This article was originally published in dpl news on 23 September 2022.
Legal certainty is a principle of certainty required to ensure guarantees over our property and activities. This relates to the establishment and enforcement of the rule of law or “the rules of the game”.[1]
Public policies are part of these rules and set the way forward. When a country issues a public policy, it is like starting a race; those interested in participating line up and wait for the starting flag of the public policy issuance, aiming to do their best according to the rules of the game.
On 22 October 2020, Chile’s Undersecretary of Telecommunications (Subtel) published the decision to allow the use of the 5.925-7.125 MHz band for low-power devices.
This decision was based on the need “for users, importers, and vendors to have clarity regarding the frequency ranges and power levels in which low-power devices are allowed to operate for indoor use”.[2] However, almost two years after this decision, Subtel modified this public policy on the 6 GHz band.
On 14 September 2022, Subtel published its desire to “await the decision on international harmonisation to be made at the next World Radiocommunication Conference (WRC-23), indicated in item 1.2 of the Agenda for that meeting”.
Through this argument, Subtel resolved to modify the frequency range of the 5.925-7.125 MHz band, leaving it at only 500 of the previously authorised 1.200 MHz, 5.925-6.425 MHz.[3]
This decision raises three points for reflection concerning legal certainty:
- WRC-23 is a conference that impacts an international treaty: the Radio Regulations of the International Telecommunication Union (ITU). The ITU’s previous conference, held in 2019, agreed on the agenda of WRC-23. In this regard, when the first decision was taken in Chile, there was already full certainty on WRC-23 Agenda item 1.2.
Agenda item 1.2 concerns sharing and compatibility studies in five frequency bands to identify the feasibility of their operation with IMT technologies.
Among these bands are the frequencies 6.425-7.025 MHz for Region 1 and the 7.025-7.125 MHz band worldwide.[4] It is worth recalling that Chile is part of WRC-23, as well as ITU Region 2. As such, the band related to the studies is 7.025-7.125 MHz.
At the time, Chile, the United States, Canada, and Brazil, among other countries in the region, decided on this 100 MHz in advance to establish as unlicensed spectrum a continuous 1,200 MHz band, 5.925-7.125 MHz, and generate certainty for both their development and that of existing services in the band.
- Subtel’s first resolution emphasised clarity for users, importers, and vendors on the frequency ranges and power levels at which low-power devices are allowed to operate.
They were informed on 22 October 2020 of the conditions applicable to the 5.925-7.125 MHz band, giving them legal certainty regarding their activities and uses.
The new resolution published on 14 September 2022, almost two years on from the previous resolution, does not seem to recognise the devices that users, importers, and vendors have to operate in the 5.925-7.125 MHz band.
In this regard, it is not known what actions Subtel is proposing to take with respect to these persons and devices, nor, if it intends to take any decision retroactively, how to modify the operation of such devices.
The ITU will not establish an international harmonisation decision for Chile and Region 2 on the use of the 6.425-7.025 MHz band, since this band is not under study for Region 2. Therefore, waiting for a decision that will not be made does not generate certainty as to what Subtel will resolve to do in the future.
- One element that cannot be observed in Subtel’s decisions is public consultation.
That is, it does not seem to be mandatory that the authority is obliged to carry out this exercise prior to the issuance of a resolution such as the ones we have discussed.
Public consultation is a mechanism to hear proposals and comments from citizens and all interested parties regarding a regulatory project.
It is a fundamental principle of transparency and citizen participation that other regulators, such as the FCC in the United States, the IFT in Mexico, and Anatel in Brazil, apply to the issuance of regulations.
The application of public consultation makes it possible to strengthen the conditions of predictability of a new regulation or the modification of an existing regulation, which strengthens the conditions of legal certainty.
In this regard, the United Nations Conference on Trade and Development (UNCTAD) has noted that “a workable definition of legal certainty relates to its pragmatic application of the law, which emphasises the guiding principle of ensuring the predictability of decisions, which includes both the notion of legitimate expectation and the non-retroactivity (or irretrospectivity) of the law”.[5] Public consultation allows for prior knowledge of draft regulations and the opportunity for interested parties to comment on them.
Public consultation allows for prior knowledge of draft regulations and the opportunity for interested parties to comment on them, giving life to the guarantee of a hearing that many countries are obliged to provide as part of the individual guarantees of their citizens.
In this way, it is possible to have some knowledge of the proposed regulation in advance.
Legal certainty
Legal certainty is a condition that favours investment, trade, and job creation.
Public policies are part of the rule of law that provides confidence and certainty to investors and the population in general.
Undoubtedly, countries are sovereign and can make the decisions they consider best for their inhabitants.
However, a decision-making scheme in which a previously made decision is reversed from one day to the next – and without prior notice – is an issue that does not strengthen legal certainty.
Beyond the discussion on the use of the 6 GHz band, it is essential to have certainty on the conditions under which the different existing and future services can be developed for this band.
Changing these conditions, as the Chilean Undersecretariat of Telecommunications has done, puts the legal certainty that had been generated in 2020 on hold, with no further decision regarding Chile set to be made at WRC-23.
