106Price‑based allocation system for certain transmitter licences

#### 106 Price‑based allocation system for certain transmitter licences (1) The ACMA may determine in writing a price‑based allocation system for allocating and/or issuing specified transmitter licences (other than licences issued under section 101A or NBS transmitter licences). (2) A system so determined: (a) may apply generally or in respect of a particular area; and (b) may apply only in relation to a specified range of frequencies; and (ba) may provide for eligibility requirements (if any) for prospective licensees; and (bb) may provide for credits (if any) for prospective licensees; and (c) may require payment of an application fee, but not a fee that would be such as to amount to taxation. (3) A system so determined may: (a) impose limits on the aggregate of the parts of the spectrum that: (i) under spectrum licences; and (ii) under existing transmitter licences; and (iii) as a result of the allocation or issue of transmitter licences; may be used by: (iv) any one person; or (v) a specified person; or (b) impose limits on the aggregate of the parts of the spectrum that: (i) under spectrum licences; and (ii) under existing transmitter licences; and (iii) as a result of the allocation or issue of transmitter licences; may, in total, be used by the members of a specified group of persons. > Note: Persons or groups may be specified by name, by inclusion in a specified class or in any other way. (4) A limit imposed as mentioned in subsection (3) may be expressed to apply in relation to any or all of the following: (a) a specified part of the spectrum; (b) a specified area; (c) a specified population reach. For example, a system might specify an aggregate limit of 15 MHz per person in the band between 1800 MHz and 1900 MHz (inclusive) for a particular area. This subsection does not, by implication, limit subsection (3). (4A) A system that imposes limits as mentioned in subsection (3) may impose limits of nil in relation to specified persons or to the members of specified groups of persons. (5) A system so determined may provide that, if the issue of a licence is covered by section 153M (which deals with re‑allocation of spectrum), the ACMA may defer the issue of the licence until the relevant frequencies become available as a result of the expiry, surrender or cancellation of one or more other apparatus licences that, under section 153D, are affected by the spectrum re‑allocation declaration concerned. (6) A system so determined may require the ACMA to give specified information to the ACCC. (7) Subsections (2), (3), (4), (5) and (6) do not, by implication, limit subsection (1). (9) The Minister may give written directions to the ACMA in relation to the exercise of the power to determine procedures imposing a limit as mentioned in subsection (3). (10) A direction under subsection (9) must be published in the Gazette. (11) The ACMA must exercise its powers under subsection (1) in a manner consistent with any directions given by the Minister under subsection (9). (11A) Before determining a price‑based allocation system under subsection (1), the ACMA must consult the ACCC about whether the system should impose limits as mentioned in subsection (3) and, if so, the nature of those limits. (12) Before determining a price‑based allocation system under subsection (1), the ACMA must consult the ACCC about whether the procedures should include a requirement mentioned in subsection (6) and, if so, the nature of the requirement. (12A) A price‑based allocation system determined under subsection (1) may confer a power to make a decision of an administrative character on a person or the ACMA. (13) If a transmitter licence is issued under a system so determined, the ACMA must publish in the Gazette: (a) the successful applicant’s name; and (b) the amount that the applicant agreed to pay to the Commonwealth for issue of the licence. (14) If: (a) a transmitter licence of a kind specified for the purposes of subsection (1) would authorise a person to operate a radiocommunications transmitter; and (b) this Act or any other law requires that a person operating a transmitter: (i) of that kind; or (ii) for a purpose for which the transmitter is to be used; be within a specified class of persons; the Minister may give the ACMA a written direction requiring the ACMA, in determining a price‑based allocation system, to limit the persons eligible to apply for such a transmitter licence to: (c) persons within that specified class; or (d) persons not within, but eligible to be within, that class; or (e) persons within that class and persons not within, but eligible to be within, that class. (15) The ACMA must comply with a direction under subsection (14). (16) A direction under subsection (14) is a legislative instrument. (17) Subsections (9) and (14) do not, by implication, limit the Minister’s power to give directions otherwise than under those subsections. (18) A determination under subsection (1) is a legislative instrument.