Spectrum management
The legal implications of reform in
This article sets out the current regula-
tory framework within which the
radiocommunication spectrum is man-
fqed at both international and natlonal
levels, with particular reference to the
UK, prior to considering certain legal
implications of reforms which have
been proposed. Due to the significance
of European regulation for the UK,
separate consideration is given to re-
levant European initiatives.
Christopher Millard is a Partner in the
Computer & Communications Group, Clif-
ford Chance, 200 Aldersgate Street, Lon-
don EC1 A AM, UK (Tel: 071 600 1000;
Fax: 071 600 5555). He is also a Senior
Visiting Fellow of the University of London
where he teaches an LLM course in Tele-
communications Law.
An earlier version of this paper was pre-
sented at the Financial Times Conference,
‘The Allocation of Radio Spectrum’, Lon-
don, UK, June 1992.
The assistance of Adam Perkins in the
preparation of this paper is gratefully ack-
nowledged.
‘Deregulationof the Radio Spectrum in the
UK, CSP International, London, UK, 1967.
2The Convention reauires ratification bv 55
states, which to dat& only 17 have dot%
31nternational Telecommunication Con-
vention, Nairobi, 6 November 1962.
0306~5961/92/060657-09 0 1992 Butterworth-Heinemann Ltd
the UK
Christopher Millard
Calls for reform of the current spectrum management regime have
generally been founded upon perceived inefficiencies in the allocation
of frequencies between alternative uses and in delay and other
bureaucratic shortcomings on the part of the present system. Although
the potential for deregulation was thoroughly reviewed and recom-
mendations made by consultants in a report produced in 1987 on behalf
of the UK Department of Trade and Industry (DTI),’ no significant
changes to the system have been implemented to date. The means of
reform, if any, clearly cannot be currently predicted, nor all potential
legal implications addressed. However, this article seeks to highlight
and to comment upon significant legal implications of commonly
anticipated reforms insofar as they relate to civil use of the spectrum.
Frequency use is, of course, a matter which requires planning at both
international and domestic levels. At an international level such plan-
ning is necessary to avoid interference between the transmissions of
different countries and to promote coordination for frequency use in
certain cross-border services. At the domestic level regulation is used to
ensure compliance with international obligations, to avoid interference
between domestic transmissions and as a means of implementing other
telecommunications policies.
Current regulation
International regulation
Coordination at the international level is achieved primarily through the
International Telecommunication Union (ITU), founded in 1865.
Although now an agency of the United Nations, the legal authority of
the ITU is based upon conventions agreed between member countries at
Plenipotentiary Conferences. The most recent Plenipotentiary Confer-
ence took place in Nice in 1989, but the requirements for entry into
force of the 1989 Nice Convention have not yet been met,* and the basic
instrument of the ITU is at present the 1982 Nairobi Convention.3
States which have ratified the Convention are subject to treaty obliga-
tions.
657
Spectrum management in the UK

The ITU publishes Radio Regulations which contain the measures

agreed between the signatories to the Convention in respect of manage-
ment of the radio spectrum, set out the agreed international frequency
allocations in the form of the International Table of Frequency
Allocations,4 and define the relevant service categories. The Radio
Regulations are amended from time to time by World Administrative
Radio Conferences. The most recent amendments, made by WARC-92,
are due to come into effect on 12 October 1993. WARCs are convened
either by a decision of a Plenipotentiary Conference, on the recom-
mendation of a previous WARC if approved by the Administrative
Council, at the request of at least one-quarter of the members or on a
proposal of the Administrative Council.’
The Radio Regulations comprise the principal international measures
regulating use of the spectrum, providing a framework within which
member countries can allocate and control spectrum use. The Radio
Regulations do not, however, represent universally agreed allocations
for two principal reasons. First, the world is divided into three regions
for the purposes of the International Table in order to facilitate some
global flexibility. Second, footnotes to the Table are used extensively to
provide for national variations to the generally agreed allocations.
National variations may also be protected by appropriate statements
made in the Final Acts of Administrative Radio Conferences. In
addition to the Radio Regulations, allocation at an international level is
regulated by bilateral agreements between countries, and, in the case of
EC member states, by European regulations.
Two permanent organs of the ITU are also significant in the context
of spectrum regulation, namely the International Frequency Registra-
tion Board (IFRB) and the International Radio Consultative Commit-
tee (CCIR). The IFRB acts as a form of clearing house for assignments
by national frequency authorities of transmitter sites and operating
frequencies, including the orbital position of satellites. The procedures
in the Radio Regulations for the registration of assignments are
designed to ensure compliance with the International Table and other
regulations and coordination requirements of the Radio Regulations,
and also to provide the registered user with priority over subsequent
users if interference results from that use. The CCIR is responsible for
technical studies relating to radiocommunications and coordinates inter-
nationally agreed technical input to Administrative Radio Conferences.
The recommendations of its study groups, if accepted, may be incorpo-
rated by reference into the Radio Regulations. Another ITU technical
consultative committee, the International Telegraph and Telephone
Consultative Committee (CCITT), may also provide technical advice to
the Conferences.

European regulation
At a European level, the European Conference of Postal and Telecom-
munications Administrations (CEPT) provides a forum through which
postal and telecommunications administrations can seek to cooperate in
Europe. In 1990 CEPT established the European Radiocommunications
Committee (ERC) to develop radiocommunications regulatory policies
and to harmonize radio spectrum use and cross-border licensing. Since
%ternational Telecommunication Con- 1991 the ERC has been assisted by the resources of the European
vention, Art 8.
%ternational Telecommunication Con- Radiocommunications Office (ERO). To date, upon concluding its
vention, Art 54. consideration of an issue the ERC has produced recommendations.

658 TELECOMMUNICATIONS POLICY November 1992


BWireless Telegraphy Act 1949, sect 1.
‘Wireless Telegraphy Act 1949, sect 19.
‘Wireless Telegraphy Act 1967, sect 7.
?he Marine, Etc, Broadcasting (Offences)
Act 1967 and lnterceotion of Communica-
tiis Act 1985 also have some impact but
are beyond the scope of this article.
“‘Telecommunications Act 1984, sect 6.
l’Telecommunications Act 1984, sect 5.
‘telecommunications Act 1984, sect 4.
‘3Telecommunications Act 1984, sect 7.
14Broadcasting Act 1990, sects 13 and 97.
TELECOMMUNICATIONS POLICY
Spectrum management in the UK
While members may be encouraged to adopt such recommendations, at
present they have no binding effect. Mandatory regulation at a Euro-
pean level is therefore currently restricted to EC member states which
are subject to a number of measures discussed below. Mention should
also be made of the European Telecommunications Standards Institute
(ETSI), the principal aim of which is to produce equipment standards.
Membership of ETSI includes manufacturers, and is consequently much
broader than that of CEPT, from which equipment standards work was
transferred to ETSI in 1988.
International coordination of satellite services is clearly of even
greater significance than is the case for terrestrial services, and in
addition to frequency allocations the Radio Regulations provide in
detail for satellite frequency coordination and sharing. The frequency
requirements of satellite organizations such as Intelsat (International
Telecommunications Satellite Organization) and Eutelsat (European
Telecommunications Satellite Organization) are submitted to the IFRB
by the respective host administration for coordination with the services
of other administrations.
UK domestic regulation
Civil use of the spectrum in the UK is regulated principally by the
provisions of the Wireless Telegraphy Acts 1949 to 1967. The 1949 Act
prohibits the establishment or use of any station for wireless telegraphy
and the installation or use of any apparatus for wireless telegraphy
except under and in accordance with a licence, subject to such exemp-
tions as may be specified. 6 ‘Wireless telegraphy’ is defined in effect as all
forms of radiocommunication of a frequency not exceeding 3000 GHz.~
The 1967 Act, in addition to containing provisions relating to the sale
and hire of television sets and which otherwise amend and supplement
the 1949 Act, restricts the manufacture or importation of certain
apparatus. The purpose of such controls is to prevent or reduce the risk
of intereference to wireless telegraphy.’
In addition, both the Telecommunications Act 1984 and the Broad-
casting Act 1990 are relevant to spectrum use.’ Subject to limited
exceptions, lo the Telecommunications Act 1984 makes it an offence for
any person to run a telecommunication system within the UK unless so
authorized by a licence granted pursuant to the Act.” The definition of
‘telecommunication system’ includes a system for the conveyance
through the agency of electromagnetic energy of speech, music and
other sounds, visual images, signals for the impartation of any matter
otherwise than in the form of sounds or visual images or signals serving
for the actuation or control of machinery or apparatus.12 Individual
licences are not necessary in all circumstances to which the definition
applies due to the issue of class licences, the benefit of which is available
generally to all persons or to persons of a particular group. Licences
may be granted either by the Secretary of State or, if so authorized by
the Secretary of State, by the Director General of the Office of
Telecommunications.13
Under the Broadcasting Act 199014providers of certain television and
radio broadcasting services are subject to further licensing require-
ments, licences being granted by the Independent Television Commis-
sion (ITC) and the Radio Authority respectively. The frequencies in
respect of which licences may be granted are determined by the
November 1992 659
Spectrum management in the UK
Secretary of State, and any such frequency assignment may be revoked
by notice. l5
Domestic telecommunications policy in the UK is coordinated
through an Interdepartmental Committee on Government Telecom-
munications supported by a number of specialist groups, one of which
has responsibility for national spectrum planning, formulated within the
parameters set by the International Table of Frequency Allocations. In
addition to a significant role in that interdepartmental machinery, and
to a representative function in the ITU and other international fora, the
DTI licenses civil users of the spectrum. These functions are exercised
through an executive agency, the Radiocommunications Agency (RA),
which includes the Radio Investigation Service (RIS), responsible for
enforcement of the licensing regulations and for investigating cases of
radio interference. It is also important to note that other agencies have
responsibility for certain aspects of frequency management. Defence
management is within the purview of the Ministry of Defence, the
responsibilities of which extend to the Meteorological Office. The
Home Office and Scottish Office have certain management responsibili-
ties in respect of the civil defence, police, fire, prison and immigration
services, while the Northern Ireland Office has certain management
responsibilities within the province. Aeronautical radio navigation
activities are coordinated by National Air Traffic Services.
It appears that most civil users are licensed under the Wireless
Telegraphy Acts on standard terms following an application to the RA,
and are subject to a licence fee imposed to cover the administrative costs
of regulation. Certain bodies are granted ‘block’ licences covering a
broad range of frequencies and have had responsibility for frequency
assignment within that range delegated to them. Relevant organizations
include BT and Mercury, cellular radio network operators and com-
panies in the fuel and power industries. Unfortunately it is not possible
to be more definite regarding licensing practices in general since
Wireless Telegraphy Act licences are not public documents.
The requirements for Wireless Telegraphy Act licences apply even if
the particular operations in question also require a telecommunications
or broadcasting licence under the provisions referred to above. How-
ever, some specified equipment is exempted from the licensing require-
ments of the 1949 Act, such as certain apparatus operating on low
poweri or capable only of reception. l7 Licences will not be issued until
it is determined that the proposed assignment will not interfere with
existing assignments, any coordination procedures required to be under-
taken have been completed, and the assignment has been entered on the
National Frequency Register and notified to the IFRB.

European Community initiatives

‘5Broadcasting Act 1990, sects 65 and 84.
“The Wireless Telegraphy Apparatus In addition to other international and domestic controls, EC member
(Low Power Devices) (Exemption) Regula-
tions 1989, SI 1989, No 604. states and the spectrum users within them are increasingly becoming
“The Wireless Telegraphy Apparatus subject to EC regulations. The policies and objectives of the Commis-
(Receivers) (Exemption) Regulations sion in the area of spectrum management are set out in a 1990
1989, SI 1989, No 123.
‘*Council Resolution of 28 June 1980 on Resolution of the Council of Ministers.r8 Amongst other matters, the
the strengthening of the Europe-wide Council noted in that Resolution that the planning and allocation of the
cooperation on radio frequencies, in par- spectrum for service providers should be subject to objective, trans-
ticular with regard to services with a pan-
European dimension, OJ C 166, 7.7.90, parent and non-discriminatory conditions. The Council set out major
P 4. policy goals in the area, such as promoting the efficient use of the

660 TELECOMMUNICATIONS POLICY November 1992


‘se the ERO and ERC.
%ouncil Directive of 25 June 1987 on the
frequency bands to be reserved for the
coordinated introduction of public pan-
European cellular digital land-based
mobile communications in the Community,
87/372lEEC, OJ C 198, 17.7.87, p 85;
published with a Council Recommenda-
tion, also of 25 June 1987, 87/371/EEC,
OJ i 196, 17.7.87, p 81.
21Council Directive of 9 October 1990 on
the frequency bands to be reserved for the
coordinated introduction of pan-European
land-based public radio paging in the Com-
munity, 90/544/EEC, OJ L 310, 9.11.90,
p 28.
%ouncil Directive of 3 June 1991 on the
frequency bands to be designated for the
coordinated introduction of digital Euro-
pean cordless telecommunications
(DECT) into the Community, 91/287/EEC,
GJ L 144, 8.6.91, p 45. - Community without being required to obtain individual licences or
23Prooosal for a Council Directive on the
frequency bands to be designated for the
coordinated introduction of digital short-
range radio in the Community (submitted
10 July 1991) OJ C 189, 20.7.91, p 14.
24Proposal for a Council Directive on the
frequency bands to be designated for the
coordinated introduction of Road Trans-
port Telematic Systems in the Community,
including Road Information and Route Gui-
dance Systems, COM(92)341, final, SYN
441, 23 July 1992.
25Draft Proposal for a Council Directive on
ccmmon frequency bands to be desig-
nated for the coordinated introduction of
the Terrestrial Flight Telecommunication
System in the Community, COM(92)314
finel, SYN 440, 22 July 1992.
26Towards Europe-wide Systems and
Services, Green Paper on a common
approach in the field of satellite com-
munications in the European Communitv,
COM(90)490 final, 20 November 1990. _
27Prooosals for a Council Directive on the
mutual recognition of licences and other
national authorizations for Telecom-
munications Services including the estab-
lishment of a single Community telecom-
munications licence and the setting up of a
Community Telecommunications Commit-
tee, ONP COM 91-79 bis, 3 March 1992.
28See the Explanatory Memorandum
which accompanies the Proposal.
2gDeregulation of the Radio Spectrum in
the UK, op tit, Ref 1.
TELECOMMUNICATIONS POLICY
Spectrum management in the UK
spectrum and developing common European positions in respect of
international frequency harmonization through mechanisms set up by
CEPT.19 At present it would seem that there are no plans for Commun-
ity control of frequencies. It is, however, likely that the Community will
carry increasing weight at future WARCs and RARCs. In order that the
Community derive maximum benefit from such Conferences, the Re-
solution urges careful and extensive preparation and coordination of
proposals to be raised at the Conferences. Such an approach should
enhance the Community’s prospects of seeing its plans and ideas
approved and adopted within the international arena.
Some progress towards pan-European conformity of the spectrum has
already been made. In particular, the Commission has acted on the
initiatives of CEPT recommendations and Directives have been issued
reserving certain frequency bands for cellular digital land-based mobile
communications (GSM),20 land-based public radio paging (ERMES)*l
and digital cordless telecommunications (DECT).22 In addition, there
are several proposals in the Community pipeline for Directives covering
digital short-range radio (DSRR),23 Road Transport Telematic
Systems24 and Terrestrial Flight Telecommunication Systems.25 The
need for European coordination in respect of satellite services has also
been addressed.26
With regard to licensing, a draft of a Proposal for a Council Directive
has been circulated which would seek to introduce a Single Community
Telecommunications Licence, to be granted wherever a member state
had granted, or intended to grant, a licence to provide a telecommunica-
tion service under its national law.” This would enable service providers
authorized to operate in one member state to operate across the
authorizations from other member states. The Directive, which would
apply to the operation of telecommunication services on public telecom-
munications networks, would initially not apply to mobile or satellite
services. However, it is intended that it should eventually be extended
to cover such services, at which time it is recognized that certain
frequency aspects will have to be considered.28
Proposed reforms
UK
The 1987 report commissioned by the DTI, referred to above,29
concluded that the administrative procedures which restricted spectrum
access were neither necessary nor desirable. It recommended delegation
of authority to private sector organizations in respect of both assign-
ments (ie the distribution amongst licensees of spectrum allocated to a
given application) and at the allocation level (ie the determination of
spectrum appropriate for each application). Spectrum management
licences would be granted to both frequency planning organizations
(FPOs), which primarily sub-license spectrum to end users, and to
major users which required spectrum primarily for their own use but
which might also sub-license parts for which they had no current
requirement. At assignment level FPOs, and major users with spare
spectrum, would compete to supply users with their spectrum require-
ments and would themselves pay an annual licence fee, to be increased
by a premium if profits proved to be excessive. As for allocation, the
spectrum management licences would, so far as possible, not place
November 1992 661
Spectrum management in the UK
=Report of the Radio Spectrum Review
Committee Stage 2: 3400 MHz to 30 GHz,
31 May 1991; see para 13.2.3 in relation to
fixed links.
31See, for example, Deregulationof the
Radio Swctrum in the UK, OD cif. Ref 1,
pp 130-\33; and The Usi df the Radii
Frequency Spectrum Above 30 GHz - A
OTI ConsultafiveDocument,HMSO, Lon-
don, UK, 1988, p 11.
32For example, ‘It could be argued that at
the highest level in the UK, the radio
spectrum is administered rather than man-
aged. It is divided up amongst a number of
government departments who administer
it, but without anyone being in overall
charge - like a board of directors with
neither chairman nor chief executive to
ensure that consistent business objectives
are formulated and pursued throughout the
organisation. If the maximum benefit is to
be derived from the use of the radio spec-
trum, then strong and positive manage-
ment is needed from the top down: the
current arrangements have more in com-
mon with a “bottom up” approach.’ Report
of the RadioSpectrum ReviewCommittee
Stage 2, para i 1.7.
%/bid, paras 12.3.1 and 13.3.1.
%/bid, paras 12.3.2 and 13.3.2.
%For example, see the papers delivered
by F. Masson and E. Kalman respectively
to the CommEd Publishing Ud conference,
Radio Spectrum Management, 24 March
1992.
36J. Obuchowski, ‘Spectrum management
reform in the United States’, paper deli-
vered to ITU 8th World Telecommunication
Forum, Regulatory Symposium - Competi-
tion and Cooperation in the Changing En-
vironment.
37J. Stevenson, ‘Liberalization and priva-
tisation in New Zealand’, paper delivered
to ITU 6th World Telecommunication
Forum, Regulatory Symposium - Competi-
tion and Cooperation in the Changing En-
vironment.
662
constraints upon the type of services which could be offered in the
frequencies allotted.
The Radio Spectrum Review Committee (RSR Committee) has
recommended that substantial increases in licence fees should be
considered to reflect the opportunity cost of using radio where demand
greatly exceed s~pply.~~ The possibility of auctioning blocks of spectrum
to users has also been mooted.31 More generally, the RSR Committee
has remarked on the apparent lack of overall strategic management of
spectrum in the UK.32 While stopping short of proposing the creation of
a new ‘Telecommunications Agency’ with overall responsibility for
telecommunications policy, the RSR Committee has recommended the
creation of a new high-level committee within government reporting to
ministers which would oversee national and international work in
telecommunications.33 The RSR Committee has also recommended the
establishment of a separate independent advisory committee.34
Other jurisdictions
In Continental Europe, where for geographical reasons coordination
and control have even greater significance, views differ. For example,
while in the Federal Republic of Germany it is intended that spectrum
will be auctioned, the minimum offer being the cost price of frequency
management, in France the introduction of financial criteria is consi-
dered to be unlikely.35
In the USA the National Telecommunications and Information
Administration has recommended that the Federal Communications
Commission (responsible for non-federal spectrum management) be
authorized to assign new licences through an auction process.36 Current
means include lotteries and lengthy comparative hearings.
The most innovative country in this field is probably New Zealand,
where access to radio frequencies for broadcasting and telecommunica-
tions was liberalized back in 1989, with property rights in spectrum
being granted, subject to technical and international constraints. The
Radiocommunications Act 1989 enabled tendering for such frequencies,
although anti-competitive acquisitions of spectrum property rights are
restricted.37
Legal implications of UK reform
International constraints
The reforms which have been proposed in the UK anticipate that
national control will, as at present, be effected through the use of
licensing. The manner in which a new licensing regime might be
established is, however, subject to a number of limitations. The
principal constraints on any proposed reforms are, from a legal perspec-
tive, the international obligations governing national frequency use
which exist now or which are accepted in the future. As mentioned
above, these restrict not only the allocations within which assignments
may be made, but also the extent of permissible interference and the
procedures which must be followed in respect of coordination and
registration. Any licences granted by the government to either FPOs or
major users and any sub-licences subsequently created would have to be
subject to revocation or amendment if that was necessary to comply
with such obligations. Similarly, no assignment could be guaranteed
until all relevant registration requirements had been met.
TELECOMMUNICATIONS POLICY November 1992

38Wireless Telegraphy Act 1949, sects
l(4) and 3A(7).
3@EW ultimately lost in the House of
Lords, while TVNI failed at an earlier stage
on procedural grounds.
TELECOMMUNICATIONS
Spectrum management in the UK
As indicated earlier, the UK is also constrained by EC regulations in
addition to its other international obligations. With further EC regula-
tions being introduced, the extent to which market forces may be
allowed to operate will be increasingly fettered. The government might
also wish to reserve the right to amend licences to take advantage of
changes in technology.
Spectrum allocations as property rights
Another important and related issue is that of determining the nature of
the rights to be granted. Currently, Wireless Telegraphy Act licences
are personal and non-assignable. They cannot be described in any real
sense as property rights, being effectively only consents to do something
which is otherwise prohibited. Wireless Telegraphy Act licences would
be closer to property rights if, for example, the licences were for
substantial minimum periods of time, were assignable and gave rise to
rights to prevent unauthorized use of the licensed frequency which were
directly enforceable against third parties. Another significant considera-
tion is the extent to which licences might constitute ‘assets’ in respect of
which effective security could be created in the course of fund-raising,
particularly as in some cases the licence might be the principal asset of
the licensee. There would seem to be no particular obstacle to this in the
future provided that sub-licensing, or the creation of legal charges over
licences, were permitted.
Wireless Telegraphy Act licences are subject to revocation at any
time by the Secretary of State. 38 Whatever the shape of spectrum
management reform, such draconian powers seem inevitable due to the
government’s international obligations. However, by analogy with
so-called ‘real’ property, where the owner of the freehold title to a piece
of land may be subjected to compulsory purchase proceedings in certain
circumstances, the fact that a spectrum licence might be revoked by the
Secretary of State in certain circumstances need not in itself negate any
proprietary character which the licence might have.
Rights of assignment and direct remedies for interference, perhaps in
the form of new torts of ‘spectrum trespass’ or ‘spectrum nuisance’,
would give spectrum licences a great deal more substance than they
have at present. It may be that, in any event, potential applicants would
not be deterred by licence rights which did not have such properties or
which possessed some degree of uncertainty.
Judicial review
Any competitive process will result in some applicants being unsuccess-
ful. This raises the issue of the extent to which the results of any
competitive process concerning the appointment of FPOs may be open
to challenge. The proceedings brought by certain unsuccessful appli-
cants following the recent Channel 3 franchise round illustrate the type
of challenge which might be possible, and the difficulties of mounting
such challenges successfully.39
In general terms, decisions are susceptible to scrutiny by the courts,
that is to ‘judicial review’, where the decision maker is empowered by
public law to take decisions which will lead to administrative action or
where the nature of the decision maker’s powers are judicial or
quasi-judicial. The courts will only intervene where it can be shown that
a particular decision was unlawful, irrational or made without com-
pliance with the rules of natural justice. ‘Irrational’ has been interpreted
POLICY November 1992 663
Spectrum management in the UK
4oPer Lord Diplock in Council of Civil Ser-
vice Unions v Minister for the Civil Service
[1984] 3 WLR 1174. The test is often
referred to as ‘Wednesbury unreasonable-
ness’ after the case of Associated Provin-
cial Picture Houses Limited v Wednesbuty
Corporation [1948] 1 KB 223.
4’For a helpful introduction to judicial re-
view, see Bagnall, Judicial Review: Prac-
tice and Procedure Under Order 53 of the
Rules of the Supreme Court, Profex, Lon-
don, UK, 1985.
4%eaty of Rome, Art 90(l). The precise
application of this article to a member state
in its dealings with FPOs and major users
is unclear. There might be a limited de-
rogation from the competition rules of the
Treaty by virtue of Art 90(2) if it could be
demonstrated both that FPOs and/or major
users were ‘undertakings entrusted with
the operation of services of general econo-
mic interest or having the character of a
revenue-producing monopoly’ and that a
strict application of the competition rules
would obstruct them in the performance of
the particular tasks assigned to them.
However, this derogation has in the past
been construed in an extremely narrow
manner by both the European Court of
Justice and the Commission.
43See the recent Eurooean Court of Jus-
tice decision in the Terminal Equipment
Directive case and the Advocate General’s
opinion in the Telecommunications Ser-
vices Directive case.
“See Discussion in Deregulation of the
Radio Spectrum in the UK, op tit, Ref 1,
p 25.
664
as ‘a decision which is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied his
mind to the question to be decided could have arrived at it’.40 This is a
difficult threshold test to satisfy.
It is important to note that the availability of judicial review will
depend upon the statutory framework employed and the extent of the
discretion vested in the decision-making authority. Furthermore, there
are limitations to the scope of judicial review so that, for example, the
court will not substitute its own judgement or discretion for that of the
body under review, nor will it review facts determined by the body
subject to review, except in exceptional circumstances. If the applicant
is successful, remedies exist in the form of injunctions, declarations and
other orders to prevent the contested decision taking effect and to
ensure that the decision-making body complies with its duties.41
Competition law
Another significant issue is that of anti-competitive behaviour, in
respect both of the grant of spectrum management licences and also at
the level of assignments. In particular, FPOs and major users which
have been granted blocks of spectrum would potentially be subject to
challenge under the EC competition provisions of Articles 85 and 86 of
the Treaty of Rome.
Article 85(l) prohibits agreements between undertakings, decisions
by associations of undertakings and concerted practices which may
affect trade between member states and which have as their object or
effect the prevention, restriction or distortion of competition. Restric-
tions in agreements in breach of Article 85(l) are void under Article
85(2), while Article 86 prohibits any abuse by one or more undertakings
of a dominant position within the common market or any substantial
part of it. Breaches of either Article 85(l) or Article 86 would
potentially expose the participants to considerable fines. The potential
for anti-competitive behaviour is clear, particularly as in all likelihood
there would be only a small number of FPOs and major users licensed in
respect of each division of spectrum.
In addition to this regulation of the activities of spectrum manage-
ment licensees, it is worth noting that in the case of public undertakings
and undertakings to which member states grant special or exclusive
rights, which might include FPOs and major users, member states must
neither enact nor maintain in force any measure contrary to the terms of
the Treaty, including the competition provisions referred to above.42
The Commission may exercise its controversial power under Article
90(3) to issue Decisions or Directives requiring member states to adhere
to this obligation. 43 The ability of the state to determine the legislative
structure through which reform would be effected is restricted as a
result.
Supervision and policing
Although it may be desirable to delegate certain spectrum management
functions to private sector organizations, there will remain the need to
supervise those organizations and also to enforce the statutory provi-
sions necessary to prevent frequency misuse. With regard to super-
vision, procedures must not be too cumbersome or too rigid if the
advantages of delegation are not to be lost.44 While appropriate
procedures may be established through a combination of statutory
TELECOMMUNICATIONS POLICY November 1992
 Spectrum management in the UK
provisions and appropriate terms in spectrum management licences, the
requirement for flexibility weighs in favour of using licence terms rather
than statutory provisions to the greatest extent possible.
As for policing misuse of spectrum, this is a function which may not
seem readily susceptible to privatization. However, as with statute-
created property rights such as copyrights, there is no obvious reason
why a combination of civil remedies and criminal sanctions should not
be available to ensure fair and orderly use of spectrum. For example,
FPOs or users might be given rights of action against third parties by the
establishment of new torts such as ‘spectrum trespass’ or ‘spectrum
nuisance’.

TELECOMMUNICATIONS POLICY November 1992