By Wayne Wedderspoon
This document has been compiled from many sources, both public and private, including the Internet. It makes no claim to originality, accuracy or completeness of the subject matter concerned.
In 1865 a Scottish physicist, Maxwell, demonstrated mathematically the theory of electromagnetic energy. This was confirmed in 1888 when Heinrich Hertz, a German, caused an electrical discharge between two metal balls spaced very close together. Hertz’s achievement was to project the charge from the space between the balls across a distance of some feet to detection apparatus consisting of a wire loop with a similar gap. Hertz had demonstrated the ability to convert electricity into another form, electromagnetic energy, which could be conducted over distance without wires. This energy came to be known as radio waves, Hertzian waves or simply wireless.1
Many others contributed to the improvement of transmission and reception devices,2 including New Zealander Ernest Rutherford who, in 1894, developed a more sensitive receiver known as a magnetic detector for radio waves.
It was left to a 21-year-old Italian-Irishman, Guglielmo Marconi, to realise the communication possibilities of artificially generated radio wave energy.3 In 1895 he experimented on the family farm near Bologna with a home-made transmitter and receiver and, most importantly, added a telegraph morse key. With this primitive equipment he managed to send the letter ‘S’ in morse over a distance of three kilometres.
The Italian Minister for Post and Telegraph declared that the new technology had no potential for communication purposes so Marconi took his ideas and equipment to England where the British Government backed his work. In 1899 he sent a message across the English Channel, and by 1901 he had spanned the Atlantic. The technology was primitive and the concept of frequency management as a means of enabling simultaneous radio communications was still largely unrealised.
The first official mention of radio in New Zealand is a 17 October 1902 notification to mariners of a list of stations established by the Marconi Wireless Telegraph Company, albeit there were none in the southern hemisphere, let alone New Zealand. Nevertheless the New Zealand Government was reputedly first in the world to take control of the use of the new technology by way of the New Zealand Wireless Telegraphy Act 1903.4
In essence, only the Government was permitted to receive and transmit wireless communications and anyone else who did so without permission was liable to a £500 fine and confiscation of equipment. As Albert Pitt, the Attorney-General, stated to Parliament at the time: “the whole principle of the Bill is that the Government intend to acquire a monopoly of this system in the colony.”
One of the main concerns, as outlined by the Postmaster-General of the day, was that the new wireless telegraphy technology might render the wired telegraphy network obsolete and thereby deprive the Government of revenue.
The first public demonstration of radio in New Zealand was given by the Marconi Company at the 1906 Christchurch International Exhibition. The military and maritime potential of radio was spurred by the Radio-telegraph Convention signed at Berlin on 3 November 1906, which the New Zealand Government ratified the following year.
The first message by wireless from New Zealand to another country was sent on 3 February 1908 from Sir Joseph Ward aboard HMS Pioneer berthed at Wellington. The message was relayed by HMS Powerful in the Tasman Sea to HMS Psyche berthed at Sydney.
In 1909 an Australasian Telegraph Conference was held in Melbourne and this led to a New Zealand Government decision to establish a number of marine radio coast stations at Auckland, Wellington and the Chatham Islands.5
The first station, a 2.5 kilowatt ‘spark’ transmitter, opened on 26 July 1911 and operated from a tower at the General Post Office in Wellington.6 In October of that year,7 the station was transferred to Mount Etako (also known as Mt Wakefield and latterly as Tinakori Hill) where it provided a wireless telegraph service to ships within a 600-mile radius.
Two high-power stations with a range of 1250 miles were also planned, one at Awanui in the north and the other at Awarua near Bluff.8
The frequency of early radio transmitters and receivers was not able to be controlled to any significant degree, thus only one wireless communication at a time could take place in a given geographical area. With the tragic circumstances surrounding the loss of Titanic in 1912,9 it was realised that a management framework for radio transmission and reception was necessary to ensure the potential of the technology could be realised.
Although the upper range of frequencies suitable for wireless communication was unknown, the concept gradually emerged of the radio spectrum10 as a public and economic resource, and licensing the generation of radio waves as a management tool for the prevention of radio interference.
Government regulation of the transmission of radio waves thus had a two-fold purpose: to protect Government revenue (by ensuring there was a Government monopoly on telecommunications), and to organise and allocate frequencies to prevent interference. While the first objective disappeared with the progressive de-regulation of New Zealand telecommunications in the 1980s, spectrum management, albeit within a market allocation framework since 1990, has become increasingly important in maximising the societal benefits and commercial opportunities of radiocommunication technologies.
DEVELOPMENT OF BROADCASTING
By 1907 the work of two men, John Fleming and Lee De Forest, had resulted in the development of a device to amplify and detect weak electrical signals – the vacuum tube (or valve as it was also known). This laid the foundation for radio-telephony and De Forest was quick to see the opportunities. His diary records the following comments: “My present task is to distribute sweet melody broadcast over the city and sea … someday the news and even advertising will be sent out over the wireless telephone.” 11
Both radiotelegraphy and radiotelephony were used during World War I, but the military were slow to relinquish their hold on it for civilian applications. Even home construction of radio receivers was made difficult because valves were not freely available. It wasn’t until the Post and Telegraph Amendment Act of 1920 that provision was made to licence receivers independent of transmitters, and this set the scene for broadcasting as we know it.
In 1921 a Wellington businessman, Charles Forrest, began transmitting gramophone recordings from a room in the Hope Gibbons building. Although he had no formal permit or licence he had a verbal understanding with the Chief Telegraph Engineer such that whenever his transmissions were causing reception problems at the nearby marine radio station, he would cease until the ship-to-shore communication was concluded.
Professor Robert Jack of Otago University became the first licensed broadcaster when, on 17 November 1921, he transmitted the first of a series of concerts that included live music and gramophone recordings. His transmissions were heard as far afield as Auckland.
In July 1922 a radio station commenced in Wellington that was licensed to operate on a wavelength of 275 metres (~1000 kHz). The operators were even invited by the P&T to broadcast the 1922 election results.
In 1923 the Government decided to promote private broadcasting and regulations were introduced which divided the country into regions, specified frequencies and transmitters powers, but banned advertising. The first station licensed under the new regulations was 1YA in Auckland.
A licence, costing 5 shillings, was required to receive broadcast transmissions, and applicants had to supply a character reference and proof of British nationality.
[It appears that a portion of the original article has been lost. -Ed.]
THE NERA REPORT
The contract was won by NERA who noted that the imminent “deregulation of the telecommunications and broadcasting industries on 1 April 1989, and future growth in demand for spectrum will mean [the DTI] will increasingly have to make choices between competing uses and users of spectrum”. The NERA report went on to analyse the costs and benefits of spectrum regulation versus spectrum markets.
NERA noted that “a market’s most conspicuous advantage is that decentralisation allows those parties who have the most information, the individual users, to make the decisions.” More cautiously, NERA also observed that “A market in itself does not solve the potential problem of dominant suppliers of downstream services hoarding spectrum in order to prevent the development of competition … ultimately, the success of the market will depend on the strength of competition law and other appropriate measures to prevent abuse of a dominant position in spectrum ownership.”
In addition to advocating market allocation of spectrum, the NERA report went on to propose a “system of spectrum management and allocation based on tradeable spectrum rights, that is, designed to take advantage of market mechanisms whereever there is good reason to consider that the resultant efficiency gains will be significantly greater than any potential increase in administration, transaction, and enforcement costs.”
NERA proposed a new regime comprising nationwide spectrum bands (for flexibility) and spectrum products (for certainty). The owners of nationwide frequency bands should be able to create spectrum products for specific frequencies within their bands and allocate them to whomsoever the owner wished. NERA envisaged that commercially used spectrum would eventually transition, by way of auctions, from public sector to private sector management over a period of time. Public sector management, either under administrative licensing or spectrum rights, should continue wherever deemed necessary to meet public policy objectives or international treaty requirements.
Within this broad framework NERA made 20 specific proposals, the key ones summarised as follows:
1. Auction Bands
Spectrum bands for auction should be chosen to reflect existing New Zealand allocations and future demand. Where bands are characterised by local use (eg FM broadcasting and mobile radio) spectrum products should be planned to reflect known local demand.
2. Duration Of Rights
On economic grounds alone, spectrum rights should be granted in perpetuity although the efficiency loss associated with fixed period rights is likely to be small if rights for future periods are issued well in advance of the termination of existing rights. If the Government chooses to issue fixed period rights these should take the form of 20 year rights with new rights issued, via an auction, no fewer than 5 years in advance of the time they take effect.
3. Legal Definition
There should be a registration system similar to a land registry.
4. Internationally Determined Distribution
Where spectrum is allocated by international agreement, the Ministry of Commerce (or other Government administered agencies) should continue to plan and administer the bands concerned.
5. Lawful Interference
Where two (or more) right holders exercise their rights in accordance with their respective licences and create unexpected interference, the parties should negotiate a solution to the problem with the costs being borne equally by the parties involved. If there is no technical solution, ‘first-in-time’ rules should apply.
6. Unlawful Interference
In cases where a party is acting unlawfully, that is transmitting other than in accordance with a licence, ajudication should be by the courts alone.
7. Enforcement Role for Ministry
The Ministry should continue to have a role, either directly or by agency authorisation, in the protection of small spectrum users – for example the detection and resolution of electromagnetic compatibility (EMC) requirements and international spectrum agreements are other appropriate roles.
8. Anti-Competitive Behaviour
There is potential for some organisations to ‘dominate the spectrum market and hence stifle competition in the main downstream markets of telecommunications and broadcasting’. Three proposals were made to mitigate this possibility:
- Apply an ‘essential facilities’ doctrine to spectrum property rights,
- Limit the amount and nature of rights that may be acquired by any one organisation at auction,
- The sale of spectrum product licences to facilitate access to spectrum by small users, or to avoid monopoly power (such as might occur with the auction of the VHF TV spectrum bands used by TV1, TV2 and TV3).
Sinet also decided, as a matter of policy, that the Crown should retain spectrum bands and products “to enable social defence and security obligations to be met, with an administered licence and pre-determined resource cost being charged.”
Cabinet considered the NERA report at its meeting on 12 December 1988 12 and agreed to adopt in principle a spectrum management regime providing for “a mixture of administered licences 13 and the creation of property rights in the form of both spectrum products14 and spectrum bands 15 enforceable by statute.”
Drafting priority was given for a Radiocommunications Bill, reflecting the NERA recommendations, to come into effect on 1 April 1989. Cabinet also decided, as a matter of policy, that the Crown should retain spectrum bands and products “to enable social defence and security obligations to be met, with an administered licence and pre-determined resource cost being charged.”
In introducing the Radiocommunications Bill in August 1989, the Rt Hon Jonathan Hunt, Minister of Broadcasting, stated:
The Government’s decision to permit competition in telecommunication network services was implemented on 1 April this year by the Telecommunications Amendment Act 1988. Major changes to the structure of broadcasting were implemented under the BCNZ restructuring legislation enacted late last year, and the Broadcasting Act 1989, which came into force on 1 July. These reforms, as foreshadowed in the Government’s announcements last year, and during the passage of the amendments to the telecommunications and broadcasting legislation, also require the reform of the present legislative management regime for radio spectrum.16
The Bill closely followed the NERA recommendations however a 20-year maximum term, rather than rights in perpetuity, was implemented, and no industry-specific competition measures were adopted.17
The Bill made no specific spectrum provisions to meet the requirements of public safety and security services, public broadcasting, Maori broadcasting or other social policy objectives. Rather, Government decided that these were matters best taken into account at the time when decisions are made to create spectrum rights over particular bands. This flexible approach was considered more appropriate to avoid such services being restricted to particular frequencies or constrained by ‘sunset’ technologies.
While the Bill did not specify any particular allocation process an owner of a management right must use, the Government had already signalled that, as the initial owner of all management rights, it intended to adopt the 2nd price, sealed bid tender method. This was met with some opposition and subsequent auctions based on this method were subject to criticism.18
With the earlier abolition of the Broadcasting Tribunal there was no mechanism for allocating radio and television broadcasting licences. Following the Bill’s enactment by Parliament on 19 December 1989, a media statement was released the next day which stated:
Mr Hunt said that it would take time to bring radio frequencies for all telecommunication and broadcasting services under the new legal rights regime, but that priority would be given to new broadcasting spectrum. Tenders for UHF [Television] frequencies are to be called shortly by the Secretary of Commerce. Expressions of interest for FM and AM sound radio broadcasting frequencies will be evaluated by the Ministry of Commerce in the new year.
During the months preceding the coming into force of the Radiocommunications Act 1989, the Ministry of Commerce had been evaluating public submissions in regard to UHF television, and engineering auction lots accordingly. This enabled the first call for bids to tender for spectrum licences to be released just 3 days following the passage of the legislation.19
Sky Network Television, a pay-TV company, had constructed a transmission network and were anxious for the tender to commence as soon as possible. In keeping with the recommendations of NERA, seven lots were configured as nationwide networks20 while the balance of the lots were individual licences. Sky won four of the nationwide network lots. Not all UHF television spectrum was offered for auction however. A block of frequencies was retained to meet future requirements for non-commercial broadcasting and the promotion of Maori language and culture.
By the time the results of the first auction were announced,21 planning was already well advanced for two further auctions. The first of these was, primarily, the auction of management rights for cellular services. Telecom already had incumbency rights to one of the two AMPS cellular bands and, after various legal actions followed the auction, was allowed to uplift the management rights to the other. Bellsouth and Telstra each acquired the management rights over a GSM cellular band in the same auction.22
The second auction called in 1990 was for AM and FM radio broadcasting licences. This led to a request for an urgent hearing by the Waitangi Tribunal of two claims before it.23 The claimants maintained that the number of frequencies, especially FM, the Government proposed to reserve for promotion of Maori language and culture through broadcasting were inadequate. The Tribunal recommended postponement of the auction, however this was refused by the Government. The claimants commenced action in the High Court and on 21 September 1990 Justice Heron declared that the Crown should postpone the auction for six weeks. This was appealed to the Court of Appeal in October. The majority of the Court found that the Minister could not reasonably have decided to proceed with the auction without first awaiting the report of the Waitangi Tribunal.24
A general election was held in 1990 and the new Minister of Communications, the Hon Maurice Williamson, issued this media release on 18 December 1990:
The tender had been delayed since September as a result of a declaration in the High Court that the Government should consider the Waitangi Tribunal’s recommendations before proceeding further. A key recommendation of the Tribunal had been that the Government provide FM frequencies for Maori broadcasters in Auckland and Wellington. The Government has now considered the Tribunal’s report. Its decision is that the AM/FM tender should proceed. Notwithstanding this decision, I am satisfied that an FM frequency or frequencies giving reasonable coverage to Maoridom could be engineered for Wellington, and possibly for Auckland as well.
Although the auction proceeded, further FM frequencies were reserved nationwide for promotion of Maori language and culture.
REVIEW OF THE RADIOCOMMUNICATIONS ACT
In 1991 the new Government emphasised its policy for telecommunications with the following statement: 25
The objective of the New Zealand Government is efficient markets in telecommunications goods and services. To this end, the Government has adopted policies and promoted statutory measures to facilitate competitive entry into those markets and to maintain the conditions for effective competition.
In April 1994 the Ministry of Commerce released a public discussion paper 26 on the Radiocommunications Act and the Government policies relating to its use. The principal purpose was to examine “the effectiveness of the provisions and mechanisms of the Act in enabling the economic and social benefits from the use of the radio spectrum to be maximised.” 27 The paper posed a number of key questions:
- Does the Act define property rights in a way which facilitates the most efficient use of the radio spectrum?
- Is interference managed in a way which produces the most efficient outcomes?
- Should the Act expressly address the issue of Crown allocation decisions?
- What is the best option for promoting competition in markets for radiocommunication services?
- What is the most effective and efficient approach to the registration of rights under the Act?
- What is the best approach to the regulation of privacy in radiocommunications?
Over the next 18 months the Ministry received and evaluated public submissions and held two workshops28. Aside from the substantive issue of the administrative framework for spectrum rights, submissions and discussions covered a range of other issues. These were summarised in a further public document published by the Ministry of Commerce in December 1995.29 Key issues addressed were:
Term of Rights 30
The report concluded that there is no compelling reason for rights to be limited to a maximum of 20 years.31 Further, it was stated that “rights of indefinite length are more likely to enhance the value of the spectrum over time, and would obviate the need to resolve difficult succession questions in future.”
Competition Safeguards 32
The report concluded that no amendments to the Radiocommunications Act were necessary to restrict the amount of spectrum any one firm could acquire at auction. Such provisions could easily be included in auction rules. The report also concluded that: “Any consideration of the threshold for assessing dominance under the Commerce Act is best undertaken in the context of the Commerce Act, and not separately for radiocommunications. The Ministry is not convinced that the characteristics of radiocommunications are such as to warrant individual treatment. In any case, such matters concern the Commerce Act directly and they are therefore outside the scope of this review.”
The issue of ‘use-or-lose’ was reconsidered.33 While seemingly attractive in principle to prevent the hoarding of spectrum for anti-competitive purposes, the practical problems of defining, monitoring and enforcing such provisions were considered to be significant. The report also concluded that use-or-lose “would impose barriers to new market entrants and thus be counter-productive to their purpose.”
Allocation Methodology 34
The costs and benefits of sealed bid tenders, open cry auctions and variations thereof were explored. Recent developments in the USA with ‘multiple round, ascending bid’ (MRAB) auctions led to the conclusion that “there is no need, in the Ministry’s view, to deal with methods of auctioning in the Act. The most appropriate method to auction spectrum can be decided by the government at the time.”
Non-Commercial and Maori Broadcasting 35
Although the Government policy objectives for non-commercial and Maori broadcasting were outside the scope of the Act and the review, difficulties with administrative processes relating to licensing of such services were addressed, particularly in terms of caveats and contracts restricting sale or transfer. The report concluded that proposed new provisions for amend, cancel and transfer authorities to be included in licences,36 would also significantly improve the administration of non-commercial and Maori broadcasting licences, without compromising the intent of the established policy.
RADIOCOMMUNICATIONS AMENDMENT BILL
On 27 May 1996 Cabinet agreed37 to Ministry of Commerce proposals for a Radiocommunications Amendment Bill. The Bill would:
- Remove the 20-year restriction on the duration of management rights.
- Adopt changes to improve the technical definition of rights including:
- Flexibility in the spectrum licence format to permit wider technology and service choices
- Revised requirements for licence engineering and certification
- Provide for amend, cancel and transfer authorities in a licence.
- Combine into a single publicly accessible register, records of administrative licences and spectrum rights.
- Allow a succeeding management right to be created prior to the expiry of an existing right in order to facilitate its transfer at expiry.
- Provide a new procedure for interference resolution based on compulsory adjudication.
- Make the obligation on rightholders to comply with the international radio regulations more specific.
- Transfer the provisions relating to privacy of radiocommunications from regulations to the Act and make them subject to an offence.
- Adopt changes dealing with administrative licensing, including the capacity to licence the use of frequencies rather than apparatus.
- Repeal spent provisions.
The Bill was duly drafted and approved for introduction by Cabinet on 8 December 1997.38
FURTHER MAORI CLAIMS
One submission to the Select Committee on the Radiocommunication Bill maintained that the Act should be “consistent with the principles of the Treaty of Waitangi and with the Treaty itself.” 39 In particular, the submission claimed that removal of the 20-year cap on management rights would prejudice Maori claims to rangatiratanga over radio frequency spectrum. Partly in response to these views the Committee amended the bill to retain the status quo, that is the retention of the 20-year cap. This was the only substantial change made to the bill by the Committee when it tabled its report to Parliament on 27 August 1998.
Following the announcement by Government of a further auction of frequencies in the 2GHz band, a claim in respect of Maori rights to management and development of the radio spectrum was lodged on 8 March 1999 40 and the auction was deferred pending a substantive hearing. The Waitangi Tribunal released its final findings and recommendations on 1 July 1999 41 with a split decision but a majority finding that:
- The claimants would be prejudiced if the 2 GHz auction were to proceed and it should be suspended until a fair and equitable portion of spectrum rights (that is the radio to generate radio waves) are reserved for Maori.
- The Radiocommunications Act 1989 is in breach of the Treaty in that it permits alienation of spectrum rights without consultation with Maori, or without allowing Maori a fair and equitable share of those rights.
The minority finding was that:
- The right to generate radio waves was not protected by the Treaty.
- The Crown had breached its obligation to protect Maori language and culture and that the measures taken by the Crown to remedy the decline of the Maori language were insufficient.
- It would be an improper use of the Treaty to address the problem of language decline by providing spectrum rights to Maori, however a portion of the proceeds of the 2 GHz auction should be applied to promoting Maori language and culture.
The Government considered the report of the Tribunal but declined to accept that the generation of radio waves for communication purposes was a taonga under Article II of the Treaty, that Treaty principles required spectrum rights to be be allocated to Maori, or that the Radiocommunications Act was in breach of the Treaty.42 The Minister of Communications, the Hon Maurice Williamson, announced the 2GHz auction would, therefore, proceed. The Government did agree, however, to make an additional $15M of funding available for the promotion of Maori language and culture.
PASSAGE OF AMENDMENT BILL AND 2GHz AUCTION
A Labour-Alliance coalition Government was elected in November 1999. While the new Government upheld the previous National Government decision in regard to the WAI 776 claim, it also reserved one ‘3G’ block of 2GHz band spectrum for Maori economic development purposes. The Radiocommunications Amendment Act 2000 received Royal Assent on 7 April 2000, and the 2GHz auction concluded in February 2001. New Radiocommunications Regulations to support the provisions of the amendment act were made by Order-In-Council on 10 September 2001.
 Radio waves were also known as airwaves because it was originally thought that air molecules conducted radio energy, or in other words radio waves could not propagate in a vacuum. Although this was proved incorrect, and satellite and spacecraft radiocommunication today confirms it, the term remains in common use.
 Righi (Italian), Lodge (English), Branly (French) and Popov (Russian)
 Naturally occurring radio wave energy, such as that emitted by stars and other objects in the universe, has no known utility for communication purposes.
 See Hansard relating to the passage of this Act.
 Opened 18 September 1913.
 The first Australian coast radio station opened in Melbourne on 8 February 1912.
 The Auckland station at Musick Point opened at this time.
 Both opened 18 December 1913. Awanui closed on 10 February 1930.
 A wireless-equipped ship, the Californian, was only 10 miles away but the sole wireless operator had gone to bed and there was no international agreement for radio watch-keeping and frequencies of operation.
 The range of frequencies of electromagnetic energy capable of sustaining radiocommunications
 The Radio Years – A History Of broadcasting In New Zealand, Patrick Day, Auckland University Press 1994, ISBN 1 86940 094 1
 CM 88/47/39 referrs
 more commonly referred to as apparatus licences and now known as radio licences
 now known as spectrum licences
 now known as management rights
 1st Reading 17/8/89 (Hansard Vol 500, 12027-12047); referred to Planning and Development Committee 5/12/89 (Vol 503, 14080-14090); 2nd Reading 5/12/89 (Vol 503, 14090-14113); Committee Stage 12/12/89 (Vol 504, 14468-14473); 3rd Reading 12/12/89 (Vol 504, 14473-14479).
 Under clause 125 of the Bill, spectrum rights were deemed to be assets employed in connection with a business for the purposes of s47(1)(c) of the Commerce Act 1986.
 Some years later the allocation process was changed to a 1st price sealed bid and, latterly, to a multiple-round ascending-bid auction.
 Friday 22 December 1989.
 Each lot was a package of some 30 licences.
 A significant number of licences were won by Sky Network Television Ltd who proposed providing a new pay-tv service.
 At the time of the auction an analogue technology, known as TACS, was still the primary application overseas however this technology was never implemented in New Zealand. BellSouth established service with the new digital GSM technology.
 WAI 150 and WAI 26 respectively
 Summarised from section 2.2 of the Waitangi Tribunal WAI 776 ‘The radio spectrum management and development final report,’ 28 June 1999
 Reference CAB (91) M 51/32
 ‘Radiocommunications Act Review Discussion Paper’; Ministry of Commerce, April 1994, ISBN 0 478 002785
 Chapter 1, Page 3
 July and October 1995
 ‘Radiocommunications Act Review: Preliminary Conclusions’; December 1995 ISBN 0-478-00311-0
 Chapter 5, Page 42
 Radiocommunications Act s34g
 Chapter 7, pages 67 – 79
 The proposal was first discussed, and rejected, during the Select Committee hearings in 1989 on the Radiocommunications Bill.
 Chapter 8, pages 85 – 92
 Chapter 12, pages 106 – 109
 discussed in Chapter 5
 CAB(96) M 19/19A refers
 CAB (97) M 46/11H refers
 Submission 14, Whatarangi Winiata
 WAI 776
 ‘The Radio spectrum Management and Development Final Report’, WAI 776, ISBN 1-86956-251-8
 CAB (99) M26/14 refers