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Commonwealth legislation
This Act has been repealed and is no longer in force. It is retained for historical reference.
This determination sets out how the 26.5–27.5 GHz spectrum is allocated: primarily by a simultaneous multiple‑round electronic auction, or by offering licences at a pre‑determined price if demand does not exceed supply (see s1.3, Part 3). Applicants must register, pay an entry fee, an eligibility payment (and possibly additional payments or financial security), bid under activity/eligibility rules and may face withdrawal penalties. The ACA and its appointed auction manager run the auction, control timing, technical systems (encryption/software) and several procedural discretions.
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Direct links to the current provisions in Radiocommunications (Spectrum Licence Allocation-27 GHz Band) Determination 2000.
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Summary of Allocation System 5
[Name of determination 7](#_TOC_250040)
[Commencement 7](#_TOC_250039)
[Purpose of determination 7](#_TOC_250038)
[Definitions 7](#_TOC_250037)
[Approval of forms 11](#_TOC_250036)
[Auction manager 11](#_TOC_250035)
[Ways in which the ACA gives information 11](#_TOC_250034)
[Communicating with ACA 11](#_TOC_250033)
Allocation of licence to highest bidder
Calculation of balance of bid price
Payment of balance of bid price
Default by successful applicant
Allocation of defaulted lots
Refunds to unsuccessful applicants
Unsold lots
Liability of ACA
Recovery of damages by ACA
Giving of information by ACA
Information provided by applicant
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Note This summary is intended to give an overview of the allocation system. Readers who want to fully understand how the system works should study the entire determination in detail.
This determination makes provision for the allocation of parts of the spectrum between 26.5 GHz and 27.5 GHz throughout Australia that have been identified as being available for allocation under section 36 of the Radiocommunications Act 1992 (the Act). The ACA proposes to allocate spectrum licences by a simultaneous multiple round auction of spectrum allocation lots that then become the subject of spectrum licences. If applicants' needs in all areas can be met without going to auction, the licences will be offered for a pre-determined price. Details of the overall scheme for allocation and issue of spectrum licences are set out in the relevant Marketing Plan prepared by the ACA under section 39 or 39A of the Act, as applicable.
Each lot covers an area and a frequency band - for details, see the relevant Marketing Plan. Each lot has a lot rating reflecting its relative value, determined by the ACA. People wishing to bid are asked to nominate an aggregate amount of lot ratings for the lots they wish to acquire, and this will be regarded as their "eligibility" in the auction. People wishing to obtain a licence by this process must register, pay an entry fee and make a refundable proportional eligibility payment based on the eligibility they nominate. The eligibility payment is held against payment of bid withdrawal penalties as a means of discouraging applicants from abusing the auction process. An additional eligibility payment may also be required during the course of the auction if the amount of eligibility payment which has already been paid falls below 10 % of the total of high bids of an applicant.
The auction will be conducted electronically. Registered applicants may bid on any number of lots, in any combination, provided that their bidding activity does not exceed their eligibility. Applicants may nominate to be eligible for all lots (within the bidding limits), but they must make the necessary eligibility payment. Applicants interested in specific areas, or particular bands, need only make a sufficient eligibility payment to cover these.
This determination is the Radiocommunications (Spectrum Licence Allocation-27GHz Band) Determination 2000.
This determination commences on 2000.
This determination sets out the procedures for allocating spectrum licences:
(a) by a simultaneous multiple round auction of spectrum allocation lots that then become the subject of spectrum licences; and
(b) for a pre-determined price; and
(c) in the 27 GHz band.
Note For paragraph 1.3 (b), see Part 3.
In this determination, unless the contrary intention appears:
ACN or ARBN means the relevant registration numbers for a company or body under the Corporations Law.
Act means the Radiocommunications Act 1992.
activity target, for a registered applicant during a round in a stage, means the figure obtained by multiplying the amount of the registered applicant's eligibility for that round by the percentage of eligibility fixed by the auction manager for that stage under paragraph 2.18 (b).
additional eligibility payment means an additional payment worked out under section 4.25.
application documents means a completed application form and a completed Deed of Acknowledgment.
The ACA must, by writing, approve the following documents:
an application form;
a Deed of Financial Security that complies with section 2.8;
a Deed of Acknowledgment, that includes a statement to the effect that the applicant agrees, if successful in respect of a lot, to pay the ACA the balance of the bid price for the lot as required by section 5.3.
The ACA may approve more than 1 form of a document.
The ACA must, by writing, appoint a person (the auction manager) to manage an auction.
The ACA may give any information or documents to a person under this determination:
by letter; or
by telephone; or
by fax.
The ACA may make information available to a person:
if the person is using the auction computer system - by making the information available on the system; or
by publishing the information on the internet.
Once an auction has started, a form or notice required to be given to the ACA in relation to the auction must be given by
All payments to the ACA must be made in Australian currency.
Monies due to the ACA for the following purposes must be paid by the date required by this determination and in accordance with this determination:
entry fee;
eligibility payment;
any additional eligibility payment as required by section 4.25;
monies payable under a performance payment;
10% of the balance of the bid price;
the remainder of the balance of the bid price;
the balance of the pre-determined price.
Monies due to the ACA for any of the purposes set out in subsection (2) must be paid:
by bank cheque; or
by bank transfer.
If a payment is required to be made by a specific date, it is sufficient if, by that date, that either:
the applicant gives the ACA a bank cheque for the amount of the payment; or
if paying by bank transfer, the applicant:
does everything necessary to make the payment; and
gives the ACA evidence that the payment has been made.
A payment by bank transfer must be paid into the ACA's bank account, details of which are as follows:
Bank-Reserve Bank of Australia;
Before the ACA publishes a notice inviting applications for an auction, it must set:
(a) the amount of the entry fee; and
(b) the amount of the eligibility payment required for each unit of eligibility nominated by an applicant; and
(c) the financial security amount for the auction.
Before holding an auction, the ACA must publish a notice in a newspaper circulating nationally in Australia:
describing the parts of the spectrum to be auctioned; and
giving a brief description of the way the auction will be conducted; and
inviting people to apply to the ACA to take part in the auction; and
stating the date and time by which applications must be received by the ACA ( the application closing date); and
stating the date and time by which eligibility payments, and performance payments or Deeds of Financial Security, must be lodged with the ACA (the eligibility payment date); and
stating that licences will be auctioned in accordance with this determination; and
stating that further information (the Applicant Information Package) can be obtained from the ACA at the address given in the notice.
If a matter mentioned in the notice changes, the ACA must publish another notice giving details of the change in a newspaper circulating nationally in Australia.
The Applicant Information Package must contain the following information and documents:
if a part of the spectrum to be auctioned was the subject of a notice by the Minister under section 36 of the Act designating a part that has not previously been allocated - the notice;
if a part of the spectrum to be auctioned was the subject of a spectrum re-allocation declaration by the Minister under section 153B of the Act- the declaration;
a guide to the auction process;
the Marketing Plan;
this determination;
the application form, with instructions for completing and lodging the form;
the Deed of Financial Security;
information about the performance payment as an alternative to providing a Deed of Financial Security, if required;
the Deed of Acknowledgment;
the amount of the entry fee for the auction set by the ACA under paragraph 2.1 (a);
the amount of the eligibility payment required for each unit of eligibility nominated by the applicant set by the ACA under paragraph 2.1 (b);
the financial security amount set by the ACA under paragraph 2.l(c);
the application closing date and time for making applications;
the eligibility payment date and time for lodging eligibility payments, and performance payments or Deeds of Financial Security;
the address of the auction centre.
A person who wants to obtain a spectrum licence under this determination must apply to the ACA for registration and pay the entry fee.
The person must give the ACA the following documents (the
application documents):
a completed application form;
a completed Deed of Acknowledgment.
The entry fee must be paid in accordance with section 1.9.
Note: By section 1.9, the entry fee may be paid by bank cheque or bank transfer. If paid by bank transfer, the applicant must give the ACA evidence that the payment has been made. If the payment is not in the ACA's bank account within 5 working days of the application date, the application ceases to have effect.
The application must be lodged with the ACA, at the auction centre, by the advertised time on the advertised application closing date.
As soon as practicable after receiving the application, the ACA must confirm receipt by fax or by letter (if the ACA does not know the applicant's fax number) noting particulars of the applicant's:
name; and
address; and
ACN or ARBN; and
initial eligibility.
(1) An applicant must, by the advertised time on the advertised eligibility payment date:
(a) pay the ACA an eligibility payment, worked out in accordance with section 2.7; and
(b) either:
(i) give the ACA a completed Deed of Financial Security, if required under section 2.8; or
(ii) pay the ACA a performance payment.
(2) The eligibility payment and performance payment must be paid in accordance with section 1.9.
Note: By section 1.9, the eligibility payment and performance payment may be paid by bank cheque or bank transfer. If paid by bank transfer, the applicant must give the ACA evidence that the payment has been made. If the payment is not in the ACA's bank account within 5 working days of the closing date, the application ceases to have effect.
The amount of eligibility payment payable by an applicant is the amount in dollars worked out by multiplying the amount of the applicant's initial eligibility by the amount set by the ACA under paragraph 2.1 (b).
(1) A person who wishes to be registered as an applicant must give the ACA a Deed of Financial Security or performance payment unless:
(a) the applicant satisfies the ACA that it is an authority of the Commonwealth, a State or a Territory; or
(b) the applicant satisfies the ACA that it is a subsidiary, within the meaning of the Corporations Law, of an authority of the Commonwealth, a State or a Territory; or
(c) the ACA decides, under subsection (2), that the applicant need not give the ACA a Deed of Financial Security or performance payment.
(2) If a company (other than a company incorporated outside Australia) satisfies the ACA that it does not carry on business for profit, the ACA:
(a) may decide that the company need not give the ACA a Deed of Financial Security or a performance payment; and
(b) must notify the company in writing of the decision as soon as practicable after making the decision.
(3) Each person giving a Deed of Financial Security is bound by force of this determination to indemnify the ACA according to the terms of the Deed.
(4) The amount secured under the Deed of Financial Security or the performance payment must be at least an amount in dollars calculated as the initial eligibility nominated by the applicant multiplied by the financial security amount set by the ACA under paragraph 2.1(c).
If a Deed of Financial Security is made under a power of attorney for a corporation, the applicant must ensure that a copy of the power of attorney is lodged with the Deed.
This section applies if an applicant gives the ACA a performance payment instead of a Deed of Financial Security.
Performance payment monies lodged with the ACA may be dealt with in accordance with this determination as security for the timely discharge of the applicant's financial obligations to the ACA under this determination.
(1) To meet any undischarged liability owed by an applicant to the ACA for the matters mentioned in subsection (2), monies will be forfeited to the ACA that:
(a) are secured by the performance payment; or
(b) are secured by, and paid to the ACA, under the Deed of Financial Security; or
(c) have been paid by the promisor to the ACA under section 1.4 of the Deed of Financial Security.
(2) For subsection (1), the matters include:
(a) any act or omission by the applicant, its officers, employees, agents, volunteers, subcontractors or associates in connection with the applicant's participation m an allocation process conducted under this determination; or
(b) any breach or default by the applicant of its obligations or warranties under the Deed of Acknowledgment, this determination, or both.
(1) The ACA must maintain a register of applicants.
(2) The register may be in electronic form.
(3) For each applicant, the register must contain details of:
(a) the name and address of the applicant; and
(b) the applicant's telephone and fax numbers; and
(c) the applicant's eligibility; and
(d) the applicant's bidder identification number; and
(1) After the closing date but at least 5 working days before the start of the auction, the ACA must publish a notice m a newspaper circulating in Australia setting out:
(a) if the registered applicant 1s a company, for each company:
(i) its name; and
(ii) its registered address; and
(iii) its ACN or ARBN; and
(b) if the registered applicant is an individual, the name of the person, if the person has consented to the publication of his or her name; and
(c) the initial eligibility of all registered applicants; and
(d) the bidder identification numbers of all registered applicants.
(2) After the notice has been published, the ACA may give out the information in the notice in other ways.
(1) A registered applicant who bids must use software made available by the ACA.
Note See section 4.8 for ways of taking part in the auction.
(2) The ACA will give each applicant:
(a) assistance in installing the software for the auction computer system; and
(b) training in using the software.
(3) However, subsection (2) does not apply to an applicant who proposes to bid from outside Australia.
Note The ACA will make an auction guide available to each registered applicant to help the applicant take part in the auction: see paragraph 2.3 (1) (c).
(1) After the closing date, the ACA must set the following 3 amounts:
(a) the starting price per lot rating;
(b) the increment of price per lot rating;
(c) the increment of percentage of high bid.
(2) The starting bid for each lot is the amount worked out by multiplying the starting price per lot rating by the lot rating for the lot.
Note The auction manager may vary the amounts fixed under subsection 2.17 (1): see section 4.13.
After the closing date, the auction manager must:
fix the number of stages for the auction; and
fix a percentage of eligibility as the percentage to be applied in calculating the activity target during each stage of the auction; and
fix the number of waivers for each registered applicant, being the same number for all applicants; and
set the amount of time allocated for the bidding period for each round of the auction; and
set the amount of time allocated for the results period of each round of the auction; and
set the schedule for the first and second rounds, based on the amounts referred to in paragraphs (d) and (e), taking into account the effect of section 4.4; and
tell all registered applicants of these matters.
(1) If, for each area available for allocation as described in the Marketing Plan, the total amount of bandwidth nominated for the area by all applicants for the area is equal to or less than the bandwidth available for that area, the ACA will offer to allocate licences for the area for a pre-determined price, as set out in this Part.
(2) The offer of a licence will be conditional on payment of the pre-determined price.
(1) The pre-determined price for a licence is worked out as follows:
(a) the ACA will identify each lot to be included in the licence;
(b) the ACA will work out the starting bid for each lot;
(c) the ACA will add up the starting bids for each lot.
Note The starting bid is worked out in accordance with subsection 2.17 (2).
(2) The balance of the pre-determined price payable by an applicant is the pre-determined price less the amount of the eligibility payment paid by the applicant.
(1) The ACA will offer each applicant a licence or licences for a bandwidth in the area nominated by the applicant.
(2) The ACA will send each applicant, by receipted mail:
(a) a draft of the licence or licences; and
The balance of the pre-determined price is payable:
If an applicant refuses to accept the licence or licences offered, and does not withdraw its application:
the offer of all other licences is taken to be withdrawn; and
all lots will be allocated by auction, in accordance with this determination.
If an applicant does not pay the balance of the pre-determined price for a licence or licences in accordance with section 3.4:
the applicant ceases to be entitled to be allocated the licence or licences; and
the eligibility payment paid by the applicant is forfeited to the ACA; and
the allocation of licences under this Part to other applicants is not affected; and
the lots included in the licence or licences are to be treated as unsold lots under section 6.1.
(1) An auction consists of a number of stages, 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 paragraph 2.18 (f).
(1) Each round of an auction is made up of the following periods and activities:
(a) the bidding period \- during which registered applicants make their bidding instructions;
(b) the results period \- during which the auction manager works out the high bids on each lot offered, using the auction computer system and then publishes, using the auction computer system and the internet, the results for the round.
Note For paragraph (a), the following provisions are relevant:
(a) in the case of electronic bidding \- a bid is taken to have been made when the bidding instruction file containing the bid has been authenticated by the ACA's auction computer system in accordance with paragraph 4.9 (1) (f);
(b) in the case of emergency telephone bidding \- a bid is taken to have been made when the bidding instruction file containing the bid has been authenticated by the ACA's auction computer system in accordance with paragraph 4.10 (1) (f);
(c) in the case of withdrawing bids \- withdrawal may be subject to
penalties, as set out in section 4.23.
(1) An auction consists of a number of stages, 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 paragraph 2.18 (f).
(1) Each round of an auction is made up of the following periods and activities:
(a) the bidding period \- during which registered applicants make their bidding instructions;
(b) the results period \- during which the auction manager works out the high bids on each lot offered, using the auction computer system and then publishes, using the auction computer system and the internet, the results for the round.
Note For paragraph (a), the following provisions are relevant:
(a) in the case of electronic bidding \- a bid is taken to have been made when the bidding instruction file containing the bid has been authenticated by the ACA's auction computer system in accordance with paragraph 4.9 (1) (f);
(b) in the case of emergency telephone bidding \- a bid is taken to have been made when the bidding instruction file containing the bid has been authenticated by the ACA's auction computer system in accordance with paragraph 4.10 (1) (f);
(c) in the case of withdrawing bids \- withdrawal may be subject to
penalties, as set out in section 4.23.
The schedule for a round must include:
the date and time at which the round is to start and bidding opens; and
the date and time when the bidding period ends and the results period starts; and
the date and time when the results period ends and the round ends.
(1) Once the auction opens, there will be at least 1 round each working day unless the day is a recess day.
(1) The auction manager may declare a day to be a recess day.
(2) Before declaring a recess day, the auction manager must give registered applicants 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 registered applicants of this.
4.6 Auction manager may vary the length of the bidding or results period
(1) The auction manager may vary the length of the bidding period or the results period of a round in the auction.
(2) Before varying the length of time set for the bidding period or the results period of a round in the auction, the auction manager must give registered applicants an opportunity to comment on the proposed variation and take into account any comments received.
(3) If the auction manager decides to vary the length of time set for the bidding period or the results period of a round in the auction, the auction manager must tell all registered applicants of this and specify the round when the change will take effect.
(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 give registered applicants an opportunity to
(1) The way for a registered applicant to take part in an auction is by electronic means.
(2) A registered applicant taking part in an auction must use only the software made available by the ACA.
(3) However, a registered applicant may take part by telephone if, because of what the ACA considers to be an emergency, the registered applicant is unable to take part electronically.
(4) In this Division:
taking part means bidding, making automatic re-bids, withdrawing a bid, exercising a waiver or giving instructions not to exercise a waiver.
Note For general rules about bidding, see section 4.16; for rules on using a waiver of the activity rules, see section 4.20; and for withdrawing a bid, see section 4.21.
(1) The procedure for taking part in the auction electronically is as follows:
(a) a registered applicant must use the bidding software available from the ACA to prepare its bidding instruction file for the round;
(b) the bidding instruction file will be encrypted for transmission and digitally signed using keys provided by the ACA to authenticate the file as having been created by the registered applicant;
(c) the bidding software will permit the registered applicant to print out a report of the bidding instructions contained in the bidding instruction file before transmission;
(d) the registered applicant must use the software to connect to the ACA's auction computer system;
(1) The procedure for emergency telephone bidding is as follows:
(a) a registered applicant must use the telephone number notified by the auction manager as the number for telephone bidding;
(b) the registered applicant's call will be taken by an ACA operator;
(c) the registered applicant must quote the bidder identification number and transaction code key, as described in Schedule 1, assigned to the applicant by the ACA;
(d) the registered applicant must meet any additional identification requirements imposed by the ACA, as set out in Schedule 1;
(e) the ACA must enter the bidding instructions, as directed by the registered applicant, into the auction computer system as soon as practicable;
(f) the time that bidding instructions contained in a bidding instruction file are made is taken to be the time that the file was authenticated by the ACA's auction computer system;
(g) the ACA must print out a confirmation of the bidding instructions from the auction computer system;
(h) the ACA must send this to the registered applicant by fax, if the applicant has nominated a fax number;
(1) A registered applicant must use its bidder identification number when bidding, and must comply with the other identification requirements set out in Schedule 1.
(2) If the auction manager tells registered applicants to use additional identification, they must do so.
(1) A bid on a lot below the starting bid for that lot will not be accepted.
Note For starting bids, see section 2.17.
(2) After a starting bid has been made on a lot in a round, a bid on the lot below the minimum bid for that lot in a later round will not be accepted.
(3) The minimum bid for a lot is the sum of the high bid on that lot in the previous round, as published in the results and information for the round, and the higher of:
(a) the increment of price per lot rating set under section 2.17, multiplied by the lot rating for the lot; and
(b) the increment of percentage of high bid set under section 2.17, multiplied by that high bid.
(4) However, if a bid on a lot is withdrawn, the minimum bid on that lot is worked out in accordance with section 4.21.
(5) A registered applicant who holds the high bid on a lot from a previous round is not required by subsection (2) to raise its own high bid, but may do so.
(1) Despite section 4.12, at any time during the auction the auction manager may change the amounts fixed under subsection 2.17(1):
(a) to vary the amount of the starting bid on a lot; or
(b) to vary the minimum bid on a lot.
(2) Before doing this, the auction manager must:
(a) tell registered applicants of the proposed change; and
(b) give registered applicants the opportunity to comment on the proposal.
(3) When changing the amounts, the auction manager must have regard to registered applicants' comments so far as the comments are relevant to the issue.
(4) The auction manager must notify all registered applicants of the change before the round when the change takes effect.
(1) A registered applicant may not make an automatic re-bid on a lot in a round unless the applicant:
(a) makes a bid on the lot in the round; or
(b) is the high bidder on the lot from the previous round.
(2) An automatic re-bid:
(a) only applies in the round in which it is made; and
(b) must be:
if the registered applicant makes the starting bid on a lot \- at least 1 minimum bid increment above the starting bid; or
if the registered applicant makes a bid on a lot other than the starting bid \- at least 1 minimum bid increment more than the applicant's own bid; or
if the registered applicant is already the high bidder on that lot \- at least 2 minimum bid increments above the applicant's high bid as published in the results and information for the previous round.
All of the lots on offer at an auction will be open for bidding in each round of the auction.
(1) Subject to sections 4.17 and 4.18, a registered applicant may bid on any combination of lots.
(2) In particular, an applicant is not restricted to bidding only on the lots that relate to the areas the applicant nominated in the application form.
(3) In a round, an applicant may lodge only 1 file containing the applicant's bidding instructions.
Note An automatic re-bid may be made once only in a round: see section 4.14.
(1) A registered applicant is not entitled to bid in such a way that the total of the lot ratings of the lots on which the applicant is active in any 1 round exceeds the applicant's eligibility at the time of the bid.
Note As to when an applicant is active, see subsection 1.4 (4).
(2) To ensure that an applicant's eligibility is not exceeded, the ACA will process the applicant's bids as follows:
(a) bidding instructions will be processed in order of lot number, starting with the lowest number;
(b) bidding instructions will only be processed so that the total of the lot ratings for those bids does not exceed the applicant's eligibility;
(c) if the lot rating for a bid to be processed would result in the progressive total of lot ratings exceeding the applicant's eligibility- the ACA will not process that bid or any further bids of the applicant and will treat the bid and those further bids as if they had not been made.
Subject to the waiver provisions in section 4.20, a registered applicant must bid in such a way during a round that the total of the lot ratings on the lots on which the applicant is active in that round is equal to or greater than the applicant's activity target for the round.
Note 1 For activity target, see subsection 1.4 (1).
Note 2 A registered applicant who does not bid in the way mentioned in this section is liable to lose eligibility, in accordance with section 4.19.
(1) A registered applicant's eligibility for the next round will be reduced to an amount worked out in accordance with subsection (2), if:
(a) the registered applicant does not meet its activity target; and
(b) the registered applicant does not exercise a waiver in that round.
(2) The amount of a registered applicant's eligibility under subsection 1 for the next round is to be worked out as follows:
(1) During the bidding period of a round, a registered applicant who would otherwise not meet its activity target may exercise a waiver of the effect of section 4.19.
(2) A registered applicant may continue to exercise waivers until the applicant has used all its waivers fixed by the auction manager under section 2.18.
(3) A registered applicant who exercises a waiver does not lose eligibility in that round.
(4) If an auction manager exercises a waiver on an applicant's behalf, the applicant's eligibility for that round is not lost.
(5) The auction manager will exercise a waiver on a registered applicant's behalf unless the registered applicant tells the auction manager, during the bidding process, that the waiver is not to be exercised, if:
(a) a registered applicant bids in such a way that, but for this section, the applicant would not meet its activity target; and
(b) all the waivers fixed by the auction manager for the registered applicant have not been exercised.
(6) A round will not be regarded as the final round if:
(a) there are no bids in a round (and, as a result, the round would be regarded as the final round); and
(b) a registered applicant exercises a waiver in that round.
Note For exercising a waiver, see section 4.8.
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(1) During a round, a registered applicant 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 registered applicant withdraws a bid in a round in accordance with subsection (1) and no other applicant has made a bid on that lot in the round:
(a) the ACA is taken to be the high bidder in that round for the lot, at the next highest bid (whether the next highest bid was published in the results as a high bid or not); and
(b) the ACA will be identified by the bidder identification number 9999; and
(c) 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 ifthere is no other bid, the starting bid for the lot; and
(d) the registered applicant may bid again on that lot in a later round; and
(e) the registered applicant withdrawing the bid may lose eligibility, as set out in section 4.22.
If a registered applicant withdraws a bid in a round, the applicant will not be regarded as being active on that lot and may lose eligibility.
(1) A registered applicant is liable for the withdrawal penalty in subsection (2) if:
(a) the registered applicant withdraws a bid from a previous round on a particular lot; and
(b) the successful bid price on the lot at the close of the auction is less than or equal to the withdrawn bid.
Note A bid cannot be withdrawn unless it is the high bid for the lot: see section 4.21.
(2) For subsection (1), the withdrawal penalty is an amount that is the greater of:
(1) If the ACA considers that a registered applicant's transaction code keys have been compromised and cannot be used to authenticate bidding instructions, the auction manager may suspend the applicant's participation in the auction.
(2) For subsection (1), the auction manager must tell the applicant:
(a) the reason for the suspension; and
(b) the period of suspension (if any).
(I) If, after the start of the auction, the amount of eligibility payment paid by a registered applicant falls below 10% of the total of high bids of the registered applicant recorded in the results of a round, the ACA must tell the applicant by written notice to pay an additional eligibility payment in accordance with subsections (3) and (4).
The ACA must give the notice by fax to a fax number nominated by the registered applicant on its application form.
The amount of additional eligibility payment payable under subsection (1) is equal to the amount of eligibility payment already paid by the applicant.
Note: The amount of eligibility payment is worked out in accordance with section 2.7.
The additional eligibility payment must be paid by the registered applicant to the ACA by 5.00 pm on the third working day after the date of the notice, and in accordance with section 1.9.
A registered applicant who fails to pay the additional eligibility payment in accordance with subsection (4), is excluded from taking any further part in the auction and therefore from obtaining a spectrum licence in the allocation process.
If, at any time during the auction, the amount of eligibility payment and additional eligibility payment paid by a registered applicant falls below 10% of the total of high bids of the registered applicant, the ACA must again tell the applicant by
The entry fee of an applicant who is excluded from obtaining a spectrum licence because the applicant fails to pay an additional eligibility payment (an excluded applicant) is not refundable.
The eligibility payment and additional eligibility payment (if any) of an excluded applicant is refundable.
However, before refunding the eligibility payment and additional eligibility payment (if any) of an excluded applicant, the ACA must deduct any bid withdrawal penalties (see Part 4) from the amount to be refunded.
In working out the bid withdrawal penalties deductable under subsection (3), a high bid of the excluded applicant that was current immediately before the applicant was excluded is taken to be withdrawn.
Note: Because it is not possible to work out any bid withdrawal penalties until the end of the auction, the eligibility payment cannot be refunded until then.
(1) The ACA or the auction manager may suspend or cancel an auction, or a round of an auction, at any time:
(a) if the Minister directs the ACA or the auction manager to do so; or
(b) because of:
an error in, or technical failure of, the auction computer system; or
technical failure of the telecommunications system being used for the auction; or
an event beyond the control of the ACA; or
(c) if the ACA is satisfied that there has been, or is likely to be, a breach of the auction procedures of a kind that could compromise the auction; or
(d) if the auction manager is satisfied that in the circumstances it is appropriate to do so.
(2) If the auction is suspended, the ACA or the auction manager may:
(a) resume the auction from the end of any round which has been completed, and for which the auction manager is satisfied that the results are correct; or
(b) cancel the auction.
Note: the auction manager may give the first round after resumption a higher round number if it is administratively expedient to do so.
(3) If the auction is cancelled:
(a) all eligibility payments and additional eligibility payments (if any) paid by registered applicants will be refunded; and
(b) the entry fee will not be refunded; and
(c) the ACA may allocate the lots:
by another auction; or
by tender; or
5.1 Allocation of licence to highest bidder
The registered applicant who holds the highest bid on a lot when the auction closes (the successful applicant) is entitled to be allocated a licence that includes that lot if the applicant pays the balance of the bid price, worked out under section 5.2, for all lots for which the applicant was the successful bidder, in accordance with section 5.3.
5.2 Calculation of balance of bid price
(1) The balance of the bid price to be paid by a successful applicant is worked out as follows:
(a) the ACA will add up the highest bids made by the successful applicant;
(b) the ACA will add up the value of the bid withdrawal penalties imposed on the applicant under section 4.23;
(c) the ACA will add the total of the highest final bids and the total of the bid withdrawal penalties;
(d) the ACA will deduct the applicant's eligibility payment and additional eligibility payments (if any) from this total.
(2) The amount remaining is the balance of the bid price.
(3) If the applicant's eligibility payment is greater than the total of the highest bids and bid withdrawal penalties:
(a) the ACA will refund the difference; and
(b) the applicant is entitled to be allocated a licence without further payment to the ACA.
5.3 Payment of balance of bid price
(1) The ACA will notify each successful applicant, by receipted mail, of the balance of the bid price.
The ACA will treat the defaulted lots as unsold and offer them for allocation at another time under section 6.1.
(1) If an unsuccessful applicant lodged a performance payment, the ACA must account to the applicant for the application of all monies paid to the ACA under this determination by the applicant.
(2) The ACA must account to an unsuccessful applicant:
(a) for the applicant's eligibility payment and additional eligibility payment (if any) less the amount of any bid withdrawal penalties imposed under section 4.23; and
(b) for money (if any) held by the ACA as a performance payment, less:
6.1 Unsold lots
A lot offered at an auction but unsold may be allocated by the ACA, as the ACA determines:
(a) by another auction; or
(b) by tender; or
(c) by allocation for a pre-determined price or a negotiated price.
Note 1 Unsold lots include defaulted lots: see section 5.5.
Note 2 The ACA may make determinations under section 60 of the Act about allocations other than by auction.
6.2 Liability of ACA
The ACA is not 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.
6.3 Recovery of damages by ACA
This determination is without prejudice to any right of action or remedy which the ACA has or may have against any person which arose or arises under the Deed of Acknowledgment, Deed of Financial Security, statute, common law, equity or otherwise.
6.4 Giving of information by ACA
Before the ACA allocates a licence, it may announce, or publish a notice of:
(a) the name of the person to whom the licence is to be allocated; and
(b) the highest final price bid for the lots included in the licence, or the pre-determined price for the licence, as appropriate.
An original document given to the ACA by a person for the purposes of the allocation system set out in this determination (including a document that contains intellectual property) becomes the property of the ACA.
Note Subsection (1) does not apply to a document that establishes an individual's identity.
The ACA may use information provided by an applicant for the purposes of the ACA.
transmission (including automatic re-bids and withdrawal of bids) and authentication
(sections 4.9, 4.10 and 4.11)
The aim of these procedures is to ensure that information purporting to represent the instructions of a registered applicant during bidding has actually come from that registered applicant.
Each registered applicant will connect with the auction computer system through the ACA's public network interface using a telephone number supplied to registered applicants by the auction manager, or by the internet.
To log on using a telephone connection, the applicant will need to supply a user ID and password.
Once connection is established, the registered applicant will be able to:
download from the auction computer system a file containing auction results from the auction computer system; or
upload to the auction computer system its bid file during a round.
A registered applicant may need to connect a number of times during a round:
to make bidding instructions; or
to obtain results after the bidding period.
The auction schedule will provide information to registered applicants about when to make these connections.
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The ACA will use 'public key' encryption to secure the privacy and integrity of each registered applicant's bid file as it is transmitted to the ACA. Public key encryption also offers scope to provide sophisticated digital authentication procedures for files that are mathematically improbable to compromise.
Note Public key encryption works on the basis of 2 complementary keys (very large numbers). The 2 keys are mathematically related, but in a way that cannot be easily deduced. One key must be kept private, while the other can be made public. A message encrypted with 1 part of the key pair can ONLY be decrypted with the other part.
Public key cryptography is implemented by users freely distributing their public key, so that other people can encrypt messages to them with that key. The message can then only be decrypted using the person's private key which the person alone holds and which the person must protect.
For the auction, the ACA will provide all pairs of encryption keys. Each registered applicant will be given a copy of the ACA's public key and a copy of the applicant's own private key. The ACA will retain a copy of all public and private keys distributed in the auction.
The ACA will store encryption keys under appropriate security arrangements in the auction centre.
The ACA will specify 1024 bit keys.
Each bidding instruction file will be prepared in the form of a database following the Microsoft Access 97 specification. Before transmission, the file will be digitally signed. The signature will then be encrypted with the registered applicant's private encryption key.
Note The digital signature will be calculated by a checksum algorithm that calculates a 128 bit number expressing the whole file. It is so sensitive that the change of a full-stop to a comma will result in a substantially different checksum.
The file itself will then be encrypted using the ACA's public encryption key. The file and the attached signature will then be transmitted to the auction computer system.
For each registered applicant, the ACA will prepare a list of 'one-time' transaction code keys for use by that registered applicant only in authenticating its telephone bids should this be required in an emergency.
Each list will contain a minimum of 100 transaction code keys. No two lists will be the same. No two codes will be the same, except as generated by chance.
Each key will consist of 8 randomly generated letters. The case of the letters will not be significant to their use.
Each key will be used once, in the order in which the keys are listed. The ACA will retain a copy of each list and identify that list as having been issued to the registered applicant.
Registered applicants bidding by telephone must identify themselves, to the ACA operator using the next available transaction code key when asked.
Once a transaction code key is used, the registered applicant will strike through that key on the list and note the round and the date and time that it was used.
When the ACA is contacted by a registered applicant wanting to make bidding instructions, the ACA will authenticate the instructions using the transaction code key by:
looking up the list of keys for that registered applicant; and
comparing the key provided by the registered applicant with the next available key on the list.
If the key matches, the instructions will be regarded as authentic.
Once a transaction code key is used by a registered applicant, the ACA will note the round and the time and date that the key was used.
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
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Summary of Allocation System 5
Part 1 Introduction 7
[Name of determination 7](#_TOC_250040)
[Commencement 7](#_TOC_250039)
[Purpose of determination 7](#_TOC_250038)
[Definitions 7](#_TOC_250037)
[Approval of forms 11](#_TOC_250036)
[Auction manager 11](#_TOC_250035)
[Ways in which the ACA gives information 11](#_TOC_250034)
[Communicating with ACA 11](#_TOC_250033)
Allocation of licence to highest bidder
Calculation of balance of bid price
Payment of balance of bid price
Default by successful applicant
Allocation of defaulted lots
Refunds to unsuccessful applicants
Unsold lots
Liability of ACA
Recovery of damages by ACA
Giving of information by ACA
Information provided by applicant
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Note This summary is intended to give an overview of the allocation system. Readers who want to fully understand how the system works should study the entire determination in detail.
This determination makes provision for the allocation of parts of the spectrum between 26.5 GHz and 27.5 GHz throughout Australia that have been identified as being available for allocation under section 36 of the Radiocommunications Act 1992 (the Act). The ACA proposes to allocate spectrum licences by a simultaneous multiple round auction of spectrum allocation lots that then become the subject of spectrum licences. If applicants' needs in all areas can be met without going to auction, the licences will be offered for a pre-determined price. Details of the overall scheme for allocation and issue of spectrum licences are set out in the relevant Marketing Plan prepared by the ACA under section 39 or 39A of the Act, as applicable.
Each lot covers an area and a frequency band - for details, see the relevant Marketing Plan. Each lot has a lot rating reflecting its relative value, determined by the ACA. People wishing to bid are asked to nominate an aggregate amount of lot ratings for the lots they wish to acquire, and this will be regarded as their "eligibility" in the auction. People wishing to obtain a licence by this process must register, pay an entry fee and make a refundable proportional eligibility payment based on the eligibility they nominate. The eligibility payment is held against payment of bid withdrawal penalties as a means of discouraging applicants from abusing the auction process. An additional eligibility payment may also be required during the course of the auction if the amount of eligibility payment which has already been paid falls below 10 % of the total of high bids of an applicant.
The auction will be conducted electronically. Registered applicants may bid on any number of lots, in any combination, provided that their bidding activity does not exceed their eligibility. Applicants may nominate to be eligible for all lots (within the bidding limits), but they must make the necessary eligibility payment. Applicants interested in specific areas, or particular bands, need only make a sufficient eligibility payment to cover these.
This determination is the Radiocommunications (Spectrum Licence Allocation-27GHz Band) Determination 2000.
This determination commences on 2000.
This determination sets out the procedures for allocating spectrum licences:
(a) by a simultaneous multiple round auction of spectrum allocation lots that then become the subject of spectrum licences; and
(b) for a pre-determined price; and
(c) in the 27 GHz band.
Note For paragraph 1.3 (b), see Part 3.
In this determination, unless the contrary intention appears:
ACN or ARBN means the relevant registration numbers for a company or body under the Corporations Law.
Act means the Radiocommunications Act 1992.
activity target, for a registered applicant during a round in a stage, means the figure obtained by multiplying the amount of the registered applicant's eligibility for that round by the percentage of eligibility fixed by the auction manager for that stage under paragraph 2.18 (b).
additional eligibility payment means an additional payment worked out under section 4.25.
application documents means a completed application form and a completed Deed of Acknowledgment.
The ACA must, by writing, approve the following documents:
an application form;
a Deed of Financial Security that complies with section 2.8;
a Deed of Acknowledgment, that includes a statement to the effect that the applicant agrees, if successful in respect of a lot, to pay the ACA the balance of the bid price for the lot as required by section 5.3.
The ACA may approve more than 1 form of a document.
The ACA must, by writing, appoint a person (the auction manager) to manage an auction.
The ACA may give any information or documents to a person under this determination:
by letter; or
by telephone; or
by fax.
The ACA may make information available to a person:
if the person is using the auction computer system - by making the information available on the system; or
by publishing the information on the internet.
Once an auction has started, a form or notice required to be given to the ACA in relation to the auction must be given by
All payments to the ACA must be made in Australian currency.
Monies due to the ACA for the following purposes must be paid by the date required by this determination and in accordance with this determination:
entry fee;
eligibility payment;
any additional eligibility payment as required by section 4.25;
monies payable under a performance payment;
10% of the balance of the bid price;
the remainder of the balance of the bid price;
the balance of the pre-determined price.
Monies due to the ACA for any of the purposes set out in subsection (2) must be paid:
by bank cheque; or
by bank transfer.
If a payment is required to be made by a specific date, it is sufficient if, by that date, that either:
the applicant gives the ACA a bank cheque for the amount of the payment; or
if paying by bank transfer, the applicant:
does everything necessary to make the payment; and
gives the ACA evidence that the payment has been made.
A payment by bank transfer must be paid into the ACA's bank account, details of which are as follows:
Bank-Reserve Bank of Australia;
Before the ACA publishes a notice inviting applications for an auction, it must set:
(a) the amount of the entry fee; and
(b) the amount of the eligibility payment required for each unit of eligibility nominated by an applicant; and
(c) the financial security amount for the auction.
Before holding an auction, the ACA must publish a notice in a newspaper circulating nationally in Australia:
describing the parts of the spectrum to be auctioned; and
giving a brief description of the way the auction will be conducted; and
inviting people to apply to the ACA to take part in the auction; and
stating the date and time by which applications must be received by the ACA ( the application closing date); and
stating the date and time by which eligibility payments, and performance payments or Deeds of Financial Security, must be lodged with the ACA (the eligibility payment date); and
stating that licences will be auctioned in accordance with this determination; and
stating that further information (the Applicant Information Package) can be obtained from the ACA at the address given in the notice.
If a matter mentioned in the notice changes, the ACA must publish another notice giving details of the change in a newspaper circulating nationally in Australia.
The Applicant Information Package must contain the following information and documents:
if a part of the spectrum to be auctioned was the subject of a notice by the Minister under section 36 of the Act designating a part that has not previously been allocated - the notice;
if a part of the spectrum to be auctioned was the subject of a spectrum re-allocation declaration by the Minister under section 153B of the Act- the declaration;
a guide to the auction process;
the Marketing Plan;
this determination;
the application form, with instructions for completing and lodging the form;
the Deed of Financial Security;
information about the performance payment as an alternative to providing a Deed of Financial Security, if required;
the Deed of Acknowledgment;
the amount of the entry fee for the auction set by the ACA under paragraph 2.1 (a);
the amount of the eligibility payment required for each unit of eligibility nominated by the applicant set by the ACA under paragraph 2.1 (b);
the financial security amount set by the ACA under paragraph 2.l(c);
the application closing date and time for making applications;
the eligibility payment date and time for lodging eligibility payments, and performance payments or Deeds of Financial Security;
the address of the auction centre.
A person who wants to obtain a spectrum licence under this determination must apply to the ACA for registration and pay the entry fee.
The person must give the ACA the following documents (the
application documents):
a completed application form;
a completed Deed of Acknowledgment.
The entry fee must be paid in accordance with section 1.9.
Note: By section 1.9, the entry fee may be paid by bank cheque or bank transfer. If paid by bank transfer, the applicant must give the ACA evidence that the payment has been made. If the payment is not in the ACA's bank account within 5 working days of the application date, the application ceases to have effect.
The application must be lodged with the ACA, at the auction centre, by the advertised time on the advertised application closing date.
As soon as practicable after receiving the application, the ACA must confirm receipt by fax or by letter (if the ACA does not know the applicant's fax number) noting particulars of the applicant's:
name; and
address; and
ACN or ARBN; and
initial eligibility.
(1) An applicant must nominate its initial eligibility in the application form.
(1) An applicant must, by the advertised time on the advertised eligibility payment date:
(a) pay the ACA an eligibility payment, worked out in accordance with section 2.7; and
(b) either:
(i) give the ACA a completed Deed of Financial Security, if required under section 2.8; or
(ii) pay the ACA a performance payment.
(2) The eligibility payment and performance payment must be paid in accordance with section 1.9.
Note: By section 1.9, the eligibility payment and performance payment may be paid by bank cheque or bank transfer. If paid by bank transfer, the applicant must give the ACA evidence that the payment has been made. If the payment is not in the ACA's bank account within 5 working days of the closing date, the application ceases to have effect.
The amount of eligibility payment payable by an applicant is the amount in dollars worked out by multiplying the amount of the applicant's initial eligibility by the amount set by the ACA under paragraph 2.1 (b).
(1) A person who wishes to be registered as an applicant must give the ACA a Deed of Financial Security or performance payment unless:
(a) the applicant satisfies the ACA that it is an authority of the Commonwealth, a State or a Territory; or
(b) the applicant satisfies the ACA that it is a subsidiary, within the meaning of the Corporations Law, of an authority of the Commonwealth, a State or a Territory; or
(c) the ACA decides, under subsection (2), that the applicant need not give the ACA a Deed of Financial Security or performance payment.
(2) If a company (other than a company incorporated outside Australia) satisfies the ACA that it does not carry on business for profit, the ACA:
(a) may decide that the company need not give the ACA a Deed of Financial Security or a performance payment; and
(b) must notify the company in writing of the decision as soon as practicable after making the decision.
(3) Each person giving a Deed of Financial Security is bound by force of this determination to indemnify the ACA according to the terms of the Deed.
(4) The amount secured under the Deed of Financial Security or the performance payment must be at least an amount in dollars calculated as the initial eligibility nominated by the applicant multiplied by the financial security amount set by the ACA under paragraph 2.1(c).
If a Deed of Financial Security is made under a power of attorney for a corporation, the applicant must ensure that a copy of the power of attorney is lodged with the Deed.
(1) This section applies if the ACA is not satisfied that the person giving the Deed is a person who complies with subsection 2.8 (5).
(2) The applicant's registration is of no effect.
(3) The applicant is excluded from taking part (or any further part) in the auction and from obtaining a spectrum licence.
(4) The applicant's eligibility payment is refundable.
(5) The applicant's entry fee is not refundable.
This section applies if an applicant gives the ACA a performance payment instead of a Deed of Financial Security.
Performance payment monies lodged with the ACA may be dealt with in accordance with this determination as security for the timely discharge of the applicant's financial obligations to the ACA under this determination.
This is an opening excerpt, not the complete document.