Division 2 Associates, specified group of persons and affiliations

13 Meaning of associate and specified group of persons

associate means:

1.    in relation to a person that is a body corporate:

2.             a director or secretary of the body; or

3.          a related body corporate; or

4.        a director or secretary of a related body corporate; or

5.         an individual who controls at least 15% of the voting power or holds at least 15% of the issued shares in the body; or

6.       in relation to a person that is an individual:

7.             the individual’s spouse; or

8.          the individual’s de facto partner within the meaning of the Acts Interpretation Act 1901; or

9.        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

10.         a body corporate of which the individual is a director or secretary; or

11.           a body corporate that is a related body corporate in relation to a body corporate of which the individual is a director or secretary; or

12.       in relation to any person (the first person) – any other person (other than the Commonwealth when represented by the ACMA) who is party to a relevant agreement with the first person that either or both:

13.             is for the use by one party to the agreement of spectrum licensed to another party to the agreement under a spectrum licence for a part of the spectrum referred to in the re-allocation declaration;

14.          relates to the acquisition of a spectrum licence for a part of the spectrum referred to in the re-allocation declaration.

Note: The part of the spectrum referred to in the re-allocation declaration is the frequency band 25.1 GHz to 27.5 GHz.

 (2) For paragraph (1)(c) of the definition of associate, a relevant agreement means an agreement, arrangement or understanding:

1.       whether formal or informal, or partly formal and partly informal; and
2.       whether written or oral, or partly written and partly oral; and
3.       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.

 (3) In this instrument:

specified group of persons means either of the following:

1.       a person and all associates of that person;
2.       subject to subsection (4) – any 2 or more groups referred to in paragraph (a) that have at least one member in common.

(4) For the purposes of paragraph (b) of the definition of specified group of persons in subsection (3), an individual is taken not to be a member in common between 2 or more groups that are comprised of a person (the relevant person) and the associates of that relevant person where all of the following apply:

1.       the individual is providing services as a company secretary (the company secretarial services) to one or more related bodies corporate of the relevant person in each of the groups;

2.       the individual is providing the company secretarial services through a person or entity (the third party service provider) that:

3.             is not in any of the groups; and

4.          carries on a business for the provision of professional services, including company secretarial services; and

5.        has, in the ordinary course of carrying on that business, been separately and independently engaged by an entity within each of those groups, under a contract or other legally binding arrangement, to provide the company secretarial services;

6.       the individual is not, otherwise than by reason of providing the company secretarial services, an associate of any of the relevant persons;

7.       each of the related bodies corporate to which the individual is providing the company secretarial services is incorporated outside Australia.

14 Affiliation between applicants or bidders

  Two applicants or bidders are affiliated if the applicants or bidders are in the same specified group of persons.

Note: Paragraph (b) of the definition of specified group of persons in subsection 13(3) means that 2 applicants or bidders are affiliated if they have an associate in common.  However, see subsection 13(4).

15 Information relevant to considering whether applicants or bidders are affiliated

 (1) When considering under this instrument whether 2 or more applicants or bidders are affiliated the ACMA must have regard to:

1.       completed application forms given under paragraph 28(1)(a) or paragraph 34(2)(a) or paragraph 41(1)(a); and
2.       updated application forms given under subsection 39(4); and
3.       statutory declarations and statements made under this instrument.

 (2) The ACMA may have regard to any other information that it considers relevant.

 

Part 3—Confidentiality

16 Meaning of confidential information

  In this instrument:

confidential information, in relation to an applicant or bidder, means:

1.       documents the applicant or bidder has given to the ACMA for the purposes of the auction; and

2.       information provided to the bidder under section 45 for the purpose of participating in the auction; and

3.       a provisional start demand of the applicant; and

4.       a start demand of the bidder for a clock round of the primary stage; and

5.       a posted demand of the bidder for a clock round of the primary stage; and

6.        a bid made by the bidder in the auction; and

7.       a proposed bid by the applicant or bidder or a bid under consideration by the applicant or bidder; and

8.       a proposed provisional start demand or proposed start demand by the applicant or bidder or a proposed provisional start demand or proposed start demand under consideration by the applicant or bidder; and

9.         the applicant’s or bidder’s bidding strategy; and

10.         the amount the applicant or bidder is willing to pay for:

11.             a lot or combination of lots; or

12.          a part or parts of the spectrum; and

13.       information that, if disclosed, could be reasonably expected to affect or be capable of affecting:

14.             bids made or proposed to be made by another applicant or bidder; or

15.          provisional start demands or proposed provisional start demands by another applicant; or

16.        start demands or proposed start demands by another applicant or bidder; or

17.         another applicant’s or bidder’s bidding strategy; and

18.         information that, if disclosed, could be reasonably expected to affect, or be capable of affecting, the outcome of the auction.

17 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, or a contractor of an applicant or bidder 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 auction to any person.

 (2) Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, or a contractor of an applicant or bidder, disclosing information about the auction:

1.       for the purpose of obtaining advice relating to the auction from a person in the person’s professional capacity; or
2.       for the purpose of obtaining finance to make a payment in relation to spectrum licences in the auction; or
3.       to the ACMA; or
4.       for an applicant or bidder – to a related person of that applicant or bidder; or
5.       for a related person of an applicant or bidder – to that applicant or bidder, or to another related person of the same applicant or bidder; or
6.        for a contractor of an applicant or bidder – to that applicant or bidder, or to a related person of the same applicant or bidder; or
7.       for the purpose of announcing or publishing that the applicant or bidder is participating in the auction;
8.       as authorised by this instrument or as otherwise required by law.

Note: In some cases, the person to whom the information is disclosed may become a related person or contractor who is required to give a deed of confidentiality to the ACMA, see section 21.

 (3) Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, or a contractor of an applicant or bidder, disclosing information about the auction if:

1.       the information is already publicly available; and
2.       the information was not made available because of a breach of this section.

18 Duration of confidentiality obligation

  Section 17 applies to an applicant or bidder, a related person of the applicant or bidder, and a contractor of the applicant or bidder until:

1.       the applicant, as a withdrawn applicant, is notified under section 63 that the applicant’s confidentiality obligation is at an end; or
2.       for a bidder (whether or not a winning bidder), the ACMA announces or publishes the information mentioned in subsection 69(1) (after winning bidders are notified in accordance with subsection 69(2)).

19 Reporting breach of confidentiality

  An applicant or bidder, or a related person of an applicant or bidder, or a contractor of an applicant or bidder, who:

1.       discloses confidential information in breach of section 17; or
2.       receives the confidential information of another applicant or bidder;

  must report the disclosure or receipt in writing to the ACMA as soon as possible, but no later than 2 working days after becoming aware the disclosure or receipt has occurred.

20 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, or a contractor of the applicant or bidder, may have disclosed confidential information in breach of section 17 or received confidential information as a result of a breach of section 17, the ACMA must:

1.       tell the applicant or bidder, giving details of the matter; and
2.       ask the applicant or bidder to make submissions about the matter; and
3.       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 the end of the auction period, the ACMA is not required to tell the applicant or bidder before the auction period ends, but must tell the applicant or bidder as soon as practicable after the auction period ends.

21 Deed of confidentiality required from related persons and contractors

 (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 deed of confidentiality if the person is:

1.       an employee of the applicant or bidder; or
2.       an employee of a related body corporate of the applicant or bidder that provides services to the applicant or bidder.

 (2) A contractor of an applicant or bidder who has knowledge of the applicant’s or bidder’s confidential information must give the ACMA a deed of confidentiality.

 (3) Subsection (2) does not apply to a contractor under a contract:

1.       for the purpose of obtaining advice relating to the auction from a person in the person’s professional capacity; or
2.       for the purpose of obtaining finance to make a payment in relation to spectrum licences in the auction.

 (4) If a person to whom paragraph (1)(a) or (1)(b) or subsection (2) applies receives knowledge of the applicant’s confidential information before the application deadline or new application deadline (if there is one), the person must give the ACMA the deed of confidentiality before the relevant 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 www.acma.gov.au, see paragraphs 25(1)(h) and 26(1)(h).

 

Part 4—Procedures before auction

Division 1 Preliminary

22 Auction manager

  The ACMA must, in writing, appoint:

1.       a member within the meaning of the Australian Communications and Media Authority Act 2005; or
2.       a member of the ACMA staff; or
3.       a person whose services are made available for the purposes of the ACMA under paragraph 55(1)(a) of the Australian Communications and Media Authority Act 2005;

to manage the auction.

23 Setting application fee

  Before the ACMA publishes a notice inviting applications for the auction, it must set the amount of the application fee.

24 Application fee and withdrawal on variation of starting prices

 (1) Subject to subsection (2), an application fee paid under this instrument is not refundable in any circumstances, including if an applicant or bidder withdraws, or is taken to withdraw, from the auction, or is not permitted to make a bid in the auction.

 (2) An application fee paid under this instrument is refundable if the ACMA varies a starting price under paragraph 37(1)(a) and an applicant withdraws its application before the extended eligibility deadline by giving the ACMA notice in writing.

 (3) If subsection (2) applies to an applicant, the ACMA on behalf of the Commonwealth must refund the application fee no later than 6 months after the applicant withdraws its application.

Division 2 Advertising the auction

25 Advertising of auction by the ACMA

 (1) The ACMA must publish on its website a notice that:

1.       describes the parts of the spectrum to be auctioned; and

2.       gives a brief description of the way the auction will be conducted; and

3.       states that the auction will be conducted in accordance with this instrument; and

4.       invites persons to apply to the ACMA to take part in the auction; and

5.       states the date and time (the application deadline) before which:

6.         completed application forms, completed deeds of acknowledgement and completed deeds of confidentiality by applicants must be received by the ACMA; and

7.       the application fee must be paid to the ACMA on behalf of the Commonwealth; and

8.        states the date and time (the eligibility deadline) before which:

9.        completed eligibility nomination forms must be received by the ACMA; and             

10.      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, or a combination of both; and             

11.       states that applications may only be withdrawn before the eligibility deadline or extended eligibility deadline (if there is one); and

12.       states that the applicant information package for the auction 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.

26 Applicant information package

 (1) The applicant information package must contain the following information:

1.       the re-allocation declaration;
2.       the spectrum licence limits direction;
3.       the marketing plan;
4.       this instrument;
5.       a guide to the auction;
6.        an application form approved by the ACMA, with instructions for completing and giving the application form to the ACMA;
7.       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 instrument;
8.       a deed of confidentiality form approved by the ACMA, that includes a statement that an applicant, or a related person of an applicant, or a contractor of an applicant, agrees not to disclose confidential information before section 17 ceases to apply to the relevant applicant or related person or contractor;
9.         the amount of the application fee for the auction;
10.         the application deadline, noting this may subsequently be replaced if there is a new application deadline;
11.       statutory declaration forms under section 31, paragraph 34(5)(c) and section 42, and the form for a statement under section 60, for the purposes of this instrument;
12.         an eligibility nomination form approved by the ACMA, with instructions for completing and giving the eligibility nomination form to the ACMA;
13.     a deed of financial security form approved by the ACMA;
14.       information about making an eligibility payment, or giving a deed of financial security, or both making an eligibility payment and giving a deed of financial security, for an applicant to secure maximum eligibility points;
15.       the eligibility deadline, noting this may subsequently change if there is an extended eligibility deadline;
16.       advice that the eligibility deadline or extended eligibility deadline (if there is one), is the last time for withdrawal from the auction;
17.       the physical address for giving documents to the ACMA;
18.        the email address for giving documents to the ACMA;
19.        the spectrum access charges direction.

 (2) The applicant information package may also contain other information about the auction.

 (3) The ACMA must publish the applicant information package on its website as soon as practicable after notice of the auction is published under subsection 25(1).

 (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.

27 Starting prices, lot ratings and minimum spectrum requirements

 (1) The ACMA must set the following amounts:

1.       the starting price for the lots of each product in the auction;
2.       the lot rating for the lots of each product in the auction;
3.       the options for the minimum spectrum requirement (including provisional minimum spectrum requirement), in lots, that an applicant may select for lots of a product in the auction.             

Note: Paragraph (a) relates to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act and is disallowable under section 42 of the Legislation Act 2003.

 (2) After setting the amounts mentioned in paragraphs (1)(a), (1)(b) and (1)(c), the ACMA must approve an application form and eligibility nomination form.

 (3) The ACMA must ensure that the eligibility nomination form includes a requirement for and a guide to:

1.       specifying the number of lots of each product desired by an applicant as the provisional start demands of the applicant before the pre-bidding phase of the primary stage, at the starting price for the lots of the product; and
2.       calculating and specifying the maximum eligibility points of an applicant based on the specified provisional start demands of the applicant; and
3.       in relation to the lots of each product, either:

 (i) not selecting a provisional minimum spectrum requirement; or

 (ii) selecting only one option as the provisional minimum spectrum requirement;

  for the lots of each product.

 (4) The ACMA must publish the amounts set under subsection (1) and the application form and eligibility nomination form on its website as soon as practicable after notice of the auction is published under subsection 25(1).