A new approach for recreational boaters who operate VHF marine radios Response to public submissions SEPTEMBER 2012

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Published by the Australian Communications and Media Authority acma | iii Introduction

The Australian Communications and Media Authority commenced a review of the regulatory arrangements governing the operation of VHF marine radio on recreational (non-commercial) marine vessels in 2009. As part of its review the ACMA released a discussion paper in December 2010. A new approach for recreational boaters who operate VHF marine radios incorporated the outcomes of the 2009 paper and put forward two key proposals: to explore the removal of the mandatory requirement for recreational boaters to hold a certificate of proficiency for communications in the VHF bands conducted within Australian territorial waters that an organisation with closer connections with the marine boating sector should be responsible for marine radio operator qualification arrangements.

As part of the consultation, the ACMA received 362 responses—59 formal submissions and 303 online surveys. Of these, 14 were from boating/fishing clubs, 10 from marine safety organisations and 35 from individuals. All submissions are on the website.

Submitters were divided in their responses to the two key proposals. Results also varied between the submitters and the online survey respondents. Of the formal submitters, 29 per cent supported the ACMA’s preference to remove the mandatory marine radio operator’s VHF certificate of proficiency (MROVCP) requirements and 71 per cent opposed it. In comparison, 48.5 per cent of the online survey respondents supported this proposal and 51.5 per cent opposed it. The difference probably reflects the larger survey audience (including proportionately more actual boaters) than the smaller group who supplied a formal submission.

In response to the ACMA’s second proposal that operator qualifications be managed by an organisation closer to the marine community, 57 per cent of survey respondents and 41 per cent of formal submitters agreed. (Interestingly, 47 per cent of submitters had no opinion and 12 per cent preferred responsibility to remain with the ACMA).

There was strong support, albeit to differing ends, for better educational and awareness programs. Some suggested that the existing regulatory framework should be maintained and supported by promoting greater awareness of the requirement for MROVCPs. Others suggested that an awareness program for correct radio usage would be an adequate replacement for MROVCPs.

The ACMA has already heeded these concerns, undertaking an ongoing program to inform recreational boaters operating VHF marine radios of which channels to use, and when and how to use them.

4 | acma A number of stakeholders—primarily the state marine safety authorities and AMSA— confirmed that they oppose removing the mandatory VHF certificate requirement for recreational boaters. They hold this position even though compliance rates are low and the ACMA does not take any enforcement activity. There is concern that removing this requirement will lead to a lowering of standards for VHF radio communications. Stakeholders are particularly concerned that removal would have adverse safety consequences as incorrect use of VHF channels could lead to congestion, especially on the emergency channels.

Key themes to emerge from submissions to this discussion paper also echoed themes from the previous consultation responses in 2009. These included: operator qualifications are still widely seen as an important mechanism to support marine safety objectives operator qualifications act as a safeguard to inappropriate use of the VHF marine channels lack of enforcement contributes to low certificate compliance educational and awareness programs are a viable alternative to mandatory qualifications there is support for a single national body to manage a national framework for certification requirements international requirements need to be considered in any changed arrangements.

The ACMA has considered these submissions and survey responses, and the final review outcomes are outlined in the separate outcomes paper A new approach for recreational boaters who operate VHF marine radios: Outcomes of the review of VHF marine radio operator qualification arrangements—recreational (non-commercial) vessels.

The following discussion focuses on the ACMA response to the formal submissions received.

acma | 5 1/ 1. The key proposals

The key proposals published in the December 2012 consultation paper were: 1. To remove the mandatory requirement for recreational boaters to hold a certificate of proficiency for communications in the VHF bands conducted within Australian territorial waters. 2. For an organisation with closer connections to the marine boating sector to be responsible for marine operator qualification arrangements.

6 | acma 2/ 2. Formal submissions

2.1 List of submitters

AMSA Australian National Sportfishing Association Ltd Australian Recreational Boating Safety Committee Balmoral Sailing Club Cruising Division Barry Willis Boat Owners Association of NSW Inc. BoatSafe Qld Brent Dalgleish Brian Moore Brian Wood Chris Walster Coast Radio Hobart Darryl Bauer David Tones Dick Smith Elwood Angling Club Fremantle Sailing Club George Jook Graeme Lock Greg Dale Guy Dwyer Ian McKay Ian Mudge Jim Shannon Karen Reid Keith de Haan Ken Gibbs Leigh Brennan-Smith Magnum Yacht Association Marine and Safety Tasmania (MAST) Marine Rescue Hervey Bay Marine Rescue NSW Maritime Safety Queensland Martin Hales Mike Walker Newhaven Yacht Squadron NSW Maritime Ocean Racing Club of Victoria Patrick Jones Peter Hall Peter Hickey Peter Tate Phil Norton Philip Barnard Recreational Fishing Alliance of NSW Richard Hunter Richard Poole Robert Stubbs

acma | 7 Robin Kessey Rod Finlayson Ross Fenwick Scuba Divers Federation of Victoria Tom Hughes Trevor Bird Transport Safety Victoria Waverley & District Anglers Inc. Yachting Australia Yachting Victoria Yachting Victoria Inc.

8 | acma 3/ 3. Proposals, summary of submissions and ACMA responses

3.1 Background As part of the consultation approach, people were invited to either submit a formal submission or complete a short online survey. The two methods produced differing results, with the online survey results being more evenly balanced. The survey showed opinion was divided on the ACMA’s first question at the rate of 48.5 per cent (Yes) to 51.5 per cent (No), compared with 29 per cent (Yes) to 71 per cent (No) for the formal submissions. This probably reflects the larger survey audience (including proportionately more actual boaters) than the smaller group of those who supplied a formal submission.

For the ACMA’s second proposal, the online survey produced a response rate of 54 per cent (Yes) to 46 per cent (No), while the formal submissions were 41 per cent (yes) to 12 per cent (No). Interestingly, 47 per cent of submitters did not respond to this question.

Of the 59 submissions, 24 were from organisations—14 representing boating/fishing clubs and 10 representing marine safety organisations. The remaining 35 submissions were made by individuals.

3.2 Formal submissions—first proposal To remove the mandatory requirement for recreational boaters to hold a certificate of proficiency for communications in the VHF bands conducted within Australian territorial waters.

42 of the 59 submitters did not agree with the proposal to remove the mandatory requirement. This group included all 10 submitters representing marine safety organisations, eight representing boat clubs and 24 individuals. 17 submitters supported removing the mandatory requirement—five from boat clubs and 12 individuals. The main themes related to safety, inappropriate use, compliance, awareness programs, use of mobile phones, recreational/professional boaters distinction and international considerations. These issues are discussed in more detail below.

3.2.1 The safety imperative Of the formal submissions, seven respondents (five of whom were marine safety or boating/fishing organisations) expressed strong concerns that not requiring recreational boaters to have a MROVCP would be detrimental to safety. These concerns were countered by two responses that suggested there would be no detriment.

It can be inferred that, for many stakeholders, the entire review centres on safety. However, the ACMA has attempted to make it clear throughout the review that its main focus is on spectrum management and integrity, which in turn supports marine safety.

acma | 9 Individual comments about the safety aspect of VHF marine radio included: There has been an increased use of VHF marine radio by marine rescue units for vessel monitoring and tracking purposes. In undertaking its research, the ACMA made no attempt to quantify the numbers of VHF marine radio transmissions that have saved lives or prevented marine incidents. VHF radio communication remains one of the most, if not the most, effective means of communication in a distress or emergency situation. Unregulated VHF marine radio usage could lead to abuse of the emergency frequencies and an ineffective rescue. Proper training and certification must be maintained. Safety of life at sea is likely to be compromised if there is a free-for-all in the marine VHF band. The band is likely to descend into the anarchy currently experienced on 27 MHz and CB UHF. The same frequencies are used by all classes of vessels and hence operators must have the same skills and knowledge to ensure the VHF marine radio is the best chance of being rescued when sinking or on fire regardless of the type and size of the vessel. Poor radio etiquette creates confusion and can jam emergency calls—failure to follow set procedures leads to confusion and errors, with consequent risk to life and property.

Some comments, however, expressed confidence that the ACMA’s preference would not be detrimental to maritime safety: The de-regulation of 27 MHz marine radio encouraged more boat operators to use their marine radios without the fear of possible prosecution. The expanded level of radio operation considerably enhanced boating safety practice particularly upon offshore waters. There is no statistical evidence that lack of certificates has adversely affected maritime safety. ACMA comment: The best result for both spectrum integrity and marine safety will be achieved by: > introducing an appropriate recreational boating VHF marine radio qualification > maintaining an ongoing information program to advise recreational boaters of the correct frequencies and appropriate protocols to use in particular circumstances. This approach will reach a far greater proportion of the recreational boating public than any other compliance program the ACMA could undertake. By using appropriate communications methods to convey important marine radio messages to the boating public, awareness will be raised with the least amount of regulatory burden being placed onto individual boaters.

3.2.2 Inappropriate use Another seven respondents—five individuals and two boating organisations— expressed strong concern that removing the MROVCP would result in the inappropriate use of channels. While these concerns seemed to refer to etiquette breaches, the consequences of the resulting misuse and congestion could also point to safety concerns.

Comments received included: Without certification, the VHF marine band will descend into anarchy similar to the unregulated 27 MHz marine band. Radio operation is a specialised task and a comprehensive course is the only way that the integrity of the airwaves can be maintained.

10 | acma A lack of expertise is shown by the many unlicensed users. This is evidenced by poor technique and unnecessary use of the system.

ACMA comment: The ACMA views inappropriate use very seriously and has begun an ongoing information program outlining correct frequency and protocol use requirements. A number of stakeholders have previously indicated that the existing marine frequency allocations at a number of locations are inadequate. Consequently, the ACMA is undertaking a comprehensive monitoring exercise of VHF marine radio channels used by recreational boaters in Australian territorial waters. Once complete, this will provide readily verifiable results and identify areas of congestion or systemic use of poor radio protocols. This intelligence will enable the ACMA to judge whether there is congestion and, if so, if it is caused by insufficient channels being available, poor protocols or a combination of both.

3.2.3 Compliance Compliance also generated strong comments, with a few submitters claiming that lack of visible enforcement is part of the problem. Related to this, five submitters strongly warned that dismantling the regulatory framework for the operation of VHF marine radio was not an appropriate way to address issues of non-compliance.

It was also felt that while the proposal to provide education programs for the wider community may inform users, compliance may not follow without some form of deterrent. It was put forward that certification alone does not act as a deterrent to poor behaviour.

Others felt that the main value of certification was that it provided the necessary baseline information to ensure appropriate use of the VHF channels. Some indicated that if a more appropriate qualification was available to recreational boaters, then more would become qualified and the standards of operation would improve.

ACMA comment: It was recognised early in the review process that a lack of compliance activity could prevent a successful outcome from all perspectives. The ACMA’s main focus on marine communications is spectrum integrity, which in turn supports the marine stakeholders’ main focus—marine safety. The ACMA compliance framework recognises information and awareness programs as legitimate first approach compliance strategies and allows for a graduated escalation of enforcement action in response to specific cases of non-compliance. The ACMA began an ongoing information and awareness program in February 2011. The current messages are how to correctly use appropriate channels and follow radio protocols.

3.2.4 Awareness programs There was strong support, albeit to differing ends, for better educational and awareness programs. Some suggested that there ought to be greater awareness of the requirement for MROVCPs with the existing regulatory framework maintained. Others suggested that an awareness program for correct radio use would be an adequate replacement for MROVCPs.

Points made about information and awareness also included: With 58 per cent of VHF marine radio owners unaware that a radio operator’s certificate is mandatory, it would appear that the ACMA has been unsuccessful in properly informing the community of radio operator certification requirements to date.

acma | 11 Community information about marine radio usage would be better promoted via relevant and accessible training. Deregulating radio operator certification training will be counterproductive to maintaining spectrum integrity. Misuse of VHF channels is brought about by failure to educate, not failure of certification, and compliance will only be achieved by enforcement. Formal education is the only way to get the message across, supported by positive enforcement to ensure VHF remains a viable means of communication for vessels. There is a lack of awareness among recreational boaters of the requirement to comply with the conditions attached to the class licence.

Others indicated that the examination itself was a method of increasing awareness and felt that: Replacing the current certification system with a mass information and awareness program will reduce on-water safety. Having to study and pass a simple exam at least provides for some knowledge of correct radio procedures.

Some submitters also suggested increasing awareness at points of sale of VHF marine radios. Respondents indicated that: New owners of VHF marine radios are given little guidance on correct use. It is not so much the failure of the certification process but failure to provide appropriate information on VHF radio use. It has become very easy to obtain a VHF radio, either new or second-hand. Any need for a certificate is often the last thing the seller would mention, even if known.

While there was general support for increased awareness, some went a bit further by suggesting that an awareness program on proper use of VHF marine radio would be a sufficient replacement for certification. Some respondents advocated that the improper use of radios can best be prevented by better information and awareness programs, stressing that such programs would need to be conducted on a regular basis. They indicated that these programs should focus mainly on distress channel use and procedures.

12 | acma Some supporters of removing the mandatory certification requirement for recreational fishermen in state/territory waters cautioned that this should not also remove the responsibility to educate and make all users aware of the operational requirements for such equipment.

ACMA comment: The ACMA commenced an ongoing information and awareness program in February 2011. The current messages are how to correctly use appropriate channels and follow radio protocols. A variety of methods have been used to broadcast this information to all recreational boaters, including: > developing a new VHF marine radio program section on the ACMA website > providing links to information on the frequencies and protocols to use and to major stakeholders > designing and promoting dial stickers and information cards carrying the key messages—these are being widely distributed, including to some BIA members for point-of-sale supply > publishing articles in recreational boating and fishing magazines > partnering with the Australian Maritime College (AMC) to provide the Marine Radio VHF Handbook for free download during 2011–12 > purchasing of the handbook for free distribution at boat shows and other events > producing and distributing VHF marine radio videos to interested marine radio users > attending capital city and regional boat shows, and similar events (ACMA and AMC staff, in conjunction with other marine safety stakeholders).

3.2.5 Use of mobile phones A few submissions alluded to mobile phone communications without addressing the issue directly. However, a comment from AMSA on the subject is worth consideration: NMSC statistics cited in the ACMA review indicate an increase in reporting of ‘marine incidents’ by mobile telephone. However, the statistics do not indicate how many of these incidents involved actual distress situations. Point-to-point communications are not a sufficient means of broadcasting distress and should not be considered viable alternatives to Marine VHF in terms of boating safety.

ACMA comment: The ACMA does not advocate mobile phones as the first choice to summon help at sea. There is a worldwide distress and safety system in place based on using appropriate marine radio facilities. The current information program supports this approach. Mobile phones should not be relied on as the sole communications device when boating.

3.2.6 Recreational/professional boaters distinction A few submitters suggested that any distinction between recreational and professional boaters would be unfair because recreational operators use the same frequencies as commercial operators—and so they should follow the same etiquette and communications rules. It was asserted that if recreational boaters don’t follow this approach, the safety of the commercial boating community could be at risk.

acma | 13 Conversely, others thought it important to distinguish between the regulation of these two classes of boaters. They advocated that having a certificate that is more appropriate to the needs of recreational boaters would support an improved take-up rate. An appropriate qualification would focus more on practical use, safety and operator protocol using competency-based training principles

ACMA comment: The ACMA is acutely aware that all VHF marine radio users operate on the same frequencies and framework (there are only a few exceptions where different working frequencies are allocated to various marine activities). It makes absolute sense for all to abide by the same protocols when using these marine channels. However, there is a strong push by submitters for the ACMA to re-examine the value of a more appropriate qualification that could be offered to all recreational boaters.

3.2.7 International considerations Several submitters highlighted that whatever qualifications framework was finally decided on would need to conform to the requirements of the ITU Radio Regulations, and that any changes should only occur if there is international agreement.

ACMA comment: The ACMA is satisfied that Australia has the sovereign right to legislate with regard to marine radio within Australian territorial waters without impacting on the ITU Radio Regulations obligations.

3.3 Formal submissions—second proposal An organisation with closer connections to the marine boating sector should be responsible for marine operator qualification arrangements.

As mentioned, there were strong results from the formal submissions, with 24 favouring an organisation closer to the marine community to manage qualifications. This support came primarily from individuals and boating/fishing clubs—and seven submitters did not support this preference. These respondents included national and state bodies involved in marine safety, while 28 submitters did not offer an opinion on this proposal.

3.3.1 ACMA to retain responsibility for marine radio operator qualifications Seven submitters believed that the ACMA should retain responsibility for marine radio certification. Critical to this view was the need for a national body to oversee standards, with the ACMA best placed to do this. There was support for delivery of the qualification to be devolved to state-based authorities or the network of RTOs.

14 | acma 3.3.2 An organisation other than the ACMA should be responsible for marine radio operator qualifications Twenty-four submitters agreed with the ACMA proposal, with most suggesting that state-based marine authorities would be best placed and that it could be managed as part of the boat licence or skipper’s ticket process. Others were comfortable with state authorities accrediting providers such as volunteer marine rescue organisations to deliver the qualifications.

ACMA comment: The ACMA agrees that an Australia-wide approach to certification/qualification is the ideal. However, as stated in the discussion paper, the ACMA does not see itself as best placed to accomplish this role on its own. Other mechanisms will need to be explored. The model in place for commercial qualifications, where AMSA and the states use the RTO framework, is one the ACMA is very keen to explore for recreational boaters. Under the ITU Radio Regulations, it is possible for the ACMA, in conjunction with the states, to develop a more appropriate qualification for recreational boaters operating a VHF marine radio within Australian territorial waters.

acma | 15