39Marketing plans—unencumbered spectrum

#### 39 Marketing plans—unencumbered spectrum (1) The ACMA may, by legislative instrument, prepare a marketing plan for issuing spectrum licences that authorise the operation of radiocommunications devices: (a) at the frequencies specified in the plan; and (b) within the area or areas specified in the plan. (2) If an apparatus licence authorises the operation of radiocommunications devices: (a) at one or more frequencies; and (b) within one or more areas; the ACMA must not make a marketing plan that applies to the issue of spectrum licences that authorise the operation of radiocommunications devices: (c) at those frequencies; and (d) within those areas; unless the marketing plan provides that one or more spectrum licences are to be allocated by direct allocation to the holder of the apparatus licence. (3) The marketing plan need not require spectrum licences issued in accordance with it to apply to the whole of the area or areas to which the plan applies. (4) Without limiting the matters that the marketing plan may contain, it may indicate: (a) the procedures to be followed for issuing spectrum licences in accordance with the plan; and (b) the timetable for issuing spectrum licences in accordance with the plan; and (c) how the spectrum dealt with under the plan is to be apportioned amongst the spectrum licences to be issued; and (d) how much of the spectrum dealt with under the plan is to be reserved for public or community services; and (e) the conditions, or types of conditions, that may be included in spectrum licences to be issued. (5) In indicating the procedures to be followed for issuing spectrum licences, the plan may, for example, indicate whether the licences are to be allocated: (a) by auction; or (b) by tender; or (c) by allocation for a pre‑determined price or a negotiated price; or (d) by direct allocation; or (e) by a combination of any or all of the following: (i) auction; (ii) tender; (iii) allocation for a pre‑determined price or a negotiated price; (iv) direct allocation. (6) The marketing plan must not be inconsistent with: (a) the spectrum plan; or (b) a frequency band plan that relates, wholly or partly, to the part of the spectrum to which the marketing plan relates. (7) A marketing plan must not relate wholly or partly to a part of the spectrum referred to the ACMA under subsection 31(1) or (1A), unless the part, or each of the parts, of the spectrum to which the plan relates is covered by a determination under subsection 31(2).