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RADIO RIGHTS

Last February, Open Spectrum UK filed comments in an Ofcom consultation and put forward a human rights argument against radio licensing. This raised eyebrows as licensing is not often seen in that perspective. More eyebrows were raised when an Irish group, Scagaire, used a similar argument in their comments to ComReg during another consultation a few weeks later. Article 19 logo

So we decided to ask Article 19, the highly regarded NGO based in London which monitors legal threats to freedom of expression around the world, if they had an opinion on radio licensing and communication rights and freedoms. In response they released a 4-page analysis entitled "The legitimacy of licence requirements for the use of wireless communications devices." We urge you to read it in full, but here are some of the main points, with bold used for statements we thought were especially important:

"Licence requirements applicable to all owners of a particular type of device generally contravene international law, because they do not serve a legitimate purpose; mere ownership of a particular instrument does not normally present any risk of societal harm. On the other hand, no sweeping assessment can be made of the legitimacy of licencing regimes for the use of wireless communications devices, and a case-by-case analysis is necessary..."

"Because higher power levels generally correspond to greater risks of interference, licencing of traditional high-power uses of the radio spectrum is often 'necessary' under the balancing test set out above. On the other hand, the need for regulation of modern consumer devices is on the whole far smaller. Not only do they operate at lower power levels, they are also frequently equipped with novel technologies which enable them to partly compensate the effects of interference...

"There is a risk that force of habit might lead some telecommunications regulators to over-regulate modern, low-interference devices, imposing licencing regimes or other restrictions which do not meet the necessity test. Most States are exploring alternative ways of accomplishing the goal of preventing interference with regulatory tools that are less restrictive of freedom of expression. One of these tools is the opening up of ranges of the spectrum for shared use, and the adoption of a certification system for devices which transmit data within these ranges... The availability of regulatory tools like this to guarantee 'public order in the airwaves' means that the imposition of a licence requirement for modern types of devices will often no longer prove justifiable when evaluated under the 'necessity' test. Nevertheless, every type of device must be judged by its own merits..."

NOTES

"Can spectrum licensing breach human rights law?" by Pamela Whitby and Martin Sims, PolicyTracker.com, 18 August 2005.

"New UK Group to Push for Unlicensed Spectrum," by Nancy Gohring, Wi-Fi Net News Europe, 25 February 2005.

"Open Spectrum UK's comments for Ofcom's 'Spectrum Framework Review' consultation," 15 February 2005.

"Irish Policy Group Pushes for Unlicensed Spectrum," by Nancy Gohring, Wi-Fi Net News Europe, 7 March 2005.

"Spectrum Policy as Social Policy" - powerpoint presentation by Robert Horvitz at the "Open Wireless Futures" workshop hosted by Cambridge University's Communications Innovation Institute, 19 April 2005.

"Statement on the Right to Communicate," by Article 19 for the World Summit on the Information Society (Document WSIS/PC-2/CONTR/95-E), February 2003.