Division 5 Extension of deadlines and related requirements
37 Varying starting prices, lot ratings and deadlines
(1) Not less than 5 working days before the eligibility deadline, the ACMA may:
vary a starting price set under paragraph 27(1)(a); and
if a starting price is varied, vary a lot rating set under paragraph 27(1)(b).
Note: Varying a starting price set under paragraph 27(1)(a) relates to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act. Accordingly, paragraph 37(1)(a) is disallowable under section 42 of the Legislation Act 2003.
(2) When making any variations under subsection (1), the ACMA must:
state a later date and time to replace the application deadline, as the new application deadline, which must be 20 working days after the date of the variations; and
vary the eligibility deadline by stating a later date and time as the extended eligibility deadline, which must be at least 20 working days after the eligibility deadline.
(3) After making any variations under subsections (1) and (2), the ACMA must approve an updated eligibility nomination form.
(4) The ACMA must ensure that the updated eligibility nomination form includes a requirement for and a guide to:
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
calculating and specifying the maximum eligibility points of an applicant based on the specified provisional start demands of the applicant; and
in relation to 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.
(5) The ACMA must as soon as practicable after making any variations under subsection (1) publish, on its website:
a notice of the amounts set under paragraphs (1)(a) and (1)(b); and
a notice of the date and time of the new application deadline; and
a notice of the date and time of the extended eligibility deadline; and
the updated eligibility nomination form, with instructions for completing and giving the updated eligibility nomination form to the ACMA.
38 Notice of updated documents
The ACMA must as soon as practicable after making any variations under subsections 37(1) and 37(2) notify any applicants, in writing, that:
they must, before the extended eligibility deadline, give the ACMA a completed updated eligibility nomination form; and
they may, before the extended eligibility deadline, do any of the following:
make an additional eligibility payment to the ACMA on behalf of the Commonwealth for the purposes of section 36;
update their deeds of financial security for the purposes of section 36;
if necessary; and
they may, before the new application deadline, give the ACMA an updated application form, if necessary.
39 Giving of updated documents and updating financial security
(1) No later than the extended eligibility deadline, an applicant must give the ACMA a completed updated eligibility nomination form, which:
specifies the number of lots of each product desired by the applicant as valid 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
specifies the maximum eligibility points of the applicant, based on the specified provisional start demands; and
in relation to each product, either does not select a provisional minimum spectrum requirement, or selects only one option as the provisional minimum spectrum requirement, for the lots of each product.
(2) If an applicant does not give the ACMA a completed updated eligibility nomination form, in accordance with subsection (1), the applicant is taken to have withdrawn its application.
(3) No later than the extended eligibility deadline, an applicant may do any of the following:
make an additional eligibility payment to the ACMA on behalf of the Commonwealth for the purposes of section 36;
update its deed of financial security for the purposes of section 36.
Note 1: If an applicant makes an eligibility payment or gives a deed of financial security (or both) for an amount less than the amount under subsection 36(2), see subsections 36(3) to 36(6).
Note 2: If an applicant makes an eligibility payment or gives a deed of financial security (or both) for an amount more than the amount under subsection 36(2), see subsection 63(2) or 64(2) or paragraph 67(1)(a) for refund of the whole or part of the eligibility payment. Otherwise, see subsection 65(2) in relation to calculating the balance of the winning price.
(4) No later than the new application deadline, an applicant may give the ACMA an updated application form.
(5) If a deed of financial security (for paragraph (3)(b)) is given to the ACMA on behalf of the Commonwealth by email before the extended eligibility deadline, the original deed must be received by the ACMA no later than 3 working days after the extended eligibility deadline (or, if the ACMA agrees to a later time, the agreed time) for the application under subsection 28(1) or 34(2) to be valid.
40 Notice inviting new applicants to the auction
(1) As soon as practicable after making any variations under subsections 37(1) and (2) the ACMA must publish on its website a notice that:
invites persons, who are not already applicants, to apply to the ACMA to take part in the auction; and
states the date and time, being the new application deadline, before which:
completed application forms, completed deeds of acknowledgement and completed deeds of confidentiality by new applicants must be received by the ACMA; and
the application fee must be paid to the ACMA on behalf of the Commonwealth; and
states the date and time, being the extended eligibility deadline, before which:
completed eligibility nomination forms (being updated eligibility nomination forms) must be received by the ACMA; and
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
states that applications may only be withdrawn before the extended eligibility deadline; and
states that the applicant information package (with changes to the contents as a result of any variations under section 37) 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.
41 Making a new application
(1) A person, who is not already an applicant (including a withdrawn applicant), 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 deed of acknowledgement executed by the applicant; and
(c) giving the ACMA a deed of confidentiality executed by the applicant; and
(d) paying the application fee;
before the new application deadline.
Note: For information on how an application fee must be paid, see section 9.
(2) After the new application deadline and no later than the extended eligibility deadline, a new applicant must:
give the ACMA a completed eligibility nomination form (being an updated eligibility nomination form), which:
specifies the number of lots of each product desired by the applicant as valid 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
specifies the maximum eligibility points of the applicant, based on the specified provisional start demands; and
in relation to each product, either does not select a provisional minimum spectrum requirement, or selects only one option as the provisional minimum spectrum requirement, for the lots of each product; and
in accordance with section 36, do one of the following:
make an eligibility payment of an amount to the ACMA on behalf of the Commonwealth;
give the ACMA on behalf of the Commonwealth a deed of financial security, for an amount;
make an eligibility payment of part of an amount and give a deed of financial security for the remainder.
Note: For information on how an eligibility payment is made, see section 9. For information on how a deed of financial security is given, see section 7 and subsections 36(7) and 36(8).
(3) For paragraph (2)(b), amount, in relation to a person, has the meaning given by subsection 36(2).
(4) If, before the extended eligibility deadline, a new applicant has not:
given the ACMA a completed eligibility nomination form (being an updated eligibility nomination form); and
made an eligibility payment to the ACMA on behalf of the Commonwealth, or given a deed of financial security to the ACMA on behalf of the Commonwealth, or a combination of both;
in accordance with subsection (2), the applicant is taken to have withdrawn its application.
(5) A new applicant may give the ACMA an updated document:
for paragraph (1)(a), (1)(b) or (1)(c) – at any time until the new application deadline, but not after the new application deadline; or
for paragraph (2)(a), or subparagraph (2)(b)(ii) or (2)(b)(iii) – at any time until the extended eligibility deadline, but not after the extended eligibility deadline.
(6) If a deed of financial security (for subparagraph (2)(b)(ii) or (2)(b)(iii)) is given to the ACMA on behalf of the Commonwealth by email before the extended eligibility deadline, the original deed must be received by the ACMA no later than 3 working days after the extended eligibility deadline (or, if the ACMA agrees to a later time, the agreed time) for the application to be valid.
42 Statutory declarations and affiliations
(1) If the ACMA receives a completed application form, deed of acknowledgement, deed of confidentiality and application fee from a new applicant under subsection 41(1), the ACMA must, after the new application deadline:
give each applicant (including new applicants) updated details about the identity of all other applicants, and the persons identified as the associates of other applicants; and
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 updated information does not need to include those applicants who have already withdrawn.
(3) The ACMA must state a deadline, at least 10 working days after the date of the request, before which the statutory declaration must be received by the ACMA.
(4) If an applicant does not give the ACMA a statutory declaration in accordance with subsection (3), the applicant is taken to have withdrawn its application.
(5) If the ACMA is satisfied that two or more applicants are affiliated, the procedures in sections 33 and 34 apply.