The AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY makes this Determination under sections 60 and 294 of the Radiocommunications Act 1992.
Dated 28 August 2015
Richard Bean
[signed]
Member
James Cameron
[signed]
Member / General Manager
Australian Communications and Media Authority
Part 1 Preliminary
Overview of Part 1This Part deals with preliminary matters, such as the commencement of the Determination, and defines terms and concepts used in the Determination.
1.1 Name of Determination
This Determination is the Radiocommunications (Spectrum Licence Allocation – 1800 MHz Band) Determination 2015.
1.2 Commencement
This Determination commences on the day after it is registered.
Note All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.
1.3 Purpose of Determination
This Determination sets out the procedures to be applied:
(a) in allocating spectrum licences in the 1800 MHz band:
(i) by an ascending bid simultaneous multiple round auction of spectrum lots that then become the subject of spectrum licences; or
(ii) by allocation for a pre‑determined price; and
(b) in fixing spectrum access charges payable by licensees for issuing spectrum licences.
Note For subparagraph 1.3 (a) (ii), see Part 5.
1.4 Definitions
(1) In this Determination, unless the contrary intention appears:
ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
ACN has the meaning given by section 9 of the Corporations Act 2001.
Act means the Radiocommunications Act 1992.
active: see subclause 5 (2) in Schedule 1.
activity target: see subclause 5 (1) in Schedule 1.
applicant means a person who has applied for registration as a bidder.
applicant information package means a package containing the information, forms and other documents set out in subsection 4.5 (1).
application deadline: see paragraph 4.4 (1) (f).
application form means the document approved by the ACMA under paragraph 4.5 (1) (h).
ARBN has the meaning given by section 9 of the Corporations Act 2001.
associate: see section 2.2.
auction means an auction of spectrum lots held in accordance with this Determination.
auction manager means the person appointed under section 4.1.
auction period means the period from the eligibility deadline to the close of an auction under clause 19 in Schedule 1.
auction system means the system provided by the ACMA for bidders to participate in an auction.
balance of the pre‑determined price means the amount worked out in accordance with subsection 5.3 (2).
balance of the winning price means the amount worked out in accordance with section 7.6.
bidder means a person registered by the ACMA as a bidder under section 6.2.
bidding instruction means any of the following:
(a) a bid on a lot;
(b) a bid withdrawal on a lot;
(c) the exercise of a waiver;
(d) an instruction to the auction manager not to exercise a waiver on the bidder’s behalf.
carrier has the same meaning as in the Telecommunications Act 1997.
Chair means the Chair of the ACMA.
confidential information: see section 3.1.
Designation Notice means the Radiocommunications (Spectrum Designation) Notice No. 1 of 2014.
eligibility deadline: see paragraph 4.4 (1) (g).
eligibility payment means a payment made by an applicant under section 4.16.
eligibility percentage has the meaning given by paragraph 4.14 (b).
eligibility points, in relation to a bidder and a round, means the number of points the bidder may use to bid on lots in an auction.
high bid, for a round, means the highest bid made on the lot in the bidding round.
initial eligibility points, for a bidder, means the number of eligibility points secured by the bidder under section 4.16.
lot: see subsection 1.5 (1).
lot rating means the value of a lot in eligibility points as determined by the ACMA under section 4.6.
Marketing Plan means the Radiocommunications Spectrum Marketing Plan (1800 MHz Band) 2015.
pre‑determined price, for a spectrum licence for a lot, means the price, determined under subsection 5.3 (1), of the licence for the lot.
pseudorandom means using computer-generated numbers that satisfy a statistical test for randomness, but are not generated by a truly random physical process.
public mobile telecommunications service has the same meaning as in the Telecommunications Act 1997.
Re-allocation Declaration means the Radiocommunications (Spectrum Re-allocation―Regional 1800 MHz Band) Declaration 2015.
register means the register of bidders maintained by the ACMA under section 6.1.
related body corporate has the same meaning as in the Corporations Act 2001.
related person, in relation to an applicant or bidder that is a body corporate, means any of the following:
(a) a director or secretary of the applicant or bidder;
(b) an employee of the applicant or bidder;
(c) an employee of a related body corporate that provides services to the applicant or bidder.
results: see subclause 1 (2) in Schedule 1.
roaming services agreement means an agreement between carriers for the principal purpose of enabling end-users of public mobile telecommunications services supplied by another carrier, in geographic locations where the first-mentioned carrier’s public mobile telecommunications services are not available.
size: see subsection 1.5 (2).
specified group of persons, in relation to an applicant or bidder, means the applicant or bidder and all of the applicant’s or bidder’s associates.
Note The definition of specified group of persons is affected by subsection 2.3 (2).
Spectrum Licence Limits Direction means the Radiocommunications (Spectrum Licence Limits―Regional 1800 MHz Band) Direction.
stage means a group of successive rounds of an auction to which the same eligibility percentage applies.
starting price, for a lot, means the amount set by the ACMA under paragraph 4.6 (1) (c).
working day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory, New South Wales or Victoria.
1800 MHz band: see Schedule 2.
(2) In this Determination, the range of numbers that identifies a frequency range includes the higher, but not the lower, number.
(3) In this Determination, a reference to time is a reference to the legal time in the Australian Capital Territory.
Note Several other words and expressions used in this Determination have the meaning given by section 5 of the Act. For example:
Note: ACCC
Note: ACMA
Note: spectrum
Note: spectrum licence.
(4) In this Determination, unless the contrary intention appears a reference to another legislative instrument is a reference to that other legislative instrument as in force from time to time.
Note 1 For references to Commonwealth Acts, see section 10 of the Acts Interpretation Act 1901; and see also subsection 13 (1) of the Legislative Instruments Act 2003 for the application of the Acts Interpretation Act 1901 to legislative instruments.
Note 2 All Commonwealth Acts and legislative instrument are available on the ComLaw website at http://www.comlaw.gov.au.
1.5 Lots
(1) In this Determination:
lot means a part of the spectrum identified as a lot in the Marketing Plan, characterised by frequency ranges and a geographic region.
(2) The size of each lot, in megahertz, is the lot size set out in the Marketing Plan.
Note See section 2.4 of the Marketing Plan.
1.6 Lodgement of documents
(1) A document may be given to the ACMA under this Determination by:
(a) delivering the document to the physical address specified in the applicant information package; or
(b) emailing the document to the email address specified in the applicant information package in accordance with subsection (2); or
(c) faxing the document to the fax number specified in the applicant information package in accordance with subsections (3) and (4).
Note Subsections 4.7 (3), 4.12 (6), 4.15 (4) and 4.16 (6) have additional requirements for certain documents lodged by email or fax.
(2) If a document is emailed:
(a) the document must be included as an attachment; and
(b) the document must be:
(i) if the document is a statutory declaration, statement under section 7.3 or deed—in PDF format or another format approved by the auction manager; or
(ii) if the document is not a statutory declaration, statement under section 7.3 or deed—in Word, RTF or PDF format or another format approved by the auction manager.
(3) If a document is faxed, the document must be accompanied by a cover sheet that states:
(a) the sender’s name, postal address, telephone number and fax number; and
(b) the number of pages transmitted, including the cover sheet.
(4) If the faxed document is a completed application form, a completed eligibility nomination form, a statutory declaration, a statement under section 7.3 or a deed, the cover sheet must also state the type of document.
1.7 Payment of amounts
(1) An amount paid to the ACMA on behalf of the Commonwealth under this Determination must be paid in Australian currency.
(2) An amount must be paid by bank cheque or by electronic transfer.
(3) An electronic transfer must be made into the bank account with the following details:
(a) Bank—ANZ Bank;
(b) Branch—Belconnen;
(c) BSB number—012-951;
(d) Account number—8379 24272;
(e) Account name—ACMA Official Administered Receipts.
(4) An amount is taken to have been paid by a deadline specified in this Determination if either:
(a) the ACMA receives a bank cheque for the full amount on or before the deadline; or
(b) both:
(i) the ACMA receives evidence that an electronic transfer of the full amount was made on or before the deadline (such as a transfer receipt); and
(ii) the amount is received in the ACMA’s bank account no later than 3 working days after the deadline; or
(c) the ACMA receives other evidence which satisfies the ACMA that the person making the payment has taken all reasonable steps to pay the amount on or before the deadline.
(5) An amount due under this Determination is not paid in full if bank charges or government duties imposed on a payment reduce the net payment to less than the amount due.
Note The effect of this subsection is that an applicant or bidder must add the value of any bank charge or government duty to the amount of a payment.
1.8 Statutory declaration for body corporate
A statutory declaration required to be made in this Determination by a body corporate must be made by a director or secretary of the body corporate.
Part 2 Limits on allocation of spectrum
Overview of Part 2This Part defines concepts related to limiting the amount of spectrum that a person or group of persons may be allocated as a result of the procedures in this Determination.
2.1 Meaning of allocation limits
In this Determination, a reference to the allocation limits is a reference to the requirement that the allocation of spectrum licences under this Determination, for the allocation of part of the spectrum, must not result in a person or specified group of persons having permission to use more spectrum than a limit set out in Schedule 3 for that part of the spectrum.
Note The Minister has given directions to the ACMA, under subsection 60 (10) of the Act, that limits be imposed on the aggregate of the parts of the spectrum that, as a result of the allocation of spectrum licences under this Determination, may be used by a person or specified group of persons.
2.2 Meaning of associate
(1) In this Determination:
associate, in relation to a person, means:
(a) for a body corporate:
(i) a director or secretary of the body corporate; or
(ii) a related body corporate; or
(iii) a director or secretary of a related body corporate; or
(iv) an individual who controls at least 15% of the voting power or holds at least 15% of the issued shares in the body corporate; and
(b) for an individual:
(i) the individual’s spouse; or
(ii) the individual’s de facto partner within the meaning of the Acts Interpretation Act 1901; or
(iii) a body corporate in which the individual controls at least 15% of the voting power or holds at least 15% of the issued shares; or
(iv) a body corporate of which the individual is a director or secretary; or
(v) a body corporate that is a related body corporate in relation to a body corporate of which the individual is a director or secretary; and
(c) for any person—any other person (other than the Commonwealth when represented by the ACMA) who has a relevant agreement with the person that:
(i) is for the use by a party to the agreement of spectrum licensed to either of those parties under a spectrum licence for a part of the spectrum referred to in the Re-allocation Declaration; or
(ii) relates to the acquisition of a spectrum licence for a part of the spectrum referred to in the Re-allocation Declaration.
(2) For paragraph (c) of the definition of associate in subsection (1), a relevant agreement means an agreement, arrangement or understanding:
(a) whether formal or informal or partly formal and partly informal; and
(b) whether written or oral or partly written and partly oral; and
(c) whether or not having legal or equitable force and whether or not based on legal or equitable rights;
other than a roaming services agreement or an agreement between carriers provided for by or under the Telecommunications Act 1997 or Part XIC of the Competition and Consumer Act 2010.
2.3 Affiliation between applicants or bidders
(1) Two applicants or bidders are affiliated if:
(a) the applicants or bidders are associates of each other; or
(b) the specified group of persons in relation to one applicant or bidder has at least one member in common with the specified group of persons in relation to the other applicant or bidder.
Note Paragraph 2.3 (1) (b) means that 2 applicants or bidders are affiliated if they have an associate in common.
(2) If 2 applicants or bidders are affiliated, they are taken to be in a single specified group of persons for the purpose of the allocation limits.
2.4 Information relevant to considering whether applicants or bidders are affiliated
(1) When considering under this Determination whether 2 or more applicants or bidders are affiliated, the ACMA must have regard to:
(a) application forms lodged under paragraph 4.7 (1) (a); and
(b) statutory declarations and statements made under this Determination.
(2) The ACMA may have regard to any other information that it considers relevant.
Part 3 Confidentiality
Overview of Part 3This Part sets out the confidentiality obligations of applicants and bidders. Certain information about the allocation by auction or for a pre-determined price must not be shared until after the allocation process is completed.
3.1 Meaning of confidential information
In this Determination:
confidential information, in relation to an applicant or bidder, means:
(a) documents the applicant or bidder has given to the ACMA for the purpose of the allocation process; and
(b) information provided to the bidder under section 6.2 for the purpose of participating in the auction; and
(c) a bidding instruction made by the bidder in the auction; and
(d) a proposed bidding instruction by the applicant or bidder or a bidding instruction under consideration by the applicant or bidder; and
(e) the applicant’s or bidder’s bidding strategy; and
(f) the amount the applicant or bidder is willing to pay for:
(i) a lot or group of lots; or
(ii) a part or parts of the spectrum; and
(g) information that, if disclosed, could be reasonably expected to affect or be capable of affecting:
(i) bidding instructions made or proposed to be made by another applicant or bidder; or
(ii) another applicant’s or bidder’s bidding strategy; and
(h) information that, if disclosed, could be reasonably expected to affect or be capable of affecting the outcome of the allocation process.
3.2 Obligation to not disclose confidential information
(1) An applicant or bidder, or a related person who has knowledge of the applicant’s or bidder’s confidential information, must not, either directly or indirectly, disclose the applicant’s or bidder’s confidential information about the allocation process to any person.
(2) Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, disclosing information about the allocation process:
(a) for the purpose of obtaining advice relating to the allocation process from a person in the person’s professional capacity; or
(b) for the purpose of obtaining finance to purchase spectrum licences in the allocation process; or
(c) to the ACMA; or
(d) to another related person of the same applicant or bidder; or
(e) as authorised by this Determination or as otherwise required by law.
Note In some cases, the person to whom the information is disclosed may become a related person who is required to give a deed of confidentiality to the ACMA — see section 3.6.
(3) Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, disclosing information about the allocation process if:
(a) the information is already publicly available; and
(b) the information was not made available because of a breach of this section.
3.3 Duration of confidentiality obligations
Section 3.2 applies to an applicant or bidder and a related person of the applicant or bidder until:
(a) the applicant is notified under subsection 5.4 (5) about the applicant’s entitlement to be allocated a spectrum licence on payment of the balance of the pre-determined price; or
(b) the bidder is notified under section 7.1 that the bidder is not a winning bidder; or
(c) the applicant, as a withdrawn applicant, is notified under section 7.2 that the applicant’s confidentiality obligations are at an end; or
(d) the bidder, as a winning bidder, makes a statement under section 7.3.
3.4 Reporting breach of confidentiality
An applicant or bidder, or related person of an applicant or bidder, who discloses confidential information in breach of section 3.2 or who receives the confidential information of another applicant or bidder must report the disclosure or receipt to the ACMA in writing as soon as possible, but no later than 2 working days after becoming aware the disclosure or receipt has occurred.
3.5 Notice of breach of confidentiality
(1) If the ACMA has reason to believe that an applicant or bidder, or a related person of the applicant or bidder, may have disclosed confidential information in breach of section 3.2 or received confidential information as a result of a breach of section 3.2, the ACMA must:
(a) tell the applicant or bidder, giving details of the matter; and
(b) ask the applicant or bidder to make submissions about the matter; and
(c) state a deadline for the receipt of submissions that is no more than 5 working days after the date of the request.
(2) If the ACMA forms the belief before:
(a) notifying the applicant under subsection 5.4 (5) about the applicant’s entitlement to be allocated a spectrum licence; or
(b) the end of the auction period;
the ACMA is not required to tell the applicant or bidder before that time, but must tell the applicant or bidder as soon as practicable after that time.
3.6 Deed of confidentiality required from related persons
(1) A related person of an applicant or bidder who has knowledge of the applicant’s or bidder’s confidential information must give the ACMA a completed deed of confidentiality form if the person is:
(a) an employee of the applicant or bidder; or
(b) an employee of a related body corporate of the applicant or bidder that provides services to the applicant or bidder.
(2) If a person mentioned in paragraph (1) (a) or (b) receives knowledge of the applicant’s confidential information before the application deadline, the person must give the ACMA the completed deed of confidentiality form before the application deadline.
Note A deed of confidentiality form must be provided by the ACMA as part of the applicant information package on the ACMA’s website at http://www.acma.gov.au — see sections 4.4 and 4.5.
Part 4 Procedures before auction or allocation for a pre-determined price
Overview of Part 4This Part requires persons wishing to obtain a spectrum licence in the allocation process to apply for registration as a bidder in the auction before the application deadline advertised by the ACMA and to pay the application fee.Applying for registration as a bidder in the auction is also required for a person to be allocated a spectrum licence or licences at a pre-determined price without an auction.Applicants will then be required to provide a statutory declaration about their affiliation with any other applicant.This Part then requires applicants to lodge an eligibility nomination form, which will establish the number of eligibility points the applicant will have for the first round of the auction, and either make an eligibility payment or give a deed of financial security to the ACMA on behalf of the Commonwealth, or a combination of both. The value of the eligibility payment or financial security amount is based on the number of eligibility points nominated.
Division 1 Preliminary
4.1 Auction manager
The ACMA must, in writing, appoint a person to manage the auction.
4.2 Setting application fee
Before the ACMA publishes a notice inviting applications for the auction, it must, in writing, set the amount of the application fee.
4.3 Application fee not refundable
An application fee paid under this Determination is not refundable in any circumstances, including if an applicant withdraws from the auction before the eligibility deadline or is excluded from the auction.
Division 2 Advertising auction
4.4 Advertising of auction by ACMA
(1) The ACMA must publish on its website a notice that:
(a) describes the parts of the spectrum to be auctioned; and
(b) gives a brief description of the way the auction will be conducted; and
(c) states that the auction will be conducted in accordance with this Determination; and
(d) states that the ACMA may conclude that it can allocate a spectrum licence or licences for lots at a pre-determined price without having to conduct an auction; and
(e) invites persons to apply to the ACMA to take part in the auction; and
(f) states the date and time (the application deadline) before which:
(i) applications must be received by the ACMA; and
(ii) the application fee must be paid to the ACMA on behalf of the Commonwealth; and
(g) states the date and time (the eligibility deadline) before which:
(i) completed eligibility nomination forms must be received by the ACMA; and
(ii) eligibility payments must be made to the ACMA on behalf of the Commonwealth or deeds of financial security must be given to the ACMA on behalf of the Commonwealth; and
(h) states that applications may only be withdrawn before the eligibility deadline; and
(i) states that the applicant information package can be obtained from the ACMA’s website at the electronic address given in the notice.
(2) If a matter mentioned in the notice changes, the ACMA must publish another notice giving details of the change on its website.
(3) The ACMA may publish the information required by subsections (1) and (2) by additional methods, and may publish other information about the auction by any method it chooses.
4.5 Applicant information package
(1) The applicant information package must contain the following information:
(a) the Re-allocation Declaration;
(b) the Designation Notice;
(c) the Spectrum Licence Limits Direction;
(d) the Marketing Plan;
(e) this Determination;
(f) a guide to the auction;
(g) a statement that the ACMA may offer to allocate spectrum licences for lots for a pre-determined price;
(h) an application form approved by the ACMA, with instructions for completing and lodging the form;
(i) a deed of financial security form approved by the ACMA;
(j) information about providing a deed of financial security as an alternative to an eligibility payment;
(k) a deed of acknowledgement form approved by the ACMA, that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this Determination;
(l) a deed of confidentiality form approved by the ACMA, that includes a statement that an applicant (or related person of an applicant) agrees not to disclose confidential information before section 3.2 ceases to apply to the relevant applicant;
(m) statutory declaration forms for the purpose of this Determination;
(n) the amount of the application fee for the auction;
(o) the application deadline;
(p) the eligibility deadline;
(q) advice that the eligibility deadline is the last time for withdrawal from the auction;
(r) the physical address for lodging documents with the ACMA;
(s) the email address for lodging documents with the ACMA;
(t) the fax number for lodging documents with the ACMA.
(2) The applicant information package may also contain other information about the allocation process.
(3) The applicant information package must be published on the ACMA’s website.
(4) If the ACMA makes any change to the contents of the applicant information package after it is published, the ACMA must publish a notice giving details of the change on its website.
4.6 Lot ratings and starting prices
(1) The ACMA must set the following amounts:
(a) the lot rating for each lot in the auction;
(b) the dollar value of each initial eligibility point for the auction;
(c) the starting price for the lots for the first round.
(2) After setting the amounts mentioned in paragraphs (1) (a) and (b), the ACMA must approve an eligibility nomination form.
(3) The ACMA must ensure that the eligibility nomination form includes a guide to calculating initial eligibility points.
(4) After approving the eligibility nomination form, the ACMA must publish the amounts set under subsection (1) and the eligibility nomination form on its website.
Division 3 Application to participate in auction
4.7 Lodging application
(1) A person may apply to become registered as a bidder in the auction by:
(a) giving the ACMA a completed application form; and
(b) giving the ACMA a completed deed of acknowledgement form; and
(c) giving the ACMA a completed deed of confidentiality form; and
(d) paying the application fee;
before the application deadline.
Note For information on how an application fee must be paid, see section 1.7.
(2) An applicant may give the ACMA an updated document for paragraphs (1) (a) to (c) at any time until the application deadline, but not after the deadline.
(3) If a document for paragraphs (1) (a) to (c) is given to the ACMA by email or fax before the application deadline, the original document must be received by the ACMA no later than 3 working days after the application deadline (or, if the ACMA agrees to a later time, the agreed time) for the application to be valid.
4.8 Applicants to notify ACMA if application information incorrect
If an applicant knows that any of the information in the application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.
4.9 Applicant to provide statutory declaration
(1) After the application deadline, the ACMA must:
(a) give each applicant details about the identity of all other applicants, and the persons identified as the associates of other applicants; and
(b) ask each applicant to make a statutory declaration stating whether the applicant is affiliated with another applicant and, if so, identifying the other applicant and giving details of the affiliation.
(2) The ACMA must state a deadline, at least 5 working days after the date of the request, before which the statutory declaration must be received by the ACMA.
4.10 Failure to provide statutory declaration
If an applicant does not give the ACMA a statutory declaration in accordance with section 4.9, the applicant is taken to have withdrawn the application.
4.11 Procedure if ACMA satisfied applicants affiliated
(1) If the ACMA is satisfied that 2 or more applicants are affiliated, the ACMA must, in writing:
(a) notify the applicants and tell them the basis on which the ACMA is satisfied the applicants are affiliated; and
(b) notify the affiliated applicants that to participate in the auction they must:
(i) withdraw the applications of all the affiliated applicants and submit a new application under section 4.12; or
(ii) withdraw the applications of all but one of the affiliated applicants.
(2) Within 8 working days of the ACMA notifying the affiliated applicants under subsection (1), the applicants must notify the ACMA, in writing, which option under paragraph (1) (b) the applicants have decided to take.
(3) If the affiliated applicants do not notify the ACMA within 8 working days, the applicants are taken to have withdrawn the applications.
(4) If some of the affiliated applicants withdraw their applications, but more than one affiliated applicant does not, the remaining affiliated applicants are taken to have withdrawn the applications.
(5) The ACMA must tell the applicants in writing if they are taken to have withdrawn under subsection (3) or (4).
4.12 Requirements for new application
(1) If a group of affiliated applicants notified by the ACMA under subsection 4.11 (1) decide to submit a new application, the new applicant must be a body corporate whose only members are one or more of those affiliated applicants.
(2) The new applicant must, within 8 working days of the ACMA notifying the affiliated applicants under subsection 4.11 (1):
(a) give the ACMA a completed application form; and
(b) pay the application fee.
Note For information on how an application fee must be paid, see section 1.7.
(3) If the ACMA receives a completed application form and application fee under subsection (2), the ACMA must give each applicant (including the new applicant) updated details about the identity of all other applicants and the persons identified as the associates of other applicants.
(4) The updated information does not need to include those applicants who have already withdrawn.
(5) The new applicant must, no later than 3 working days after the ACMA gives the new applicant the updated information (or, if the ACMA agrees to a later time, the agreed time), give the ACMA:
(a) a completed deed of acknowledgement form; and
(b) a completed deed of confidentiality form; and
(c) a statutory declaration that the new applicant is not affiliated with any other applicant in the updated information.
(6) If a document for paragraph (2) (a), (5) (a) or (5) (b) is given to the ACMA by email or fax before the applicable deadline, the original document must be received by the ACMA no later than 3 working days after the deadline under subsection (5) (or, if the ACMA agrees to a later time, the agreed time) for the application to be valid.
(7) The ACMA must not accept a new application under this section unless it is satisfied that the new applicant is not affiliated with any applicant who has not withdrawn, including another new applicant.
Division 4 Setting other elements of the auction
4.13 Increments
After the application deadline, the ACMA must set the following 2 amounts:
(a) the increment of price per lot rating;
(b) the increment of percentage of high bid.
Note The auction manager may vary the amounts set under section 4.13 — see clause 8 in Schedule 1.
4.14 Stages of auction, eligibility percentage and waivers
After the application deadline, the auction manager must:
(a) fix the number of stages for the auction; and
(b) fix a percentage to be applied in calculating the activity target during each stage of the auction (the eligibility percentage); and
(c) fix the number of waivers for each bidder, being the same number for all bidders; and
(d) tell all bidders of these matters.
Division 5 Eligibility nomination and financial security
4.15 Lodging eligibility nomination form
(1) An applicant must nominate its initial eligibility points by giving the ACMA a completed eligibility nomination form before the eligibility deadline.
(2) The maximum number of initial eligibility points that an applicant may nominate is the total of the lot ratings of all lots to be auctioned.
Note A person’s ability to use eligibility points in the auction is restricted by the allocation limits in section 2.1.
(3) An applicant may change the number of initial eligibility points nominated by giving the ACMA a new eligibility nomination form at any time until the eligibility deadline, but not after the deadline.
(4) If an eligibility nomination form is given to the ACMA by email or fax before the eligibility deadline, the original form must be received by the ACMA no later than 3 working days after the eligibility deadline (or, if the ACMA agrees to a later time, the agreed time) for the nomination to be taken to have been made.
(5) If an applicant does not nominate its initial eligibility points by the eligibility deadline, the applicant is taken to have withdrawn the application.
4.16 Eligibility payment or deed of financial security required for initial eligibility points
(1) An applicant must, before the eligibility deadline, secure initial eligibility points by:
(a) making an eligibility payment of an amount to the ACMA on behalf of the Commonwealth; or
(b) giving the ACMA on behalf of the Commonwealth a deed of financial security, which has been completed in the approved form and executed, for an amount; or
(c) making an eligibility payment of part of an amount and giving a deed of financial security for the remainder.
Note For information on how an eligibility payment is to be paid, see section 1.7.
(2) The amount required to secure the initial eligibility points nominated by the applicant is worked out by multiplying the nominated number of points by the dollar value of initial eligibility points set by the ACMA under paragraph 4.6 (1) (b).
(3) If an applicant makes an eligibility payment or gives a deed of financial security (or both) for an amount less than the amount worked out under subsection (2), the number of initial eligibility points secured by the applicant is worked out by dividing the amount paid or secured by deed by the dollar value of initial eligibility points, and rounding up to the nearest whole point.
(4) A deed of financial security must be executed by:
(a) an authorised deposit-taking institution within the meaning of the Banking Act 1959; or
(b) a person authorised to carry on business in Australia as an insurer under the Insurance Act 1973; or
(c) a Lloyd’s underwriter authorised to carry on insurance business under Part VII of the Insurance Act 1973.
(5) If a deed of financial security is executed by a person acting under a power of attorney for a body corporate, the applicant must give the ACMA a copy of the power of attorney with the deed.
(6) If a deed of financial security is given to the ACMA by email or fax before the eligibility deadline, the original deed must be received by the ACMA no later than 3 working days after the eligibility deadline (or, if the ACMA agrees to a later time, the agreed time) for the deed to be taken to have been given to the ACMA.
(7) An applicant is taken to have withdrawn the application if:
(a) the applicant fails to make an eligibility payment or give a deed of financial security before the eligibility deadline; or
(b) the ACMA is not satisfied that the person executing a deed of financial security is a person mentioned in subsection (4).
Division 6 Withdrawal
4.17 Withdrawal of applicant
(1) An applicant may withdraw from the auction before the eligibility deadline, by giving the ACMA notice in writing.
(2) If an applicant who withdraws under subsection (1) or who is taken to have withdrawn under another section of this Determination has made an eligibility payment under section 4.16, the ACMA must refund the payment.
(3) An applicant may not withdraw after the eligibility deadline.
(4) An applicant must not be re-admitted to the auction after withdrawing.
Part 5 Allocation for a pre‑determined price
Overview of Part 5This Part outlines the pre-determined price procedures for allocation of spectrum licences without an auction.This Part also sets out what happens if an offer for a spectrum licence at a pre-determined price is not accepted, the allocation process is terminated or full payment is not made for a spectrum licence.An eligibility payment made by an applicant is deducted from the total of the pre-determined prices to be paid for the spectrum licences accepted by the applicant.A spectrum licence is issued once the full balance of the pre-determined price for all spectrum licences has been paid.
5.1 Allocation for a pre‑determined price without an auction
(1) If, before the auction manager sets the start date and time for the first and second rounds of the auction under section 6.7, the ACMA considers that it may be able to allocate spectrum licences for lots without having to conduct an auction to identify the highest value user for the spectrum represented by those lots, the ACMA may offer to allocate spectrum licences for the lots for a pre‑determined price, as set out in this Part.
(2) The offer of a spectrum licence will be conditional on payment of the pre‑determined price.
5.2 ACMA must have regard to applicants’ requirements
In identifying lots for subsection 5.1 (1) and in deciding for subsection 5.4 (1) whether it may be able to allocate spectrum licences without an auction, the ACMA must only have regard to:
(a) the applicants’ indications, in their eligibility nomination forms, of the lots they require; and
(b) such other information about the lots they require that applicants may provide to the ACMA.
5.3 The pre‑determined price
(1) The pre‑determined price for a spectrum licence is worked out as follows:
(a) the ACMA will identify each lot to be included in the spectrum licence;
(b) the ACMA will add up the starting prices for each lot.
Note The starting price is set by the ACMA under section 4.6.
(2) The balance of the pre‑determined price for a spectrum licence is the pre‑determined price less the amount of any eligibility payment made by the applicant.
5.4 Offer of spectrum licence
(1) The ACMA will offer each applicant a spectrum licence or licences for the lots identified under paragraph 5.3 (1) (a).
(2) The ACMA will send each applicant, by registered mail:
(a) a draft of the spectrum licence or licences; and
(b) a notice stating:
(i) that the applicant is offered a spectrum licence or licences for the lots identified under paragraph 5.3 (1) (a); and
(ii) the amount of the pre‑determined price payable for each spectrum licence and the total of the pre‑determined prices; and
(iii) the amount of any eligibility payment made by the applicant and held by the ACMA; and
(iv) the full balance of the pre‑determined price payable for all spectrum licences; and
(v) that the offer is conditional on each other applicant accepting the spectrum licence or licences offered to it.
(3) An applicant who wishes to accept the ACMA’s offer must do so by notifying the ACMA in writing within 7 working days of receiving the offer and agreeing, in writing, to pay the full balance of the pre‑determined price for all spectrum licences.
(4) If every applicant accepts the spectrum licence or licences offered to it, each applicant is entitled to be issued the spectrum licence or licences offered to it on payment of the full balance of the pre‑determined price for all spectrum licences in accordance with section 1.7.
Note If an applicant does not accept a spectrum licence offered to it, section 5.6 applies.
(5) The ACMA must, in writing, notify each applicant about each applicant’s entitlement under subsection (4).
Note For the issue of spectrum licences, see section 62 of the Act.
5.5 Payment of full balance of pre‑determined price
(1) The ACMA must notify each applicant by registered mail of the full balance of the pre-determined price payable by the applicant for all spectrum licences that the applicant is entitled to.
(2) The full balance of the pre‑determined price for all spectrum licences is payable:
(a) within 10 working days of the date of the notice sent by the ACMA to the applicant; and
(b) in accordance with section 1.7.
5.6 Allocation if some offers refused
If an applicant does not accept, in accordance with subsection 5.4 (3), a spectrum licence that has been offered to it, the ACMA may:
(a) withdraw offers for spectrum licences for all lots covered by the licences offered and terminate the allocation process under this Part; or
(b) allocate all those lots by auction or otherwise under this Determination; or
(c) allocate spectrum licences under subsection 5.4 (4) to the applicants who have accepted the offered licences and, for lots covered by licences that were not accepted:
(i) allocate those lots by auction or otherwise, in accordance with this Determination; or
(ii) withdraw those lots from allocation and allocate the spectrum covered by those lots at a later date.
5.7 Refunds if allocation process terminated
If the ACMA terminates the allocation process under paragraph 5.6 (a), the eligibility payments of all applicants are refundable.
5.8 Default
If an applicant does not pay the full balance of the pre‑determined price for all spectrum licences in accordance with subsection 5.5 (2):
(a) the applicant ceases to be entitled to be allocated the spectrum licence or licences; and
(b) the allocation of spectrum licences under this Part to other applicants is not affected; and
(c) the lots included in the spectrum licence or licences are taken to be unallocated spectrum under section 8.1.
Note The ACMA, on behalf of the Commonwealth, may retain an eligibility payment made by an applicant, or enforce a deed of financial security given by an applicant, in accordance with section 8.6.
5.9 Publication of results
The ACMA must announce or publish the following information about the allocation process after the ACMA has notified applicants about their entitlements under subsection 5.4 (5):
(a) the names of the persons to whom spectrum licences are to be issued;
(b) the spectrum allocated to each person;
(c) the pre-determined price for each spectrum licence to be issued to each person;
(d) the total sum paid, or to be paid, by each person (being the total of the pre-determined prices for the spectrum licences to be issued to the person).
Part 6 Auction procedures
Overview of Part 6If the steps for applications are validly completed, this Part requires the ACMA to register a person as a bidder in the auction.This Part then outlines the procedures for the auction. The detailed rules for the conduct of the auction are set out in Schedule 1.This Part also prohibits affiliation between bidders during the auction, and requires bidders to report to the ACMA if they believe an affiliation has occurred.
Division 1 Registration of bidders
6.1 Register of bidders
(1) The ACMA must maintain a register of bidders in the auction in electronic form.
(2) For each bidder, the register must contain the following:
(a) the bidder’s name;
(b) the bidder’s postal address;
(c) the bidder’s email address;
(d) the bidder’s telephone number;
(e) the name, position, postal address, email address and telephone number of a contact person for the bidder;
(f) the bidder’s initial eligibility points, reduced (if required) as a result of the allocation of spectrum licences under Part 5;
(g) the bidder’s ACN, ARBN or ABN;
(h) the names of the bidder’s associates and the nature of their association with the bidder.
(3) The register may also contain any other information that the ACMA considers necessary or convenient for the running of the auction.
(4) The ACMA must make changes to the register as soon as practicable after:
(a) a bidder tells the ACMA of a change in the bidder’s name or contact information, including a change of information for the bidder’s contact person; or
(b) the ACMA becomes aware that any of the information on the register is not correct.
6.2 Registration process
(1) The ACMA must register a person as a bidder in the auction only if:
(a) the eligibility deadline has passed; and
(b) the person has:
(i) made a valid application under section 4.7 or 4.12; and
(ii) given the ACMA a completed eligibility nomination form under section 4.15; and
(iii) made an eligibility payment or given a deed of financial security under section 4.16; and
(c) if a deed of financial security is given—the ACMA is satisfied that the person who executed the deed is a person mentioned in subsection 4.16 (4).
(2) After the eligibility deadline, the ACMA must, in writing, tell a bidder that the bidder has been registered and may participate in the auction, and give the bidder the following:
(a) a copy of the information recorded on the register for the bidder;
(b) the ACMA’s email address and telephone and fax numbers available for use by bidders;
(c) information about accessing and using the auction system;
(d) any items required for access;
(e) information about how to bid by alternative means if the bidder is unable to submit a bid using the auction system.
Note Information provided to a bidder under this section for the purpose of participating in the auction is defined as confidential information under section 3.1.
6.3 Bidders to notify ACMA if register incorrect
If a bidder knows that any of the information about the bidder or the bidder’s associates on the register is incorrect, the bidder must immediately give the ACMA the correct information.
6.4 Preparation for bidding
The ACMA must give each bidder an opportunity to try out the auction system before the auction commences.
6.5 Security of auction
(1) A bidder must ensure that any items provided to the bidder for the purpose of accessing the auction system are kept secure during the auction period.
(2) The bidder must notify the ACMA immediately if any item provided to the bidder for the purpose of accessing the auction system is lost or stolen during the auction period.
Division 2 Setting elements of the auction
6.6 Auction procedures
(1) The auction consists of a number of stages, each of which is made up of a number of rounds.
(2) The first round of the auction starts on the date and time for that round set by the auction manager under subsection 6.7 (1).
(3) The rounds of the auction are to be conducted in accordance with the rules in Part 1 of Schedule 1.
6.7 First and second rounds
(1) After the eligibility deadline, the auction manager must set the start date and time of the first and second rounds of the auction.
(2) The auction manager must notify bidders of the start date and time of the first and second rounds at least 10 working days before the day of the first round.
Division 3 Procedures for bidding instructions not using the auction system and for exceptional circumstances
6.8 Auction manager’s discretion to accept bidding instructions
(1) The auction manager may permit a bidder to submit a bidding instruction during the bidding period for a round by a method other than the auction system if the auction manager is satisfied that the bidder is not able to submit a bidding instruction for the round using the auction system.
(2) The auction manager may permit a bidder to submit a bidding instruction for a round after the end time of the bidding period if the auction manager is satisfied that the bidder could not submit the bidding instruction during the bidding period because of technical or communication problems.
(3) A bidding instruction permitted by the auction manager under subsection (2) is taken to have been validly made during the bidding period.
(4) The auction manager must not permit a bidder to submit a bidding instruction under subsection (2) after the results for the round have been provided to bidders.
6.9 Action that auction manager may take in exceptional circumstances
(1) If the auction manager is satisfied that the auction is affected by exceptional circumstances, the auction manager may:
(a) make corrections to:
(i) the results of the current round of the auction; and
(ii) information received by a bidder during the results period for the round; or
(b) stop the current round of the auction and restart the round; or
(c) cancel the results of one or more auction rounds and restart the auction from the point before those rounds; or
(d) restart the auction from the first round; or
(e) stop the auction.
(2) For this section, exceptional circumstances include:
(a) a significant technical difficulty with the auction system; or
(b) a breach of the confidentiality obligations in section 3.2.
(3) Subsection (2) does not limit what might constitute exceptional circumstances.
Division 4 Affiliations during the auction
6.10 Affiliation during auction period not permitted
A bidder must not be affiliated with another bidder during the auction period.
Note If the ACMA is satisfied that a breach of this provision has occurred, the ACMA may take action under section 8.6.
6.11 Requirement to report affiliation
If, at any time during the auction period, a bidder believes that it may be an affiliate of another bidder, the bidder must immediately tell the ACMA in writing the identity of the other bidder and give details of the affiliation.
6.12 Auction continues despite possible affiliation
If the ACMA becomes aware during the auction period that 2 or more bidders may be affiliated, the auction is to continue and the bidders may continue to participate in the auction.
6.13 ACMA consideration of affiliation
(1) If the ACMA has reason to believe that 2 or more bidders are affiliated during the auction period, the ACMA must notify the bidders in writing and tell them the basis on which the ACMA believes that the bidders are affiliated.
(2) If a bidder gave the ACMA information under section 6.11 and the ACMA does not consider that the bidder is affiliated with another bidder, the ACMA must tell both bidders in writing that the ACMA does not consider them to be affiliated.
Part 7 Procedures after auction
Overview of Part 7After the auction procedures in Part 6 and Schedule 1 are completed, this Part requires the ACMA to notify unsuccessful bidders and withdrawn applicants that their confidentiality obligations have ended, and provide refunds of eligibility payments, less any bid withdrawal penalties.This Part also requires winning bidders to make a statement about any affiliation with another winning bidder. If 2 or more winning bidders are affiliated, the spectrum allocated to those bidders must be reduced to comply with the allocation limits.An eligibility payment made by a winning bidder is deducted from the price to be paid for the spectrum lots (including any bid withdrawal penalties) won by the bidder in the auction. A spectrum licence is issued once the balance of the winning price has been paid.
Division 1 Confirmation of auction results
7.1 Notice and refunds to unsuccessful bidders
(1) As soon as practicable after the end of the auction period, the ACMA must notify each bidder that is not a winning bidder that:
(a) the bidder was unsuccessful in the auction; and
(b) the bidder’s confidentiality obligations under section 3.2 have ended.
(2) If the unsuccessful bidder made an eligibility payment, the ACMA must refund the payment, less the amount of any bid withdrawal penalties imposed on the bidder under clause 18 in Schedule 1, no later than 6 months after sending the notice under subsection (1) unless the ACMA has made a decision to retain the eligibility payment under section 8.6.
Note Section 8.6 enables the ACMA to retain an eligibility payment if it is satisfied certain breaches of this Determination have occurred.
7.2 Notice to withdrawn applicants
As soon as practicable after the end of the auction period, the ACMA must notify each withdrawn applicant that the applicant’s confidentiality obligations under section 3.2 have ended.
Note Eligibility payments made by withdrawn applicants are refundable under section 4.17.
7.3 Winning bidder to make statement about affiliations
(1) As soon as practicable after the end of the auction period, the ACMA must:
(a) give each winning bidder details about the identity of all other winning bidders; and
(b) ask the bidder to make a statement whether the bidder is an affiliate of another winning bidder and, if so, identifying the other bidder and giving details of the affiliation.
(2) The ACMA must state a deadline, at least 8 working days after the date of the request, before which the statement must be received by the ACMA.
(3) A winning bidder must give the ACMA the statement by the deadline.
Note 1 Giving false or misleading information is a serious offence under section 137.1 of the Criminal Code.
Note 2 Section 136.1 of the Criminal Code also makes it an offence to make a false or misleading statement in connection with an application for a spectrum licence.
7.4 Notification that winning bidders are affiliated
If the ACMA is satisfied that 2 or more winning bidders have become affiliated after the end of the auction period (but were not affiliated during the auction period), the ACMA must notify the bidders in writing and tell them the basis on which the ACMA is satisfied the bidders are affiliated.
7.5 Consequences of affiliation
(1) If the ACMA notifies 2 or more winning bidders under section 7.4 that it is satisfied the bidders are affiliated, the ACMA must not issue spectrum licences to the bidders that would exceed the allocation limits.
(2) If the issue of spectrum licences to the affiliated bidders for all the lots the bidders won at auction would exceed the allocation limits, the bidders may give a direction to the ACMA specifying how spectrum is to be allocated between the bidders up to the allocation limits.
(3) The direction must be given jointly by the bidders and must be given to the ACMA within 5 working days after the bidders received notification under section 7.4.
(4) If the ACMA does not receive a direction within 5 working days, the ACMA may, for any part of the spectrum where the lots won by the bidders exceed the allocation limits, choose at its discretion how to allocate spectrum to each bidder up to the allocation limits.
(5) A frequency range can be assigned to a bidder under this section from any of the frequency ranges of the lots won at auction by any of the affiliated bidders.
(6) Spectrum in excess of the allocation limits that is not allocated under subsection (2) or (4) is taken to be unallocated spectrum under section 8.1.
(7) A winning bidder must pay the full balance of the winning price for all lots won by the bidder at auction, despite receiving a smaller allocation as a result of this section.
Division 2 Payment and issue of spectrum licences
7.6 Balance of winning price
(1) For a winning bidder, the balance of the winning price is worked out as follows:
(a) the ACMA will add up the highest final bids made by the winning bidder for the lots won by the bidder at auction;
(b) the ACMA will add up the amount of the bid withdrawal penalties imposed on the bidder under clause 18 in Schedule 1;
(c) the ACMA will add the total of the highest final bids and the total of the bid withdrawal penalties;
(d) the ACMA will deduct the applicant’s eligibility payment from this total.
(2) The amount remaining is the balance of the winning price.
7.7 Sufficient eligibility payment—issue of spectrum licence without further payment
(1) If the balance of the winning price for a winning bidder is an amount less than zero:
(a) the ACMA must refund the eligibility payment in excess of:
(i) the total of the highest final bids for the lots won by the bidder at auction; and
(ii) the total of the bid withdrawal penalties imposed on the bidder under clause 18 in Schedule 1; and
(b) the bidder is entitled to be issued a spectrum licence for each part of the spectrum allocated to the bidder without further payment.
(2) If the balance of the winning price for a winning bidder is zero, the bidder is entitled to be issued a spectrum licence for each part of the spectrum allocated to the bidder without further payment.
7.8 Payment of balance of winning price
(1) If the balance of the winning price for a winning bidder is an amount greater than zero, the ACMA must notify the bidder by registered mail of the balance.
(2) The balance of the winning price must be paid by the winning bidder to the ACMA on behalf of the Commonwealth no later than 20 working days after the date of the notice.
Note For information on how the balance of the winning price must be paid, see section 1.7.
(3) If the ACMA becomes aware that a notice under subsection (1) contains a material error, the ACMA must give the winning bidder a revised notice by registered mail.
(4) If the ACMA gives a winning bidder a revised notice, the balance of the winning price must be paid no later than:
(a) if the revised notice is given within 20 working days after the date of the original notice—no later than 30 working days after the date of the original notice; or
(b) if the revised notice is given more than 20 working days after the date of the original notice—no later than 10 working days after the date of the revised notice.
7.9 Issue of spectrum licence after payment of balance of winning price
If a winning bidder pays the balance of the winning price in accordance with section 7.8, the bidder is entitled to be issued a spectrum licence for each part of the spectrum allocated to the bidder.
7.10 Publication of auction results
The ACMA must announce or publish the following information about the auction after the end of the auction period:
(a) the names of winning bidders;
(b) the spectrum allocated to each winning bidder;
(c) the highest final bid for each lot won by each winning bidder;
(d) the bid withdrawal penalties for each lot imposed on each winning bidder under clause 18 in Schedule 1;
(e) the total sum paid, or to be paid, by each winning bidder (being the total of the highest final bids for the lots won by the bidder and the total of the bid withdrawal penalties imposed on the bidder).
Part 8 Miscellaneous
Overview of Part 8This Part deals with a range of matters, including information-gathering powers and the enforcement of the procedures in this Determination by the Federal Court.
8.1 Unallocated spectrum
Parts of the spectrum that are offered at the auction or for a pre-determined price but not allocated may be later offered for allocation by a procedure to be determined by the ACMA.
Note The ACMA may make determinations under section 60 of the Act about allocations by auction or by other procedures.
8.2 Bidders must not misuse auction system
(1) A bidder must only access and use the auction system in accordance with the information about access and use provided under section 6.2.
(2) A bidder must not attempt to interfere with, disrupt or damage the auction system.
(3) A bidder must not attempt to use the auction system to breach a law of the Commonwealth.
8.3 ACMA may obtain information from applicants and bidders
(1) If the ACMA has reason to believe that an applicant or bidder has information or documents that are relevant to the performance of any of the ACMA’s functions or exercise of its powers under this Determination, the ACMA may, by written notice, require the applicant or bidder:
(a) to give to the ACMA, within the period and in the manner and form specified in the notice, any such information; or
(b) to produce to the ACMA, within the period and in the manner specified in the notice, any such documents.
Note If a requirement in a notice given under this subsection is breached, the ACMA may take action under section 8.6.
(2) The ACMA may vary a notice given under subsection (1).
8.4 Use of information and documents by ACMA
(1) The ACMA may use information or documents it obtains in the performance of its functions under this Determination:
(a) for the purposes of this Determination, including disclosing or publishing information or documents as provided for in this Determination; and
(b) in relation to a spectrum licence issued as a result of the allocation process.
(2) The ACMA may retain possession of a document or other item given to the ACMA for the purposes of this Determination for as long as necessary for the performance of the ACMA’s functions and exercise of its powers under this Determination or the Act.
(3) The ACMA may disclose information or documents in accordance with Part 7A of the Australian Communications and Media Authority Act 2005 or as otherwise authorised by law.
8.5 ACMA to provide information to ACCC on request
(1) The ACCC may make a request to the ACMA for information in relation to the allocation process or in relation to an applicant or bidder.
(2) The ACMA must provide the requested information to the ACCC if the ACMA has the information.
(3) Without limiting subsection (1), information that the ACCC may request includes the following:
(a) completed application forms;
(b) completed eligibility nomination forms;
(c) completed deed of confidentiality forms;
(d) information about an applicant’s associates and affiliations;
(e) information about any breaches of confidentiality obligations;
(f) information about the outcomes of the procedures in Part 5;
(g) information about bidding during the auction;
(h) information about the outcomes of the procedures in Part 7.
8.6 Retention of eligibility payment or enforcement of deed for breach of procedures
(1) The ACMA on behalf of the Commonwealth may retain an eligibility payment made by an applicant or bidder, or enforce a deed of financial security given by an applicant or bidder, if:
(a) the ACMA is satisfied that:
(i) the applicant or bidder, or a related person of the applicant or bidder, breached a provision of this Determination; and
(ii) the breach affected, or may have affected, the outcome of the allocation process; or
(b) the applicant failed to pay the full balance of the pre-determined price for all spectrum licences as required under subsection 5.5 (2); or
(c) the ACMA is satisfied that the bidder breached section 6.10; or
(d) the bidder is a winning bidder who failed to give the statement required under section 7.3; or
(e) the bidder is a winning bidder who failed to pay the balance of the winning price as required under section 7.8; or
(f) the bidder failed to pay the amount of all bid withdrawal penalties as required under clause 18 in Schedule 1; or
(g) the ACMA is satisfied that the applicant or bidder, or a related person of the applicant or bidder, breached the confidentiality obligations under section 3.2 after the end of the auction period (but before the confidentiality obligations came to an end); or
(h) the applicant or bidder failed to comply with a requirement in a notice given under subsection 8.3 (1).
(2) The ACMA must notify the applicant or bidder, in writing, of a decision under subsection (1) and the nature of the breach or failure before the later of:
(a) 6 months after:
(i) the notification under subsection 5.4 (5); or
(ii) the end of the auction period; and
(b) 6 months after the day on which the breach or failure mentioned in subsection (1) occurred.
(3) An eligibility payment retained under this section, or an amount obtained through enforcement of a deed of financial security under this section, is forfeited to the Commonwealth unless the Federal Court orders the return of the amount under section 8.9.
8.7 Effect of retention on allocation to applicants for pre-determined price
If the ACMA makes a decision under subsection 8.6 (1) in relation to an applicant notified under subsection 5.4 (5):
(a) despite subsection 5.4 (4), the ACMA must not issue a spectrum licence to the applicant; and
(b) the spectrum is taken to be unallocated spectrum under section 8.1.
8.8 Effect of retention on winning bidders
If the ACMA makes a decision under subsection 8.6 (1) in relation to a winning bidder:
(a) despite sections 7.7 and 7.9, the ACMA must not issue a spectrum licence to the bidder; and
(b) the spectrum won by the bidder at auction is taken to be unallocated spectrum under section 8.1.
8.9 Application to Federal Court for return of retained amount
(1) An applicant or bidder who has been notified by the ACMA under subsection 8.6 (2) may, within 1 year of receiving the notice, apply to the Federal Court for return of all or part of an eligibility payment or an amount secured by a deed of financial security.
(2) On application, the Federal Court may:
(a) if the Court is not satisfied that the applicant or bidder committed the breach or failure identified in the notice given by the ACMA—order the return of all of the amount retained by the ACMA; or
(b) if the Court is satisfied that the applicant or bidder committed the breach or failure, but considers that it would be disproportionate for the full amount to be retained—order the return of part of the amount retained by the ACMA.
(3) This section does not enable the Federal Court to order that a spectrum licence be issued to an applicant or bidder.
(4) This section does not remove any existing jurisdiction of a court.
8.10 Liability of ACMA
Neither the ACMA, the auction manager nor the Commonwealth is liable to pay damages or costs arising from an act or omission of any person in relation to the allocation procedures set out in this Determination.
8.11 Other rights not affected
This Determination does not limit any other right of action or remedy which the ACMA or the Commonwealth has against a person.
8.12 Auction manager may delegate functions and powers
The auction manager may delegate any of the auction manager’s functions and powers under this Determination to another person in writing.
(1) Each round of the auction is made up of the following periods and activities:
(a) the bidding period — during which bidders make their bidding instructions;
(b) the results period — during which the auction manager works out the high bid on each lot offered, using the auction system, and then provides the results for the round to bidders, using the auction system.
Note For paragraph 1 (1) (a), in the case of withdrawing bids, withdrawal may be subject to withdrawal penalties — see clause 18.
(2) In this clause:
results, for a round, means the following results and information:
(a) the amount of the high bid on each lot for the round;
(b) if the bidder with the high bid on a lot for the round is the same bidder with the high bid on that lot from the previous round, an indicator to that effect;
(c) the number of bids made on a lot for the round;
(d) the minimum bid on each lot for the next round;
(e) a list of specified bids that may be made on each lot for the next round; and
(f) any other information necessary for the smooth running of the auction.
(3) During the results period for a round, a bidder will receive, using the auction system, the following information:
(a) the bidding instructions made by the bidder during the bidding period for the round;
(b) the amount of any high bid held on a lot by the bidder for the round;
(c) the total amount of high bids held by the bidder for the round;
(d) the bid withdrawal penalty for each lot that a bidder is liable for under clause 18 for the round;
(e) the bidder’s eligibility points at the beginning of the next round;
(f) the number of waivers remaining for the bidder at the beginning of the next round; and
(g) any other details necessary for the smooth running of the auction.
2 Schedule for rounds of the auction
(1) Rounds of the auction must start and end between 9.00 am and 5.00 pm on working days.
(2) The scheduling of rounds between those times is at the auction manager’s discretion.
(3) There is no minimum or maximum length for the bidding period or the results period of a round, and no minimum or maximum length for the interval between rounds.
(4) There is no upper or lower limit on the number of rounds per day.
(5) The auction system will indicate the anticipated schedule of rounds for a given day at least 1 hour before the start time of the first round of the day. However, the auction manager may, at any time, modify the schedule of rounds. If this occurs, the auction manager must inform all bidders of the change as soon as practicable.
(6) Before the start time of each round, the auction manager must indicate to each bidder using the auction system:
(a) the start time of the bidding period; and
(b) the end time of the bidding period; and
(c) the start time of the results period; and
(d) the end time of the results period.
3 Recess days
(1) The auction manager may declare a day to be a recess day (whether or not the day is a working day).
(2) Before declaring a recess day, the auction manager must give bidders an opportunity to comment on the proposed declaration and take into account any comments received.
(3) If the auction manager decides to declare a day to be a recess day, the auction manager must tell all bidders of this.
4 Movement to next stage of the auction
(1) The auction manager may move the auction to the next stage.
(2) Before moving the auction to the next stage, the auction manager must:
(a) tell bidders of the proposal; and
(b) ask bidders for their comments on the proposal within the time (being not less that 1 hour) set by the auction manager; and
(c) take into account any comments received on the proposal.
(3) If the auction manager decides to move to the next stage, he or she must tell all bidders of this and specify the round when the change will take effect.
Part 2 Bidding in the auction
5 Definitions
(1) In this Part:
activity target, for a bidder during a round in a stage, means the figure obtained by multiplying the amount of the bidder’s eligibility points for that round by the eligibility percentage fixed by the auction manager for that stage, rounded down to an integer.
(2) A bidder is active on a lot in a round if:
(a) for a round to which the starting price applies — the bidder makes a bid that equals or exceeds the starting price; and
(b) for any other round:
(i) the bidder makes a bid that equals or exceeds the minimum bid on the lot worked out in accordance with clause 6; or
(ii) the bidder holds the high bid on the lot from the previous round and does not withdraw that high bid in the current round.
6 Starting price and minimum bid
(1) A bid on a lot below the amount of the starting price for that lot will not be accepted.
Note For starting prices, see section 4.6 and clause 7.
(2) After a bid at or above the starting price has been made on a lot in a round, a bid in a later round on the lot that is below the minimum bid for that lot will not be accepted.
(3) The minimum bid for a lot is the sum of the high bid on that lot from the previous round, as provided in the results and information for the round, and the higher of:
(a) the increment of price per lot rating set under section 4.13, multiplied by the lot rating for the lot; and
(b) the increment of percentage of high bid set under section 4.13, multiplied by that high bid;
rounded up to the next thousand.
(4) However, if a high bid on a lot is withdrawn, the minimum bid on that lot is worked out in accordance with clause 16.
(5) A bidder who holds the high bid on a lot from a previous round is not required by subclause (2) to raise its own high bid, but may do so.
7 Changing starting prices
(1) Despite clause 6, the Chair may, at any time, vary the amount of the starting price on a lot.
(2) Before doing this, the Chair must:
(a) tell bidders of the proposed change; and
(b) ask bidders for their comments on the proposal within the time (being not less than 1 day) set by the auction manager; and
(c) take into account any comments received on the proposal.
(3) The auction manager must notify all bidders of the change before the round when the change takes effect.
8 Changing minimum bids
(1) Despite clause 6, the auction manager may, at any time during the auction, change the amounts fixed under paragraphs 4.13 (a) and (b) to vary the minimum bid on a lot.
(2) Before doing this, the auction manager must:
(a) tell bidders of the proposed change; and
(b) ask bidders for their comments on the proposal within the time (being not less than 1 hour) set by the auction manager; and
(c) take into account any comments received on the proposal.
(3) The auction manager must notify all bidders of the change before the round when the change takes effect.
9 All lots on offer simultaneously
All of the lots on offer at the auction will be open for bidding in each round of the auction.
10 General rules about bidding and bidding instructions
(1) Subject to clauses 11, 12 and 13, a bidder may bid on any combination of lots.
(2) In particular, a bidder is not restricted to bidding only on the lots that relate to the areas the bidder nominated in its eligibility nomination form.
(3) A bid is taken to have been made when the bidder’s bid for a round of the auction has passed data validation checks that are performed by the auction system.
(4) If 2 or more bidders make identical bids on the same lot and the bids are the high bids for the round, the bid selected by pseudorandom selection will be taken to be the high bid on that lot for the round.
(5) A bidder may change, delete or replace a bidding instruction in the auction system as often as desired during the bidding period of a round. The bidding instruction that will be treated as binding for a bidder is the bidding instruction in the auction system at the end time of the bidding period of a round.
11 Validity of bids
A bid in a round is valid if all of the following apply to the bid:
(a) it is from a list of specified bids that may be made on a lot for the round referred to in paragraph (e) of the definition of results in subclause 1 (2);
(b) it is received between the start time and end time of the bidding period for the round, subject to subsection 6.8 (2);
(c) for the lots in category 1 of table 1 of Schedule 1 to the Marketing Plan, the total size of the lots bid for (expressed in megahertz) does not exceed the allocation limits;
(d) the total of the lot ratings of the lots on which the bidder is active does not exceed the bidder’s eligibility points for the round.
Note As to when a bidder is active, see subclause 5 (2).
12 Eligibility points bidding cap
(1) For the first round, the eligibility points of a bidder will be the initial eligibility points recorded on the register for the bidder under paragraph 6.1 (2) (f).
(2) For any other round, the bidder’s eligibility points will be the lesser of:
(a) the bidder’s eligibility points in the previous round; and
(b) the bidder’s eligibility points worked out in accordance with clause 14.
(3) A bidder is not entitled to bid in such a way that the total of the lot ratings of the lots on which the bidder is active in any 1 round exceeds the bidder’s eligibility points at the time of the bid.
Note As to when a bidder is active, see subclause 5 (2).
(4) To ensure that a bidder’s eligibility points are not exceeded, the ACMA must process the bidder’s bids as follows:
(a) bids will be processed in order of lot number, starting with the lowest number;
(b) bids will be processed so that the total of the lot ratings for those bids does not exceed the bidder’s eligibility points;
(c) if the lot rating for a bid to be processed would result in the progressive total of lot ratings exceeding the bidder’s eligibility points — the ACMA must not process that bid or any further bids of the bidder and must treat the bid and those further bids as if they had not been made.
13 Bidding activity targets
Subject to the waiver provisions in clause 15, a bidder must bid in such a way during a round that the total of the lot ratings of the lots on which the bidder is active in that round is equal to or greater than the bidder’s activity target for the round.
Note 1 For activity target, see subclause 5 (1).
Note 2 A bidder who does not bid in the way mentioned in this clause may lose eligibility points in accordance with clause 14.
14 Loss of eligibility points
(1) A bidder’s eligibility points for a round (the next round) will be reduced to an amount worked out in accordance with subclause (2), if:
(a) the bidder does not meet its activity target in a round (the current round); and
(b) the bidder:
(i) does not exercise a waiver in the current round; or
(ii) tells the auction manager that a waiver under subclause 15 (5) is not to be exercised.
(2) The amount of a bidder’s eligibility points, rounded up to an integer, under subclause (1) for the next round is to be worked out as follows:
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where:
E is the bidder’s eligibility points for the next round; and
R is the sum of the lot ratings of the lots on which the bidder was active in the current round; and
P is the eligibility percentage that applied in the current round.
Example
A bidder’s eligibility points at the start of a round is 20 000. The activity requirement for the round is 60% (i.e. 12 000 eligibility points). In the round, the bidder’s activity is only 10 000 eligibility points and the bidder has not exercised a waiver, so eligibility points will be reduced as a result of under‑activity.
The bidder’s new eligibility points (E) will be current activity (R — 10 000) divided by the eligibility percentage that applied in the round (P — 0.6), which is 16 667 eligibility points. There is nothing the bidder can do once the auction is under way to recover eligibility points.
(3) A bidder who loses eligibility points in a round is only entitled to bid in future rounds in such a way that the total of the lot ratings of the lots on which the bidder is active does not exceed its eligibility points as reduced in accordance with this clause.
15 Waiver
(1) During the bidding period of a round, a bidder who does not bid and does not withdraw a bid may exercise a waiver to bid.
(2) A bidder may continue to exercise waivers until the bidder has used all its waivers fixed by the auction manager under paragraph 4.14 (c).
(3) A bidder who exercises a waiver in a round does not lose eligibility points in that round.
(4) If the auction manager exercises a waiver in a round on a bidder’s behalf, the bidder’s eligibility points for that round are not lost.
(5) If:
(a) a bidder bids in such a way that, but for this clause, the bidder would not meet its activity target; and
(b) all the waivers fixed by the auction manager for the bidder have not been exercised;
the auction manager will exercise a waiver on the bidder’s behalf, unless the bidder tells the auction manager, during the bidding process, that the waiver is not to be exercised.
(6) A round will not be regarded as being within the final 2 consecutive rounds under subclause 19 (1) if:
(a) there are no bids in the round (and, as a result, the round would, but for this subclause, be regarded as being within the final 2 consecutive rounds); and
(b) a bidder exercises a waiver in the round.
16 Withdrawal of bids
(1) Subject to subclause (3), during a round, a bidder may withdraw its bid on a lot from a previous round only if the bid is the high bid on the lot in that round.
(2) If a bidder withdraws a bid in a round in accordance with subclause (1) and no other bidder has made a bid on that lot in the round:
(a) the ACMA is taken to be the high bidder in that round for the lot, at the next highest bid of another bidder (whether the next highest bid was provided in the results as a high bid or not); and
(b) the minimum bid for the lot in the next round is equal to that next highest bid made on the lot in a previous round or, if there is no other bid, the starting price for the lot; and
(c) the bidder may bid again on that lot in a later round; and
(d) the bidder withdrawing the bid may lose eligibility points, as set out in clause 17.
(3) A bidder may only withdraw high bids on lots from a previous round for no more than 4 rounds.
17 Loss of eligibility points on withdrawal
If a bidder withdraws a bid in a round, the bidder will not be regarded as being active on that lot and may lose eligibility points.
Note For loss of eligibility points, see clause 14.
18 Withdrawal penalty
(1) A bidder is liable for the withdrawal penalty in subclause (2) if:
(a) the bidder withdraws a bid on a particular lot; and
(b) there is a subsequent bid on the lot but no subsequent bid on the lot is equal to or greater than the withdrawn bid.
Note A bid cannot be withdrawn unless it is the high bid for the lot — see clause 16.
(2) For subclause (1), the withdrawal penalty is an amount equal to the difference between the withdrawn bid and the highest subsequent bid.
(3) A bidder is liable for the withdrawal penalty in subclause (4) if:
(a) the bidder withdraws a bid on a particular lot; and
(b) there is no subsequent bid on the lot.
(4) For subclause (3), the withdrawal penalty is an amount equal to 10% of the withdrawn bid.
(5) A bidder may withdraw a bid on a particular lot more than once, but the bidder is liable for a withdrawal penalty each time.
(6) The amount of all withdrawal penalties imposed on an unsuccessful bidder will be deducted from the bidder’s eligibility payment before any remaining portion of the eligibility payment is refunded.
(7) If a withdrawal penalty is incurred by a winning bidder, the amount of the penalty will be added to the balance of winning price payable by the winning bidder under section 7.6.
Part 3 Bringing the auction to a close
19 Closing of the auction
(1) The rounds of the auction are to continue until:
(a) the auction is in its last stage; and
(b) no bid is made on any lot on offer for 2 consecutive rounds; and
(c) no bidder exercises a waiver for 2 consecutive rounds.
Note 1 The auction manager fixes the number of stages — see paragraph 4.14 (a), and may move the auction to the next stage — see clause 4.
Note 2 For general rules about bidding and bidding instructions see clause 10. For the exercise of waivers, see clause 15.
(2) At this point, the auction manager will tell each bidder using the auction system that the auction is closed.
(3) The exercise of a waiver by the auction manager under subclause 15 (5) does not constitute the exercise of a waiver by the bidder for paragraph (1) (c).
(4) If bidding is continuing after 20 rounds, the auction manager may consider it necessary, to achieve a result, to close the auction at the end of a round he or she specifies (the specified closing round).
(5) Before declaring the specified closing round, the auction manager must:
(a) at least 2 rounds before the proposed specified closing round, tell bidders that he or she proposes to close the auction at the end of the proposed specified closing round, and ask for their comments within the time (being not less than 1 hour) set by the auction manager; and
(b) take bidders’ comments on the proposal into account in deciding whether to close the auction; and
(c) if the auction manager decides to close the auction:
(i) tell all bidders of the specified closing round; and
(ii) at the end of the specified closing round, tell all bidders that the auction is closed.
(6) If the auction is closed under subclause (5), the bidder who is the highest bidder on a lot at the close of the auction is taken to have made the highest final bid on the lot and to be the winning bidder for that lot.
Schedule 2 Parts of the spectrum
(section 1.4)
The parts of the spectrum in the 1800 MHz band are:
(a) the following frequency ranges:
(i) 1725 MHz to 1785 MHz; and
(ii) 1820 MHz to 1880 MHz;
in the geographic areas specified in the table of clause 1 of Schedule 1 to the Re-allocation Declaration; and
(b) the following frequency ranges within the identified geographic areas of Australia as that term is defined in section 3 of the Designation Notice and specified in the Schedule to the Designation Notice:
(i) 1770 MHz to 1775 MHz and 1865 MHz to 1870 MHz in Adelaide;
(ii) 1710 MHz to 1712.5 MHz and 1805 MHz to 1807.5 MHz in regional South Australia; and
(iii) 1710 MHz to 1712.5 MHz and 1805 MHz to 1807.5 MHz in Cairns/Townsville.
Schedule 3 Allocation limits
(section 2.1)
The limits are 25 MHz of spectrum in the geographic areas specified in the table of clause 1 of Schedule 1 to the Re-allocation Declaration in the frequency ranges: