현행법상 주파수 재할당의 법적 쟁점

Abstract

The current law entails the reallocation of radio frequency for the purpose of protecting its nature of property right as well as its efficient use and management. The reallocation of radio frequency falls under the “icensing” under purpose of study as is the case with radio frequency allocation, and bears the characteristics of discretional act. Hence, once the predetermined usage period of radio frequency expires,the Korea Communications Commission can freely determine whether to reallocate or not. However, problems may arise in respect to whether the Korea Communications Commission’s reallocation of radio frequency with expired usage period to the existing license holder can be in a reduced manner, so called “reduced reallocation”, in which case the partial elimination of unused radio frequency bandwidth from the allocation range will occur. In this regard, taking into consideration that reallocation is a discretionary act and referring to the relevant regulations allowing for imposition of conditions at the time of reallocation, it would only seem legitimate to view reduced reallocation as possible. Furthermore, such reduced reallocation cannot be seen as causing severe damage to the users, and because reduced reallocation is determined six months prior to expiration through the reallocation evaluation process, it is reasonable to assume that the duty of prior notice as stated in Radio Waves Act Article 16 Clause 3 does not arise with regards to reduced reallocation. Meanwhile, although the radio frequency usage right bears the characteristics of property rights, not only is there a lack of legal bases for compensation for loss under the current relevant law but also because the usage period has been guaranteed, it is difficult to recognize the special loss; and thus, cases of compensation of loss duties arising from the rejection of radio frequency reallocation are expected to be rare. Further, in the case of radio frequency reallocation, discussion on whether recollection of unused radio frequency can be imposed as a government requirement in distinction to the reduced reallocation needs to take place. Firstly, radio frequency reallocation falls under the beneficial administrative act, which enables the imposing of government requirements even in the event of the lack of clear legal bases. Although it will be under the general principle restrictions of administrative law, such type of government requirement is hard to be seen as contradicting the principle of proportionality or the principle prohibiting the imposition of irrelevant requirements. To avoid legal controversy, nevertheless, it may be worthwhile to consider providing legislative reasoning for the imposing of such government requirements. Lastly, in case that radio frequency reallocation is rejected, issues may arise in regards to whether revocation of the business license using the radio frequency must be accompanied, but the current law states that rejection of reallocation does not suffice as a reason for immediate revocation of relevant business licenses. However, considering the public interest aspect of facilities-based telecommunications service,provision of a legislative solution seems to be in need.