I am glad that a sense of humor has crept into this thread!
I am now going to paste my reply from the ACMA to my emailed list of questions. I am not going to name the person providing this but he is a senior person in the organization. I am amazed at the careful detail he has provided us. I think that a previous poster who said that the ACMA does not care about hams has been proved wrong.
My questions are in bold type.
BEGINNING OF ACMA RESPONSE
Thank you for your enquiry.
Generally speaking all radiocommunications transmitters must be licensed. There are three types of radiocommunications licences:
• apparatus licences,
• class licences,
• spectrum licences.
Firstly we should separate two broad definitions that are referred to within your questions. These are equipment which falls into the category of Amateur radio equipment and is authorised by an amateur apparatus licence and equipment which is designed for Land Mobile frequencies which must be authorised by a Land Mobile apparatus licence.
Equipment sold as an amateur radio transceiver will typically cover a set of amateur bands. Transceivers designed by the major manufacturers are normally designed for particular markets. A radio for the Australian market will allow transmission in a bandwidth which covers the frequencies allocated for use in Australia. Australian retailers will normally stock this equipment or equipment for another market which approximates the bands which are appropriate for use in Australia.
Amateur operator qualifications are required to be held by an amateur station licensee. The level of that qualification determines the licensing option, for which a station operated by that individual, is issued. An amateur station (and its associated equipment) licensed under an Advanced licensing option, Standard licensing option or a Foundation licensing option must be operated in accordance with the relevant section of the Radiocommunications Licence Conditions (Amateur Licence) Determination No.1 of 1997 (Amateur LCD). The amateur station licence authorises the holder to operate that station. Links to Amateur radio information papers and the Amateur LCD can be obtained from:
http://www.acma.gov.au/WEB/STANDARD/pc=PC_300165
The Radiocommunications Licence Conditions (Land Mobile Licence) Determination No. 1 of 1997 (Land Mobile LCD) contains the conditions applicable to equipment authorised by a Land Mobile apparatus Licence. Some of your questions below relate to frequency coverage outside that Amateur Bands that fall into spectrum where a licence other than an amateur radio licence is required, typically these are land mobile frequencies but other licence types may also apply. Further information regarding the Land Mobile licence type and the Land Mobile LCD can be obtained from:
http://www.acma.gov.au/WEB/STANDARD/pc=PC_1276
The Land Mobile LCD requires that equipment complies with particular equipment standards. Equipment that is currently manufactured for operation under a Land Mobile licence is required to meet the requirements of the ACMA’s Equipment Compliance and Labelling arrangements. Further information regarding these arrangements is available at:
http://www.acma.gov.au/WEB/STANDARD/pc=PC_2754
Normally, an amateur radio transceiver will not meet the equipment standards requirements of the Apparatus Licence conditions for the Land Mobile Service.
Your email makes reference to a number of interference investigations and awareness activities currently underway. This response will not make particular reference to any of those individual activities, however I can advise you that the following non-compliance issues have been discovered:
• Amateur radio equipment modified to allow transmission on Land Mobile frequencies
• Land Mobile equipment that does not meet the requirements of the Equipment Compliance and Labelling arrangements {See answer 8 and Land Mobile information above}
• Land Mobile equipment with transmit operation enabled, for which a licence or authority is not held (including emergency service frequencies)
• Operators with appropriate amateur radio qualifications and equipment who have been unable to demonstrate compliance with their licence conditions (e.g. determining power output where the licence type requires a power output lower than what the equipment is capable of)
• Use of amateur radio equipment on CB bands, that does not comply with the CB class licence conditions
1. Is it legal for a person with a “foundation license” to own a transceiver capable of transmitting on bands not authorised for use by a foundation license?
The Amateur LCD outlines the conditions of each licence option. These conditions relate to frequencies, emissions types and modes, transmission powers and other restrictions that the licensee must comply with when operating his / her station.
An amateur radio licence does not permit the operation or possession of equipment that is programmed or configured to transmit on frequencies that are subject to the requirements of other non-amateur licence types, such as a Land Mobile apparatus licence.
A licensee may possess amateur radio equipment for which it is possible to make transmissions on amateur bands or at power levels other than permitted by their particular licence type, provided these are not programmed or configured to operate outside of the amateur band requirements generally. However, the licensee should be able to demonstrate that he / she can operate within the conditions of their applicable licence.
2. Is it legal for a person holding a “standard license” to own a transceiver capable of transmitting on bands not authorised for a standard license?
A licensee may possess amateur radio equipment for which it is possible to make transmissions on amateur bands or at power levels other than permitted by the licence. However, the licensee should be able to demonstrate that he / she can operate within the conditions of their licence.
3. Is it legal for a person with a “standard license” to own a transceiver capable of transmitting across the entire 6m band (50-54MHZ) when their licence stipulates that they cannot transmit below 52MHZ?
A licensee may possess amateur radio equipment for which it is possible to make transmissions on amateur bands or at power levels other than permitted by the licence. However, the licensee should be able to demonstrate that he / she can operate within the conditions of their licence.
4. Is it legal for a person with an “advanced license” and living in Queensland, a transceiver capable of operating across the entire 6m band when there are frequency restrictions in place in Queensland?
A licensee may possess amateur radio equipment for which it is possible to make transmissions on amateur bands or at power levels other than permitted by the licence. However, the licensee should be able to demonstrate that he / she can operate within the conditions of their licence.
5. Is it legal for a person holding an advanced license to own an older VFO-controlled transceiver that is capable of transmitting up to 3.9MHZ (and in some cases 4.0MHZ) which is beyond the upper edge of the Australian 80m amateur band (3.5 -3.7 and 3.776 – 3.8MHZ)?
The compliance issues with amateur radio equipment discovered by the ACMA recently have related to deliberate modifications to amateur equipment to allow operation beyond the amateur bands. For example, amateur equipment modified to transmit over the range normally permitted by the “general coverage receive” feature of the radio, from 1.6 MHz to 30 MHz in the case of a HF transceiver and 420 MHz – 470 MHz in the case of a UHF radio.
With regard to possible compliance action relating to older amateur equipment, the licensee should be able to demonstrate that the equipment has not been modified to transmit beyond the amateur band. When determining whether to take compliance action the ACMA would look at all the relevant circumstances. This would include but not be limited to whether the specifications page of the owner’s manual supports the frequency range of operation of the device.
6. Is it legal for a person holding an advanced license to own and use on authorized frequencies only, an older VFO-controlled transceiver that is capable of transmitting on the now-deleted 11m amateur band (approximately 26.5MHZ )?
This is essentially the same as the answer above. However, removal of unauthorised bands should be done where possible to ensure there is no exposure to the possession elements of the Radiocommunications Act 1992 (see below).
7. Is it legal for a person who holds an advanced license to own HF, VHF, or UHF radios brought on the surplus market and presently capable of transmitting on non-amateur frequencies, with the express purpose of converting these radios for use on amateur bands when part of the conversion process would be to disable any ability to transmit on non-amateur frequencies?
Possession of equipment programmed or configured to operate on Land Mobile frequencies is not permitted unless a licence or authority is held for that frequency. Section 47 of the Radiocommunications Act 1992 (the Act) states:
47 Unlawful possession of radiocommunications devices
(1) Subject to section 49, a person must not have a radiocommunications device in his or her possession for the purpose of operating the device otherwise than as authorised by:
(a) a spectrum licence; or
(b) an apparatus licence; or
(c) a class licence.
Penalty:
(a) if the radiocommunications device is a radiocommunications transmitter:
(i) if the offender is an individual—imprisonment for 2 years; or
(ii) otherwise—1,500 penalty units; or
(b) if the radiocommunications device is not a radiocommunications transmitter—20 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).
Having a radiocommunications device in your possession for the purpose of operation is clarified further in Section 48 of the Act.
48 Additional provisions about possession of radiocommunications
devices
(1) Without limiting section 47, a person is taken, for the purposes of that section, to have a radiocommunications device in his or her possession for the purpose of operation if it is in his or her possession, otherwise than for the purpose of supply to another person, and can be operated merely by doing one or more of the following:
(a) connecting the device to an electric power supply by means of an electric plug or other electrical connection;
(b) connecting a microphone to the device by inserting a microphone plug into the device;
(c) switching on the device;
(d) switching on any other equipment relevant to the device’s operation;
(e) adjusting settings by manipulating the device’s external switches, dials or other controls;
(f) connecting the device to an antenna.
(2) Subsection (1) only applies in the absence of any evidence to the contrary.
(3) A reference in this Division to a person having a radiocommunications device in his or her possession includes a reference to the person having it under control in any place whatever, whether for the use or benefit of that person or another person, and although another person has the actual possession or custody of it.
It therefore follows that if a modification more substantial than those listed in s48(1) was required to operate the radio outside the authorisation under the licence, the person may not be considered to possess the radio for the purposes of s47. If it was not a matter of simply reprogramming the radio and more significant modification was required, this could be commenced soon after obtaining the radio. For example, in the case of modifying a VHF midband radio to the 6 metre band, where modification to the VCO is required, the VCO could be removed before the device is placed into storage.
8. Is it legal for a person with an amateur licence to own a newly-manufactured, commercially-produced VHF or UHF transceiver that is capable of transmitting outside of the Australian amateur bands (such as those currently available from China) without taking steps to ensure that transmitting outside the amateur bands is not possible?
Please note that I am asking about the legality of owning the equipment and if it is legal to own it, is legal to use it to transmit on the frequencies authorised by the licence class. I realise that any transmission on non-authorised frequencies is illegal.
The equipment that you are referring to available from China is often marketed via online auction sites as “Two way radios” or “transceiver radio walkie talkies”. Generally, these radios are front panel programmable and may transmit 136 – 174 MHz and 400 – 520 MHz without modification. Because this equipment is not restricted to amateur bands, this equipment cannot be classified as amateur radio equipment.
Equipment meeting this description is subject to the requirements of the Land Mobile LCD. In our experience, this equipment has not been tested nor labelled to indicate compliance with the Equipment Compliance and Labelling arrangements. A Land Mobile licensee operating this equipment would be subject to Section 113 of the Act which relates to Contravention of Licence conditions.
An amateur operator possessing this equipment without a licence authorising the frequencies for which it can operate would be subject to section 47 of the Act.
A number of Australian retailers provide similar equipment which has been modified to only operate on amateur frequencies. Amateur operators should ensure that these devices operate in accordance with the conditions of the amateur LCD before purchasing this equipment.
As discussed today, I hope that this response settles some of the concern in the community. Should any party which to discuss this matter further the best form of contact is via the email address
interference@acma.gov.au. In saying that, the above response has been worded to assist your colleagues to look at the legislation and their licence conditions and satisfy themselves that they are familiar with their responsibilities as amateur operators.
END OF ACMA response.