Radiocommunications Act 1989

108 Notice of harmful interference

(1)

Where a respondent is lawfully transmitting radio waves under a registered spectrum licence or radio licence, and those transmissions cause or contribute to harmful interference in the protection area of another registered spectrum licence or radio licence, the claimant may serve on the respondent a notice concerning that interference.

(2)

If both the claimant and the respondent are holders of radio licences and the matter is in relation to those licences,—

(a)

the provisions of subsections (5) to (7) and sections 109 to 109C do not apply; and

(b)

the matter may be referred to the Secretary by the claimant or the respondent; and

(c)

the Secretary may take any action that the Secretary thinks fit.

(2A)

The claimant may, after the expiry of 10 working days from the date when the matter was referred to the Secretary under subsection (2), by notice in the prescribed form to the Secretary, request that the Secretary refer the matter to arbitration under section 109 if, within that 10-working-day period,—

(a)

the action specified in the notice given under subsection (1) has not been taken; and

(b)

the claimant continues to believe that the respondent’s transmissions have caused or contributed to, or are causing or contributing to, harmful interference in the protection area of the claimant, and that the action that is specified in the notice is justified; and

(c)

the claimant, the respondent, and the Secretary have not agreed on a method of reaching an agreement to deal with the harmful interference or to refer the matter to arbitration.

(2B)

Despite subsection (2)(a), if a claimant has made a request under subsection (2A), sections 109 to 109C apply.

(3)

Where the harmful interference which is the subject of the notice under subsection (1) endangers the functioning of the claimant’s radionavigation service or other safety service, the claimant may also serve a copy of the notice on the Secretary, and the Secretary may, in his or her discretion, direct the claimant or the respondent, or both, to take action forthwith, including ceasing transmissions, until the matter is resolved in accordance with sections 108 to 109A and section 109C.

(4)

A notice given under subsection (1) must state—

(a)

the nature of the harmful interference experienced; and

(b)

the alleged cause of the harmful interference and the manner in which the respondent is believed to have caused or contributed to the harmful interference; and

(c)

what action the claimant desires to be taken by the respondent to remedy the harmful interference; and

(d)

that the respondent has 10 working days following the receipt of the notice within which to take one of the actions referred to in subsection (5) and that, if the action the claimant wishes to be taken to remedy the harmful interference is not taken within 10 working days following the receipt of the notice, the matter may be referred to arbitration under this section.

(5)

Every respondent who receives a notice properly given under subsection (1) must, within 10 working days of receiving that notice,—

(a)

take the action to remedy the harmful interference specified in the notice; or

(b)

notify the claimant that in the respondent’s opinion the respondent’s transmissions have not caused or contributed to, or are not causing or contributing to, harmful interference to the claimant or that the action specified in the notice which the claimant wishes to be taken to remedy the harmful interference is not justified; or

(c)

agree with the claimant on a method of reaching an agreement to deal with the harmful interference; or

(d)

agree with the claimant to refer the matter to arbitration to be determined in accordance with the Arbitration Act 1996.

(6)

If, within 10 working days of a notice being properly given under subsection (1),—

(a)

the action specified in the notice has not been taken; and

(b)

the claimant continues to believe that the respondent’s transmissions have caused or contributed to, or are causing or contributing to, harmful interference in the protection area of the claimant, and that the action which is specified in the notice is justified; and

(c)

the claimant and the respondent have not agreed on a method of reaching an agreement to deal with the harmful interference or to refer the matter to arbitration,—

the claimant may, following the expiry of that 10-working-day period, by notice in the prescribed form to the Secretary, request the Secretary to refer the matter to arbitration under section 109.

(7)

Where the claimant and the respondent agree on a method of reaching an agreement to deal with the harmful interference under subsection (5)(c), but no agreement is reached within 20 working days of a notice properly given under subsection (1), the claimant may, following the expiry of that 20-working day period, by notice in the prescribed form to the Secretary, request the Secretary to refer the matter to arbitration under section 109.

Section 108: substituted, on 12 October 2001, by section 35 of the Radiocommunications Amendment Act 2000 (2000 No 8).

Section 108(2): substituted, on 17 May 2005, by section 3 of the Radiocommunications Amendment Act 2005 (2005 No 67).

Section 108(2)(a): amended, on 31 October 2006, by section 25(1) of the Radiocommunications Amendment Act 2006 (2006 No 54).

Section 108(2A): inserted, on 31 October 2006, by section 25(2) of the Radiocommunications Amendment Act 2006 (2006 No 54).

Section 108(2B): inserted, on 31 October 2006, by section 25(2) of the Radiocommunications Amendment Act 2006 (2006 No 54).