Decision on the Renewal of 24 and 38 GHz Spectrum Licences and Consultation on Spectrum Licence Fees for 24, 28 and 38 GHz Bands

March 2009

Spectrum Management and Telecommunications
Radiocommunication Act

Notice No. DGRB-004-09 – Decision on the Renewal of 24 and 38 GHz Spectrum Licences and Consultation on Spectrum Licence Fees for 24, 28 and 38 GHz Bands

Through this notice, Industry Canada hereby announces the publication of the results of the consultation process issued in Canada Gazette Notice No. DGRB-001-08 – Consultation on the Renewal of 24 and 38 GHz Spectrum Licences and Spectrum Licence Fees for 24, 28 and 38 GHz Bands.

Also by way of this notice, and in accordance with subsection 4(1) of the User Fees Act, the Department is announcing the proposed fee for the 24, 28 and 38 GHz bands and providing a further opportunity for stakeholders to comment on the proposed fee, as well as on the related service standards.

Submitting comments

Respondents are requested to provide their comments on the proposed fee, in electronic format (XHTML, WordPerfect, Microsoft Word, Adobe PDF or ASCII TXT), to the following email address: ic.spectrumoperations-operationsduspectre.ic@canada.ca, along with a note specifying the software, version number and operating system used.

Written submissions should be addressed to the Manager, Emerging Networks, Industry Canada, 300 Slater Street, Ottawa, Ontario, K1A 0C8.

All submissions should cite Canada Gazette, Part I, the publication date, title and notice reference number DGRB-004-09. Parties should submit their comments no later than April 30, 2009, to ensure consideration. Soon after the close of the comment period, all comments received will be posted on Industry Canada's Spectrum Management and Telecommunications website at http://www.ic.gc.ca/spectrum.

Obtaining copies

Copies of this notice and of documents referred to herein are available electronically on Industry Canada's Spectrum Management and Telecommunications website at http://www.ic.gc.ca/spectrum.

Official versions of Canada Gazette notices can be viewed at www.gazette.gc.ca/accueil-home-eng.html. Printed copies of the Canada Gazette can be ordered by telephoning the sales counter of Canadian Government Publishing at 613-941-5995 or 1-800-635-7943.

Original signed on March 6, 2009

Michael D. Connolly
Director General
Radiocommunications and
Broadcasting Regulatory Branch

Contents

1. Intent
2. Backgound

Part A: Decision on the Renewal of 24 and 38 GHz Spectrum Licences

1. 24 and 38 GHz Licences
   • 1.1 Implementation of Spectrum Usage and Licence Renewal
   • 1.2 Conditions of Licence for 24 and 38 GHz Licences - Discussion
2. Unassigned or Returned 24 and 38 GHz Spectrum, and 28 GHz Local Multipoint Communications System (LMCS) Spectrum
   • 2.1 Availability of Unassigned or Returned Spectrum
   • 2.2 Block Size and Geographic Service Area
   • 2.3 Conditions of Licence – First-Come, First-Served

Part B: Licence Fees – Further Consultation

1. Background
2. Proposed Fee for First-Come, First-Served Licences
   • 2.1 General Principles for Establishing Fees
   • 2.2 Recommendation
3. Service Standards
4. Submitting Comments
5. Obtaining Copies

Annex A – Conditions of Licence

1. Intent

The following paper is divided into two parts. Part A outlines decisions resulting from the 2008 consultation process published in Canada Gazette Notice DGRB-001-08 – Consultationon the Renewal of 24 and 38 GHz Spectrum Licences and Spectrum Licence Fees for 24, 28 and 38 GHz Bands and announces changes to licence conditions, including those related to the implementation of spectrum usage.

In Part B of this document, in accordance with subsection 4(1) of the User Fees Act,^{Footnote 1} the Department is announcing the proposed fee for the 24, 28 and 38 GHz bands and providing a further opportunity for stakeholders to comment on the proposed fee, as well as on the related service standards.

2. Background

In February 1996, Industry Canada issued a call for applications announcing that it would use a comparative process to select licensees for two 500 MHz frequency blocks in the 28 GHz band for Local Multipoint Communications Systems (LMCS). Thirty-five companies initially responded with expressions of interest. Of those, 14 subsequently submitted detailed submissions. In October 1996, the Department announced the winners of the comparative process and issued licences to three companies. All licences were returned to the Department by January 2002.

In 1999, Industry Canada conducted its first spectrum auction for fixed point-to-point and point-to-multipoint spectrum in the 24 and 38 GHz bands. Of the 354 licences made available for the auction, 96 remain with the Department.

In April 2008, Industry Canada issued Canada Gazette Notice No. DGRB-001-08 – Consultationon the Renewal of 24 and 38 GHz Spectrum Licences and Spectrum Licence Fees for 24, 28 and 38 GHz Bands. This consultation dealt specifically with the renewal of the 24 and 38 GHz licences issued following the 1999 auction. The paper:

1. discussed on what basis 24 and 38 GHz licences should be renewed;
2. proposed a renewal fee that would apply to new and renewed licences in the 24, 28 and 38 GHz bands;
3. proposed updated licence conditions that would apply to new and renewed licences in the 24 and 38 GHz bands; and
4. proposed a first-come, first-served licensing process for unassigned or returned spectrum, including that in the 28 GHz band.

A comment period was provided and nine companies responded to the consultation paper.

Part A: Decision on the Renewal of 24 and 38 GHz Spectrum Licences

Having considered the comments received, Industry Canada announces the following decision.

1. 24 and 38 GHz Licences

1.1 Implementation of Spectrum Usage and Licence Renewal

In the consultation paper, the licence condition related to implementation of spectrum usage was discussed thoroughly.

The original licence condition for the implementation of spectrum usage was outlined in the May 1999 Policy and Licensing Procedures for the Auction of the 24 and 38 GHz Frequency Bands: "Within three years of the auction's close, the licensee must demonstrate to the Department that the spectrum has been put into use. The establishment of eight links per one million population (rounded up to a whole number) within a service area, or some other indicator of usage which is acceptable to the Department, will be required."

As noted in the consultation paper, after receiving requests from licensees over the years citing a lack of suitable and affordable equipment preventing them from meeting the implementation deadline, two extensions to the implementation target date were granted by the Department: first, until July 2, 2007; and later, until the end of the licence term. The licence term for the majority of licences was to end in 2010, with some ending in 2012 and 2013.

The 24 and 38 GHz spectrum auction was held during the "technology boom" and this spectrum held great promise for fixed wireless broadband access, with service providers hoping to offer competitive voice, data and multimedia services. Unfortunately, the technology has not developed as expected, and the availability of suitable and affordable equipment remains an issue. The deployment of radio systems in these bands has been quite limited. The Department also notes that there has not been any significant interest in the spectrum by non-licensees and that other countries are experiencing a similar lack of development.

Since the close of the 24 and 38 GHz auction, some spectrum remains unassigned. One licensee returned its spectrum licences to the Department and another licensee declared bankruptcy. Ninety-six of the 354 licences made available in the 24 and 38 GHz band auction are currently held by Industry Canada. The Department has received very little interest in these spectrum licences. Departmental officials have met with 24 and 38 GHz licensees who have been actively trying with little success to enter into commercial arrangements with other companies (e.g. to sell, lease or trade) to make use of their spectrum.

In this context, Industry Canada recommended in the consultation paper that the condition of licence related to implementation of spectrum usage be waived as a factor in determining whether to renew the current 24 and 38 GHz licences. However, compliance with the remaining licence conditions would be reviewed by the Department prior to approving applications for licence renewal.

All but two of the comments received on this subject were in agreement that deployment of services in these bands has been hindered by lack of equipment and lack of technological development. Furthermore, there was general agreement that there is limited demand and that the large investment made by the licensees in the 1999 auction had yet to produce any significant revenue.

Three respondents suggested that, due to the special circumstances in this band, the existing licence be extended by another five years. Two of these recommended that no associated renewal fee be applied and the third indicated that a renewal fee based on the current value of the spectrum would be acceptable. A fourth respondent recommended a 10-year extension with no additional fees.

The Department notes that equipment is gradually becoming available on the market and that demand from the market will encourage further development of equipment.

Taking into consideration these responses, along with the prevailing challenges with respect to equipment and technological development, the Department has decided to grant a five-year extension to the existing licence term with no applicable fees, and to similarly extend the deadline for system deployment to the end of the extended licence term. Existing licences will be amended to reflect these changes. Two years prior to the end of the extended term, Industry Canada will initiate a consultation process related to the renewal of these licences.

Note that Industry Canada's decision to extend the existing licences for an additional five years (with no applicable fees) is specific to licences in the 24 and 38 GHz bands and does not apply generally to determinations that the Department may make in other frequency bands or, at a future date, for licences in the 24 and 38 GHz frequency bands.

1.2 Conditions of Licence for 24 and 38 GHz Licences - Discussion

As part of the consultation, the Department reviewed the conditions of licence that had been applied after the auction and discussed changes related to the renewal process. Many of the changes were proposed in order to bring the wording up to date with the current wording used by the Department. In view of the Department's decision to grant an extension to the existing licences, only minor changes will be made to the conditions of licence as noted below. Conditions related to the renewal of these licences will be included in a future consultation. Annex A contains a complete list of the licence conditions applicable to the extended licences.

1.2.1 Licence Term

With the decision to grant a five-year extension, this condition will be replaced with the following text:

The term of this licence will expire as indicated above. The process for issuing licences after this term and any issues relating to renewal will be determined by the Minister of Industry following a public consultation.

1.2.2 Spectrum Aggregation Limit

This licence condition will be removed, as its requirement was rescinded for the 24 and 38 GHz spectrum bands through Canada Gazette Notice No. DGTP-004-06 – Decisionto Rescind the Broadband Spectrum Cap Policy.

1.2.3 International Coordination

In the consultation paper, the Department proposed to harmonize the language of the related licence condition with the current wording used by the Department on licences in other frequency bands and to include reference to domestic coordination.

The additional wording indicated that:

1. domestic coordination is required as per the Canadian technical standards for this spectrum;
2. licensees may be required to provide necessary technical data to Industry Canada in order to facilitate coordination exercises; and
3. domestic coordination will follow similar procedures as those for international coordination.

All comments received either concurred with or did not oppose the new wording of this licence condition.

The title for the international coordination licence condition will be amended to include domestic coordination and the related wording will be amended to reflect the changes.

1.2.4 Implementation of Spectrum Usage

As noted in the consultation paper, the main issue of concern in the renewal of the 24 and 38 GHz licences is the licence condition for the implementation of spectrum usage. In the consultation paper, the Department proposed to waive implementation of spectrum usage as a factor in determining whether to renew the 24 and 38 GHz licences and noted that the decision to waive the implementation of the spectrum usage licence condition was specific to the 24 and 38 GHz bands, and does not apply generally to determinations that the Department may make with respect to the implementation of spectrum usage licence conditions in other frequency bands.

Most comments received concurred with or did not oppose replacing the licence condition related to mid-term implementation with consideration of implementation at licence renewal.

Given the decision to consider implementation of spectrum usage at the end of the extended licence term, this condition of licence will remain and the implementation will be required to be met prior to licence renewal.

1.2.5 Lawful Interception

A new licence condition for radiocommunication carriers related to lawful interception was proposed for the 24 and 38 GHz licences. This condition is a requirement in the SolicitorGeneral's Enforcement Standards for Lawful Interception of Telecommunications (Rev. November 1995).

One respondent highlighted the discrepancy in the clause in that the reference to "circuit-switched" was missing. Most comments received were in concurrence with the requirement; however, one was conditional, particularly on costs and timing. An incumbent indicated that it has been active with the rest of the telecommunications industry in highlighting three issues that are highly important to the industry. These are:

• that service providers receive financial compensation for the costs incurred in supporting law enforcement activities;
• that an adequate transition period be provided to service providers upon the coming into force of any legislation dealing with lawful interception; and
• that lawful interception requirements be based on industry standard capabilities and not enforce any special made-in-Canada solutions.

The Department believes that the concerns related to cost and timing are outside the scope of the consultation on the condition of licence and that interested parties should bring their concerns forward during any legislative process that the government undertakes concerning lawful interception. In consideration of the comments related to timing, the condition allows for the licensee to request that the Minister of Industry forbear from enforcing certain lawful interception capability requirements for a limited period of time.

In reference to a comment on the requirement to meet this condition being imposed on a primary licensee where a subordinate licence exists, the Department notes that subordinate licences are issued based on several factors, including the service being provided. Should the subordinate licensee use the spectrum as a radiocommunication carrier, as defined in the RadiocommunicationRegulations, the subordinate licence would be issued with the appropriate licence conditions, including the requirement for lawful interception.

With this licence condition, the Department harmonizes the licence conditions for radiocommunication carriers in the 24 and 38 GHz bands with those for certain radiocommunication carriers in other frequency bands and complies with the requirement in the SolicitorGeneral's Enforcement Standards for Lawful Interception of Telecommunications (Rev. November 1995). Note that the reference to "for circuit-switched voice telephony systems" has been reintroduced to the condition.

1.2.6 Research and Development

The Department indicated in the consultation paper that the current condition of licence requiring the funding of research and development will remain as in the current licence conditions, adding the exception for small businesses with less than $5 million in annual gross operating revenues.

Two comments received requested the removal of this licence condition. Four respondents concurred with or did not oppose the retention and modification of this condition with one of the four recommending that additional funds be set aside from all licence fees collected by the government and allocated to research and development funding.

It should be noted that the Department does not collect any funds by way of this condition of licence. This condition will remain in force with the inclusion of additional wording related to the exception for small businesses. The Department is currently reviewing the Research and Development (R&D) condition of licence. Noting that this condition applies to many licences, the discussion will take place in the upcoming Consultationon Revisions to the Framework for Spectrum Auctions in Canada.

1.2.7 Annual Reporting

In the consultation paper, Industry Canada proposed to harmonize the language of this licence condition with the current wording for licences in other frequency bands and, in particular, to remove the reference to the numbers of hubs and sites.

The modified wording indicated that:

1. an annual update on the implementation and spectrum usage within the area covered by the licence would be required and the reference to the number of hubs and sites would be removed; and
2. the reference to facilitating compliance with the research and development condition by consulting Industry Canada's Guidelines for Compliance with Radio Authorization Condition of Licence Relating to Research and Development (GL-03) would also be removed, as it already appears in the Research and Development licence condition.

The remainder of the original wording would remain in effect.

Several respondents were opposed to providing an audited statement of research and development expenditures with an accompanying auditor's report because of the cost of undertaking such an audit. Recommendations included submitting a certificate signed by an officer of the company confirming the research and development expenditures incurred.

Noting the costs involved in obtaining audited reports, particularly those related to research and development programs, the Department agrees to modify the condition to remove the reference to "… including an audited Statement of Research and Development Expenditures with an accompanying Auditor's Report …" and replace it with wording to the effect that the report must be certified by an officer of the company and that the Department reserves the right to request the audited Statement and accompanying Auditor's Report.

This modification related to research and development will be applied to long-term licences in all frequency bands.

1.2.8 Mandatory Antenna Tower and Site Sharing

A condition of licence on mandatory antenna tower and site sharing has been included in accordance with Canada Gazette Notice No. DGRB-002-08, through which Industry Canada set out conditions of licence to mandate roaming and antenna tower and site sharing and to prohibit exclusive site arrangements, and "… the amendments to licence conditions regarding tower sharing will apply to radiocommunication carriers in all bands." With the release of Canada Gazette Notice No. DGRB-005-08 – Releaseof Industry Canada's Arbitration Rules and Procedures for Mandatory Roaming and Antenna Tower and SiteSharing on November 29, 2008, this condition of licence came into effect.

2. Unassigned or Returned 24 and 38 GHz Spectrum, and 28 GHz Local Multipoint Communications System (LMCS) Spectrum

2.1 Availability of Unassigned or Returned Spectrum

Comments received on this topic generally agreed with Industry Canada's proposal to make available any previously auctioned spectrum in the 24 and 38 GHz bands that was unassigned or returned, as well as 28 GHz LMCS spectrum that was originally assigned through a comparative licensing process but returned to the Department in 2002. Citing an inability to generate a return on their investment in the auctioned spectrum, some respondents opposed the release of this unassigned spectrum. However, Industry Canada notes that equipment is becoming more available on the market and that demand for backhaul from AWS licence winners is expected to increase. Furthermore, the Department, in accordance with the Spectrum Policy Framework, supports the efficient functioning of markets by making spectrum available for use in a timely fashion and does not consider withholding spectrum from the market as warranted.

As a result, the Department intends to make this spectrum available using a first-come, first-served licensing process.

The details of this licensing process will be set out in a Client Procedures Circular (CPC) to be developed prior to the finalization of the proposed fees.

2.2 Block Size and Geographic Service Area

Of the three comments received related to block sizes and geographic service area for the 28 GHz band, one suggested the establishment of blocks of 100 MHz on a Tier 3 basis, a second suggestion called for the establishment of 100 MHz blocks without stipulating the geographic area and the third suggestion was for a 200 MHz block on a Tier 3 basis.

Detailed technical specifications for this band are set out in SRSP-325.35 and RSS-191. These standards will be updated as needed in consultation with the Radio Advisory Board of Canada (RABC). The Department will take into consideration the comments received regarding block size and geographic service area in consultation with the RABC.

2.3 Conditions of Licence – First-Come, First-Served

The conditions of licence for the extended licence term, described in Annex A, will apply to allannual first-come, first-served licences in the24, 28 and 38 GHz bands, with the following exceptions:

(a) Licence Term (Condition 1)

The following condition replaces the condition described in Annex A:

The term of this licence will expire on March 31 of each year. Licensees must pay the annual licence fee before March 31 of each year for the subsequent year (April 1 to March 31).

(b) Research and Development (Condition 10)

This condition does not apply to first-come, first-served licences.

(c) Implementation of Spectrum Usage (Condition 12)

This condition does not apply to first-come, first-served licences.

(d) Annual Reporting (Condition 13)

Licensees must submit an annual report for each year of the licence term, including the following information:

• a statement indicating continued compliance with all conditions of licence;
• an update on the implementation and spectrum usage within the area covered by the licence;
• existing audited financial statements with an accompanying auditor's report; and
• a copy of any existing corporate annual report for the licensee's fiscal year with respect to the authorization.

All reports and statements must be certified by an officer of the company and submitted, in writing, within 120 days of the licensee's fiscal year end, to the address below. Where a licensee holds multiple licences, the reports should be broken down by service area. Confidential information provided will be treated in accordance with section 20(1) of the Access to Information Act.

Manager, Emerging Networks
Radiocommunications and Broadcasting Regulatory Branch
Industry Canada
300 Slater Street, 15th floor
Ottawa, Ontario K1A 0C8