before CPI Adjustment for a Licence shall be the sum of the Spectrum Usage Fees for each Lot included in that Licence. For each Lot included in a Licence, the Spectrum Usage Fee for a one (1) year Licence period is:

• €39,000 per Lot plus the “CPI Adjustment” for a 400 MHz Band Licence used for the provision of wireless connectivity for Smart Grid; and

• €1,300 per Lot plus the “CPI Adjustment” for a 400 MHz Band Licence not used for the provision of wireless connectivity for Smart Grid.

(3) All Spectrum Usage Fees will be index-linked to the CPI published by the CSO.

(4) The CPI Adjustment for a Spectrum Usage Fee shall be calculated using the month of the Commencement Date as the common base date for the CPI (i.e. CPI = 100). ComReg will also use the most current CPI data available to it at that time.

GIVEN under the Official Seal of the Commission for Communications Regulation

30 September 2019.

GARRETT BLANEY

Chairperson, Commission for Communications Regulation

The Minister for Communications, Climate Action and Environment consents to the making of the foregoing Regulations.

GIVEN under the Official Seal of the Minister for Communications, Climate Action and Environment.

30 September 2019.

RICHARD BRUTON

Minister for Communications, Climate Action and Environment

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations provide for the issue of Licences for apparatus for wireless telegraphy used solely for the provision of Radiocommunications Services in the 400 MHz Band, for the regulation of such apparatus and for the payment of fees by persons granted Licences for that purpose.