Radiocommunications (Spectrum Licence Allocation—3.4/3.7 GHz Bands) Determination 2023

Part 1—Preliminary

1 Name

2 Commencement

3 Authority

4 Interpretation

5 References to other instruments

6 Giving documents to the ACMA

7 Statutory declaration for body corporate

8 Signing or executing documents other than deeds and statutory declarations

9 Payments of amounts

10 Giving documents to bidders

Part 2—Allocation of spectrum licences

Division 1—How spectrum licences will be allocated

11 The allocation process

Division 2—General allocation limits

12 Allocation limits

13 Applying allocation limits during bidding—assume all bids successful

14 Disregarding existing authorisations with less than 30% population reach

15 Unused allocation limit

16 Meaning of associate and relevant group of persons

17 Affiliation between applicants or bidders

18 Information relevant to considering whether applicants or bidders are affiliated

Part 3—Arrangements to be made by the ACMA

Division 1—Key settings and deadlines

19 The ACMA must appoint auction manager

20 The ACMA must set application fee

21 The ACMA must set application deadline and eligibility deadline

22 The ACMA must set lot ratings, eligibility point value and certain prices

23 The ACMA must approve forms

24 The ACMA must provide initial auction information to applicants

25 The ACMA may vary prices and lot ratings

Division 2—Advertising the allocation process

26 Notice advertising allocation process

27 Applicant information package

Part 4—Applying to participate

Division 1—Confidentiality

28 Meaning of confidential information

29 Obligation not to disclose confidential information

30 Duration of confidentiality obligation

31 Reporting breach of confidentiality

32 Notice of breach of confidentiality

33 Deeds of confidentiality—related persons and contractors

Division 2—Applying to be registered

34 Applying to be registered as a bidder

35 Application fee not refundable except in certain circumstances

36 Applicants to notify the ACMA if application information incorrect

37 Applicant to make statutory declaration about affiliation

38 Failure to give statutory declaration about affiliation

Division 3—Eligibility points and leftover lots

39 Applying for eligibility points and to be allocated leftover lots

40 Who is eligible to apply for a leftover lot

41 Requirement to secure eligibility points

42 Number of eligibility points secured

43 Consequence of failing to secure eligibility points

Division 4—Dealing with affiliations

44 Procedure if ACMA satisfied applicants are affiliated

45 Dealing with affiliation—new applicant

46 Initial auction information provided to new applicants

Division 5—Dealing with changes to prices or lot ratings

47 Notice about updating application documents

48 Updating eligibility nomination form and financial security

49 Notice inviting additional applicants to the auction

50 Applying to be registered—additional applicants

51 Initial auction information for additional applicants

52 Statutory declarations and affiliations

Division 6—Withdrawal of applications

53 Withdrawal of application

Division 7—Registration of bidders

54 Registration process

55 Register of bidders

56 Bidders to notify the ACMA if register incorrect

Part 5—Allocation procedures

Division 1—Allocation of leftover lots

57 Allocation of leftover lots

Division 2—General procedures for both auctions

58 Auction stages

59 Procedures if only one bidder

60 Auction rules

61 Auction manager’s discretion to accept entries and bids

62 Action that auction manager may take in exceptional circumstances

63 Security of the auctions

64 Advising winning bidders of their auction results

65 Meaning of winning bidder and winning price

Division 3—Dealing with affiliations during the allocation period

66 Affiliation between bidders during allocation period not permitted

67 Requirement to report affiliation

68 Allocation process continues despite possible affiliation

69 Consideration of affiliation

70 Statements about affiliations during an auction

71 Notification of affiliation during allocation period

72 Consequence of affiliation before assignment stage

73 Consequence of affiliation for 3.4 GHz auction—apportionment of unused allocation limit

Division 4—Procedures relating to the 3.7 GHz auction

74 Preparation for bidding

75 Scheduling of auction rounds

76 Pre‑bidding round and first clock round of 3.7 GHz auction

77 Results of the 3.7 GHz auction

Division 5—Procedures relating to the 3.4 GHz auction

78 Recalculation of unused allocation limit

79 Recalculation of eligibility points

80 Updating the register

81 Scheduling of auction rounds

82 Pre‑bidding round and first clock round of 3.4 GHz auction

Division 6—Confirmation of results of allocation process

83 Notice and refunds to withdrawn applicants

84 Notice and refunds to unsuccessful bidders

85 Advising all bidders of results of allocation process

Division 7—Payment and issue of licences

86 Spectrum access charge

87 Balance of the total winning price

88 Sufficient eligibility payment—issue of spectrum licence without further payment

89 Payment of balance of total winning price

90 Issue of spectrum licences after payment of balance

91 Default

92 Publication of allocation results

Part 6—Auction rules

Division 1—Rules for the primary stage

Subdivision A—Application

93 Application of Division

Subdivision B—Arrangements for primary stage

94 Bid increment percentage for primary stage

95 Eligibility requirement percentage for primary stage

96 Scheduling of clock rounds

97 Recess days

98 Entries by auction manager before pre‑bidding round

99 Information available for clock rounds of the primary stage

Subdivision C—Bidding in the primary stage

100 Availability of lots in clock rounds of the primary stage

101 Pre‑bidding round

102 Making bids

103 Validity of bids

104 Eligibility points

105 Loss of eligibility points for inactivity

Subdivision D—Processing of bids

106 Processing of bids

107 Processing algorithm

108 Applying an increase bid

109 Applying a decrease bid

Subdivision E—Bringing the primary stage to an end

110 End of clock rounds

111 Allocation of lots to primary winners

112 Determination of primary prices

113 Results of the primary stage

114 End of the primary stage

Division 2—Rules for the secondary stage

115 Application of Division

Subdivision B—Arrangements for secondary stage

116 Bid increment percentage for secondary stage

117 Scheduling of rounds

118 Recess days

119 Entries by auction manager before pre‑bidding round

120 Information available during rounds of the secondary stage

Subdivision C—Bidding in the secondary stage

121 Availability of lots in rounds of the secondary stage

122 Availability of lots to particular bidders

123 Exclusion from further participation

124 Pre‑bidding round

125 Making bids

126 Validity of bids

127 Carry forward of certain continue bids

Subdivision D—Bringing the secondary stage to an end

128 Conclusion of bidding on a lot

129 End of rounds of the secondary stage

130 Allocation of lots to secondary winners

131 Determination of secondary prices

132 Results of the secondary stage

133 End of the secondary stage

Division 3—Rules for the assignment stage

134 Application of Division

Subdivision B—Arrangements for assignment stage

135 Determination of frequency range options

136 Auction manager must make frequency range options available

137 Scheduling of products and rounds

Subdivision C—Bidding in the assignment stage

138 Availability of a product for bidding in rounds of the assignment stage

139 Making bids

140 Validity of assignment bids

141 Deemed zero dollar bids

142 Assignment rounds in which bidding is not required

Subdivision D—Bringing the assignment stage to an end

143 Determination of winning assignment bids for an assignment round

144 Determination of assignment price for an assignment round

145 3.4 GHz auction—allocation of leftover lots to assignment winners

146 Assignment of frequency

147 Determination of total assignment price

148 Results of the assignment stage

149 End of the assignment stage

Part 7—Miscellaneous

150 Unallocated spectrum

151 Applicants and bidders must not misuse auction system

152 The ACMA may obtain information from applicants and bidders

153 Use of information and documents by the ACMA

154 The ACMA to provide information to ACCC on request

155 Retention of eligibility payment or enforcement of deed of financial security for breach of auction procedures

156 Effect of retention on winning bidders

157 Application to Federal Court for return of retained amount

158 No liability of the ACMA, etc

159 Other rights not affected

160 Auction manager may delegate functions and powers

Part 1—Preliminary

1  Name

  This instrument is the Radiocommunications (Spectrum Licence Allocation—3.4/3.7 GHz Bands) Determination 2023.

2  Commencement

 (1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

• Commencement information
• Column 1 Column 2 Column 3
• Provisions Commencement Date/Details
• 1. The whole of this instrument The day after this instrument is registered. 27 June 2023

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

 (2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

  This instrument is made under sections 60 and 294 of the Radiocommunications Act 1992.

Note 1: To the extent this instrument is made under subsection 60(1) of the Act, it is not disallowable under section 42 of the Legislation Act 2003 (see paragraph 44(2)(b) of the Legislation Act 2003 and item 29 in the table set out in regulation 10 of the Legislation (Exemptions and Other Matters) Regulation 2015). To the extent that this instrument is made under subsection 294(1) of the Act, it is disallowable.

Note 2: The following provisions of this instrument are made under subsection 294(1) of the Act, and all other provisions are made under subsection 60(1) of the Act:

(a) section 9;

(b) paragraphs 22(c) and (d);

(c) paragraphs 25(1)(a) and (c);

(d) section 65;

(e) subsection 72(8);

(f) Division 7 of Part 5;

(g) section 112;

(h) section 131;

(i) sections 143, 144 and 147.

4  Interpretation

Note 1: A number of expressions used in this instrument are defined in the Act, including the following:

(a) ACCC;

(b) ACMA;

(c) frequency band;

(d) licence;

(e) radiocommunications device;

(f) spectrum;

(g) spectrum licence.

Note 2: In this instrument, register has a different meaning to that given to Register by section 5 of the Act.

 (1) In this instrument:

3.4/3.7 GHz bands means the following parts of the spectrum:

 (a) the 3.4 GHz band;

 (b) the 3.7 GHz band.

3.4 GHz auction: see paragraph 11(1)(c).

3.4 GHz band means the part of the spectrum from 3400 MHz to 3575 MHz.

3.4 GHz product has the same meaning as in the marketing plan.

3.7 GHz auction: see paragraph 11(1)(b).

3.7 GHz band means the part of the spectrum from 3700 MHz to 3800 MHz.

3.7 GHz product has the same meaning as in the marketing plan.

ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

ACMA Act means the Australian Communications and Media Authority Act 2005.

ACMA staff has the meaning given by section 3 of the ACMA Act.

ACN has the meaning given by section 9 of the Corporations Act 2001.

Act means the Radiocommunications Act 1992.

affiliated: see section 17.

aggregate existing MHz: see subsection 14(5).

allocation limits: see section 12.

allocation period: see subsection 11(3).

allocation process: see subsection 11(2).

applicant means a person who has applied to become registered as a bidder.

Note: A person may apply under section 34, 45 or 50.

applicant information package: see subsection 27(1).

application deadline: see subsection 21(1).

application fee: see section 20.

application form: see paragraph 23(1)(a).

ARBN has the meaning given by section 9 of the Corporations Act 2001.

area, in relation to a product, means the geographic area of the region for the product.

Note: The regions for the products are set out in the marketing plan.

assignment bid: see subsection 140(2).

assignment bidder: see subsection 139(2).

assignment price: see section 144.

assignment round means a round in the assignment stage for determining the assignment of frequency ranges to the lots of each product that were allocated to a bidder in the primary stage or secondary stage.

assignment stage means the part of an auction:

 (a) commencing at the start of the first assignment round of the auction; and

 (b) ending immediately after the auction manager provides the results for every assignment round in accordance with section 148.

assignment winner: see subsection 143(4).

associate: see subsection 16(1).

associates form: see paragraph 23(1)(b).

auction means the 3.7 GHz auction or the 3.4 GHz auction.

auction manager: see section 19.

auction system means the system the ACMA makes available to bidders to participate in an auction.

authorised area: see subsection 14(6).

balance of the total winning price: see section 87.

bidder means a person registered by the ACMA as a bidder under section 54.

bid increment percentage:

 (a) in relation to the primary stage of an auction—see section 94; or

 (b) in relation to the secondary stage of an auction—see section 116.

clock price, for a lot of a product for a clock round, means the sum of the following, rounded up to the nearest hundred:

 (a) the opening price for the lots of the product;

 (b) the bid increment percentage for the lots of the product multiplied by that opening price.

clock round means a round for bids in the primary stage of an auction.

confidential information: see section 28.

continue bid: see subsection 126(2).

decrease bid has the meaning given by subsection 103(7).

Note: If a bidder with a start demand for the lots of a product for a clock round does not make a valid bid for the clock round, the bidder will be taken to have requested a decrease bid: see paragraph 103(8)(b).

deed of acknowledgement means a deed of acknowledgement form that has been completed and executed by an applicant as a deed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument or with the requirements for executing a deed.

deed of acknowledgement form: see paragraph 23(1)(c).

deed of confidentiality means a deed of confidentiality form that has been completed and executed as a deed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument or with the requirements for executing a deed.

deed of confidentiality form: see paragraph 23(1)(e).

deed of financial security means a deed of financial security form that has been completed and executed as a deed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument or with the requirements for executing a deed.

deed of financial security form: see paragraph 23(1)(d).

demand change has the meaning given by subsection 107(5).

eligibility deadline: see subsection 21(2).

eligibility nomination form: see paragraph 23(1)(f).

eligibility payment: see subsection 41(2).

eligibility points for a bidder at a time: see section 104.

eligibility requirement percentage: see subsection 95(1).

entry, during a pre‑bidding round, means an entry in the auction system made by a bidder under subsection 101(1) or 124(1).

exceed, in relation to an allocation limit, has the meaning given by subsection 12(2).

excess demand: see subsection 107(7).

exit bid: see subsection 126(3).

extended eligibility deadline: see paragraph 25(2)(b).

final clock round: see section 110.

final high bid: see subsection 128(3).

final round, for a lot: see subsection 128(1).

increase bid has the meaning given by subsection 103(5).

last round of the secondary stage: see subsection 129(2).

leftover lot has the same meaning as in the marketing plan.

list of frequency range options includes a set of frequency range options.

lot has the same meaning as in the marketing plan.

lot bandwidth has the same meaning as in the marketing plan.

lot rating for a lot of a product means the lot rating set by the ACMA under paragraph 22(a), as varied (if applicable) under paragraph 25(1)(b).

maintain bid has the meaning given by subsection 103(3).

marketing plan means the Radiocommunications Spectrum Marketing Plan (3.4/3.7 GHz Bands) 2023.

metropolitan product has the same meaning as in the marketing plan.

new application deadline: see paragraph 25(2)(a).

opening price, for a lot of a product for a clock round, means:

 (a) for the first clock round—the starting price for a lot of the product; or

 (b) for any clock round other than the first clock round—the posted price for a lot of the product for the previous clock round.

Note: For starting prices, see paragraph 22(d) or 25(1)(a).

overlap area: see subsection 14(7).

posted demand, for a bidder for lots of a product for a clock round, has the meaning given by subsection 107(6).

posted price, for a lot of a product for a clock round, has the meaning given by subsection 107(8).

pre‑bidding round, for the primary stage or the secondary stage of an auction, means a round described in paragraph 58(2)(a) (for the primary stage) or 58(3)(a) (for the secondary stage).

Note: See also section 76 for the scheduling of the pre‑bidding round of the primary stage and section 117 for the scheduling of the pre‑bidding round of the secondary stage.

primary price: see section 112.

primary stage means the part of an auction:

 (a) commencing at the start of the pre‑bidding round set for the primary stage of the auction under paragraph 76(1)(b) or 82(1)(b); and

 (b) ending immediately after the auction manager provides the results for the final clock round in accordance with sections 113 and 114.

primary winner: see subsection 110(3).

processing algorithm: see section 107.

product has the same meaning as in the marketing plan.

pseudorandom means using computer‑generated numbers that satisfy a statistical test for randomness, but are not generated by a truly random physical process.

re‑allocation declaration means the Radiocommunications (Spectrum Re‑allocation—3.4 GHz and 3.7 GHz Bands) Declaration 2022.

regional product has the same meaning as in the marketing plan.

register means the register of bidders maintained by the ACMA under section 55.

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.

relevant group of persons: see subsections 16(3) and (4).

relevant spectrum means the part of the spectrum from 3400 MHz to 3800 MHz.

residual lot: see subsection 115(2).

residual price: see subsection 131(2).

round, for the secondary stage of an auction, means a round for bids in the secondary stage of the auction.

secondary price: see subsection 131(1).

secondary stage means the part of an auction:

 (a) commencing with the start of the pre‑bidding round set for the secondary stage of the auction under section 117; and

 (b) ending immediately after the auction manager provides the results for the final round of the secondary stage in accordance with sections 132 and 133.

secondary winner: see subsection 128(2).

set price, for a leftover lot, means the price set by the ACMA under paragraph 22(c), as varied (if applicable) under paragraph 25(1)(c).

specified price: see subsection 126(4).

start demand, for a bidder for lots of a product for a clock round:

 (a) for the first clock round—has the meaning given by subsection 101(3); and

 (b) for a clock round other than the first clock round—means the posted demand of the bidder for the lots of the product for the previous clock round.

starting price for a lot of a product means the price set by the ACMA under paragraph 22(d), as varied (if applicable) under paragraph 25(1)(a).

supply, for lots of a product before the first clock round or for a clock round of the primary stage of an auction, means the number of lots of the product that are available in the primary stage of the auction.

total assignment price: see section 147.

unused allocation limit has the meaning given by section 15.

updated eligibility nomination form: see paragraph 25(2)(c).

winning bidder: see subsection 65(1).

winning price: see subsection 65(2).

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.

 (2) In this instrument, a reference to a part of the spectrum, a frequency band or a frequency range includes all frequencies that are greater than but not including the lower frequency, up to and including the higher frequency.

Note: This means the lower number in the reference to a part of the spectrum, a frequency band or a frequency range is not included in the part of the spectrum, the frequency band or the frequency range.

 (3) In this instrument, a reference to time is a reference to the legal time in Victoria.

5  References to other instruments

  In this instrument:

 (a) a reference to any other legislative instrument is a reference to that other legislative instrument as in force from time to time; and

 (b) a reference to any other kind of instrument or writing is a reference to that other instrument or writing as in force or existing 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 Legislation Act 2003 for the application of the Acts Interpretation Act 1901 to legislative instruments.

Note 2: All Commonwealth Acts and legislative instruments are registered on the Federal Register of Legislation.

Note 3: See section 314A of the Act.

6  Giving documents to the ACMA

 (1) A document may be given to the ACMA under this instrument by:

 (a) delivering the document to the physical address specified in the applicant information package; or

 (b) emailing the document as an attachment, in accordance with subsection (2), to the email address specified in the applicant information package; or

 (c) if the document is an application form—transmitting the document to the ACMA in an electronic format using a webform administered by the ACMA; or

 (d) uploading the document to an online database administered by the ACMA, in accordance with subsection (2), but only if:

 (i) the document is not an application form; and

 (ii) the document is being given by an applicant who gave the application form to the ACMA in the manner mentioned in paragraph (c).

Note: Subsection 41(4) has additional requirements for a deed of financial security given by email or uploaded.

 (2) If a document is emailed or uploaded the document must be:

 (a) if the document is a statutory declaration, statement under section 70 or deed—in a PDF format or another format approved by the auction manager; or

 (b) for any other document—in a Word or PDF format, or another format approved by the auction manager.

 (3) The auction manager may approve a format for documents for the purposes of either or both paragraphs (2)(a) and (b).

 (4) A deed of financial security may be given to the ACMA under this instrument as one or more deeds of financial security.

 (5) If more than one deed of financial security is given to the ACMA for the purposes of a single applicant or bidder, each such deed of financial security must be given a unique identifier.

 (6) If a deed of financial security is given to the ACMA under this instrument, it is given to the ACMA on behalf of the Commonwealth.

7  Statutory declaration for body corporate

  If this instrument requires a body corporate to make a statutory declaration, the statutory declaration must be made by a director or secretary of the body corporate.

8  Signing or executing documents other than deeds and statutory declarations

 (1) A document that is required or permitted to be given to the ACMA or the auction manager under this instrument may be signed or executed electronically if:

 (a) the document must be signed or executed; and

 (b) the document is not a statutory declaration or a deed.

 (2) If:

 (a) this instrument permits or requires a person to give the ACMA or the auction manager a document; and

 (b) the document is not a statutory declaration or a deed; and

 (c) the document must be signed or executed; and

 (d) the signature or execution must be witnessed;

  then the signature or execution may be witnessed by audio‑visual link, if the person witnessing the signature or execution (the witness):

 (e) observes the person signing or executing the document (the signatory) doing so in real time; and

 (f) confirms the signature or execution was witnessed by signing the document or a copy of the document; and

 (g) is reasonably satisfied that the document the witness signs is the same document, or a copy of the document, signed or executed by the signatory; and

 (h) endorses the document, or the copy of the document, with a statement specifying the method used to witness the signature or execution of the signatory.

Note: Other Commonwealth legislation, and State and Territory legislation, may allow for deeds or statutory declarations to be signed or executed electronically, or for the signature or execution of deeds or statutory declarations to be witnessed by audio‑visual link or by other means.

9  Payments of amounts

 (1) Except where otherwise specified, this section applies to all amounts paid, or to be paid, to the ACMA under this instrument.

 (2) The amount must be paid in Australian currency.

 (3) The amount must be paid by bank cheque or electronic transfer.

 (4) An amount that is paid by electronic transfer must be paid by any of the following methods:

 (a) direct transfer into the bank account that has the following details:

 (i) Bank—ANZ Bank;

 (ii) Branch—Belconnen;

 (iii) BSB number—012‑951;

 (iv) Account number—8379 24272;

 (v) Account name—ACMA Official Administered Receipts;

 (b) by BPAY payment, using the electronic payment scheme called BPAY, operated in cooperation between Australian financial institutions, which enables a person to make a payment as a participant in BPAY, either via telephone or internet access, but only if:

 (i) the amount is an application fee and the application form was transmitted using a webform (see paragraph 6(1)(c)); or

 (ii) the amount is an eligibility payment and the eligibility nomination form or updated eligibility nomination form was uploaded to an online database (see paragraph 6(1)(d)); or

 (iii) the amount is a winning bidder’s balance of the total winning price and, under Division 7 of Part 5, the winning bidder has been notified by the ACMA of the bidder’s balance of the total winning price;

 (c) credit card payment into the bank account with the details set out in paragraph (a), but only if:

 (i) the amount is an application fee and the application form was transmitted using a webform (see paragraph 6(1)(c)); or

 (ii) the amount is an eligibility payment and the eligibility nomination form or updated eligibility nomination form was uploaded to an online database (see paragraph 6(1)(d)); or

 (iii) the amount is a winning bidder’s balance of the total winning price and, under Division 7 of Part 5, the winning bidder has been notified by the ACMA of the bidder’s balance of the total winning price.

 (5) An amount is taken to have been paid by a deadline specified in this instrument if:

 (a) the ACMA receives a bank cheque for that 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.

 (6) An amount due under this instrument 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.

 (7) If an amount payable under this instrument is an amount of dollars and cents, the amount is to be rounded up to the nearest whole dollar.

 (8) If an amount is paid, or is to be paid, to the ACMA under this instrument, it is paid, or it is to be paid, to the ACMA on behalf of the Commonwealth.

 (9) If an amount is paid, or is to be paid, by the ACMA under this instrument, it is paid, or it is to be paid, by the ACMA on behalf of the Commonwealth.

Note: This section also applies to spectrum access charges payable under section 294 of the Act. As such, this section relates to Division 7 of Part 5 of this instrument and is disallowable under section 42 of the Legislation Act 2003.

10  Giving documents to bidders

 (1) If a provision in this instrument requires, authorises or permits the auction manager to give information to a bidder, or to notify a bidder of a matter, whether or not in writing, the auction manager may give the information to the bidder, or notify the bidder of the matter, by using the auction system.

 (2) Subsection (1) does not limit any provision of this instrument, and the auction manager is not obliged to give information to a bidder, or notify a bidder of a matter, by using the auction system.

Part 2—Allocation of spectrum licences

Division 1—How spectrum licences will be allocated

11  The allocation process

 (1) The procedure for the allocation of spectrum licences in the 3.4/3.7 GHz bands is:

 (a) a direct allocation of leftover lots (see Division 1 of Part 5); and

 (b) an auction (the 3.7 GHz auction) of the lots of the 3.7 GHz products; and

 (c) an auction (the 3.4 GHz auction) of the lots of the 3.4 GHz products; and

 (d) as part of the assignment stage of the 3.4 GHz auction, an allocation of any leftover lots that were not directly allocated under Division 1 of Part 5.

 (2) The allocation process is the process comprising the steps set out in subsection (1).

 (3) The allocation period is the period:

 (a) commencing on the eligibility deadline; and

 (b) ending immediately after the auction manager provides the results for the allocation process in accordance with section 85.

Division 2—General allocation limits

12  Allocation limits

 (1) The allocation of spectrum licences under this instrument must not result in a person exceeding the allocation limit for the area of a metropolitan product or regional product.

 (2) A person exceeds the allocation limit for the area of a metropolitan product or regional product if:

 (a) the person is allocated a lot or lots of the product under this instrument; and

 (b) having regard to subsection (4), the person, or the relevant group of persons that includes the person, is authorised to use, in aggregate, more of the relevant spectrum in all or part of the area of the product than the allocation limit for the area.

Note: Some existing authorisations are disregarded: see subsection (5) of this section, subsection 13(2) and section 14.

Meaning of allocation limit

 (3) The allocation limit is:

 (a) for the area of a metropolitan product—140 MHz of spectrum; and

 (b) for the area of a regional product—160 MHz of spectrum.

Authorisations that are relevant

 (4) In determining for the purposes of this section how much relevant spectrum a person is authorised to use in an area at a time, take into account:

 (a) if the time is before the end of the 3.7 GHz auction—authorisations to operate radiocommunications devices in a specified part of the relevant spectrum in the area, where those authorisations are in spectrum licences that exist at the time; and

 (b) if the time is after the end of the 3.7 GHz auction:

 (i) authorisations to operate radiocommunications devices in a specified part of the relevant spectrum in the area, where those authorisations are in spectrum licences that exist at the time; and

 (ii) authorisations in spectrum licences to be issued to persons to operate radiocommunications devices specifying the lot bandwidth (expressed in MHz) and area of any lots allocated to those persons in the primary stage or secondary stage (if any) of the 3.7 GHz auction.

Note: For additional rules about determining how bids affect the allocation limit, see section 13.

Authorisations that are not relevant

 (5) For the purposes of this section, do not take into account:

 (a) authorisations under subsection 68(1) of the Act (about third party use);

 (b) apparatus licences and class licences.

13  Applying allocation limits during bidding—assume all bids successful

 (1) In applying section 12 at a time during an auction to determine whether a bid, or a number of lots entered in the auction system during the pre‑bidding round of the primary stage of the auction, would result in a person exceeding the allocation limit in an area, assume that each bidder will be allocated the lots described in column 2 of the item of the following table applicable to that time in the auction (and, as a result, will become authorised by spectrum licences to use the lot bandwidth (expressed in MHz) and area of those lots).

| Item | Column 1 Time in auction | Column 2 Assume that the bidder will be issued a spectrum licence for the lot bandwidth (expressed in MHz) and area of the following lots: | | 1 | the pre‑bidding round of the primary stage of the 3.7 GHz auction | all lots the bidder enters in the auction system under paragraph 101(1)(a) | | 2 | a clock round in the primary stage of the 3.7 GHz auction | all lots the bidder bids for in the clock round | | 3 | a round in the secondary stage (if any), of the 3.7 GHz auction | (a) all lots the bidder bids for in the round; and<br>(b) all lots allocated to the bidder in the primary stage of the auction | | 4 | the pre‑bidding round of the primary stage of the 3.4 GHz auction | all lots the bidder enters in the auction system under paragraph 101(1)(a) | | 5 | a clock round in the primary stage of the 3.4 GHz auction | all lots the bidder bids for in the clock round (other than a lot of the product known as Regional WA Central Middle (see item 34 of Schedule 2 to the marketing plan)) | | 6 | a round in the secondary stage (if any), of the 3.4 GHz auction | (a) all lots the bidder bids for in the round (other than a lot of the product known as Regional WA Central Middle (see item 34 of Schedule 2 to the marketing plan)); and<br>(b) all lots allocated to the bidder in the primary stage of the auction (other than a lot of the product known as Regional WA Central Middle) |

Note 1: Lots allocated in the primary stage or secondary stage (if any) of the 3.7 GHz auction are taken into account after the end of the 3.7 GHz auction by subparagraph 12(4)(b)(ii).

Note 2: The effect of this section is modified during the processing of bids: see subsection 108(3).

 (2) To avoid doubt, leftover lots are disregarded in applying subsection (1).

14  Disregarding existing authorisations with less than 30% population reach

Scope

 (1) This section:

 (a) applies in relation to authorisations that are taken into account under subsection 12(4) in applying the allocation limits; and

 (b) does not apply during an auction in relation to authorisations that section 13 assumes will be issued to bidders.

Note: If applying this section after the end of the 3.7 GHz auction, authorisations to be issued in relation to lots allocated in the 3.7 GHz auction may be disregarded in relation to an overlap area for a person and a 3.4 GHz product.

Main rule

 (2) For the purposes of applying section 12 (allocation limits) in relation to the area of a particular metropolitan or regional product, if:

 (a) an authorisation in a spectrum licence issued, or to be issued, to a person to operate radiocommunications devices in a part of the relevant spectrum specifies an area that is, or includes, an overlap area (see subsections (6) and (7)) for the person and area of the product; and

 (b) the overlap area is below the significance threshold for the person and area of the product;

then the authorisation is to be disregarded in determining the amount of relevant spectrum the person is authorised to use in that overlap area.

Significance threshold

 (3) An overlap area (the test area) is below the significance threshold for the person and the area of a product if:

 (a) where the test area is the only overlap area for the person and the area of the product—the population of the test area is less than 30% of the population of the area of the product; or

 (b) where there is at least one other overlap area for the person and the area of the product—the sum of the following is less than 30% of the population of the area of the product:

 (i) the population of the test area;

 (ii) the population of each other overlap area for the person and the area of the product in which the person’s aggregate existing MHz (see subsection (5)) equals or exceeds the person’s aggregate existing MHz in the test area.

 (4) The total population of a geographic area is to be determined in accordance with the most recent data in the HCIS—List of Population Data document published by the ACMA on its website, as that document existed at the time this instrument commences.

Note 1: The HCIS—List of Population Data document may be accessed, free of charge, from the ACMA’s website at www.acma.gov.au.

Note 2: An area may be described by reference to identifiers referred to in the marketing plan.

Meaning of aggregate existing MHz

 (5) The aggregate existing MHz for a person in an area at a time is the aggregate of the amount of relevant spectrum (expressed in MHz) that may be used by the person, or by another person in the same relevant group of persons as the person, in the area:

 (a) taking into account authorisations mentioned in subsection 12(4), as at the time; and

 (b) not taking into account authorisations or licences mentioned in subsection 12(5); and

 (c) disregarding the operation of this section.

Meaning of authorised area

 (6) If:

 (a) an authorisation to operate radiocommunications devices in a specified part of the relevant spectrum in a specified area is issued to a person; and

 (b) all or part of the specified area falls within the area of a particular metropolitan or regional product;

then so much of the specified area as falls within the area of the product is an authorised area for the person, and for each other person in the same relevant group of persons as the person, for the area of the product.

Meaning of overlap area

 (7) If there is at least one authorised area for a person and the area of a product (the product area), then the product area comprises 1 or more overlap areas, which are determined by identifying the contiguous area, or combination of contiguous areas, within the product area that achieves the result that each such area meets all of the following requirements:

 (a) it falls wholly within an authorised area for the person and the product area;

 (b) it does not cover the boundary of any authorised area for the person and the product area;

 (c) it does not overlap with any other identified area;

 (d) it is no smaller than necessary to ensure all identified areas comply with paragraphs (a) to (c).

15  Unused allocation limit

 (1) The unused allocation limit for a person for a metropolitan product or regional product for an auction is the allocation limit for the area of the product, reduced (but not below zero) by the highest amount of spectrum (expressed in MHz) calculated under subsection (2) for the person for the area of the product, or any part of that area, for the auction.

Note: The unused allocation limit is entered on the register of bidders (see section 55) and in the auction system (see section 98). A bid is invalid if it exceeds the unused allocation limit (see paragraph 103(4)(c)).

 (2) The amount of spectrum (expressed in MHz) for a person for an area (which may be all or part of the area of the product) for an auction is the aggregate existing MHz for the person for the area, calculated:

 (a) immediately before the start of the pre‑bidding round of the primary stage of the auction; and

 (b) disregarding any authorisations that are disregarded by section 14 and any authorisations not taken into account under subsection 12(5).

3.4 GHz auction—apportionment of unused allocation limit where bidders are affiliated

 (3) If section 73 (about affiliations that affect the unused allocation limit for the 3.4 GHz auction) applies to 2 or more persons, the unused allocation limit for a metropolitan product or regional product for each of those bidders for the 3.4 GHz auction is calculated by:

 (a) starting with the limit calculated for those bidders under subsection (1) of this section for the product and the auction; and

 (b) apportioning that limit between the affiliated bidders in the manner determined under section 73.

16  Meaning of associate and relevant group of persons

 (1) Each of the following is an associate in relation to a person:

 (a) in relation to a body corporate:

 (i) a director or secretary of the body;

 (ii) a related body corporate;

 (iii) a director or secretary of a related body corporate;

 (iv) an individual who controls at least 15% of the voting power or holds at least 15% of the issued shares in the body;

 (b) in relation to an individual:

 (i) the individual’s spouse;

 (ii) the individual’s de facto partner within the meaning of the Acts Interpretation Act 1901;

 (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;

 (iv) where the individual is a director or secretary of a body corporate—the body corporate and any related body corporate;

 (c) 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:

 (i) 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;

 (ii) relates to the acquisition of a spectrum licence for a part of the spectrum referred to in the re‑allocation declaration.

 (2) For the purposes of paragraph (1)(c), 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;

but does not include:

 (d) 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; or

 (e) an agreement that, to the extent it deals with a part of the spectrum referred to in the re‑allocation declaration, deals only with spectrum associated with left‑over lots.

 (3) In this instrument, relevant group of persons means:

 (a) a person and all associates of that person; or

 (b) 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 (3)(b), 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:

 (a) 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 group;

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

 (i) is not a member of any of the groups; and

 (ii) carries on a business for the provision of professional services, including company secretarial services; and

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

 (c) the individual is not, other than by reason of providing the company secretarial services, an associate of any of the relevant persons;

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

 (5) In this section:

carrier has the same meaning as in the Telecommunications Act 1997.

public mobile telecommunications service has the same meaning as in the Telecommunications Act 1997.

roaming services agreement means an agreement between 2 or more carriers for the principal purpose of enabling the supply of public mobile telecommunications services by one of those other carriers, in geographic locations where another of those carrier’s public mobile telecommunications services are not available.

17  Affiliation between applicants or bidders

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

Note: Paragraph 16(3)(b) and this section mean that 2 applicants or bidders are affiliated if they have an associate in common. However, see subsection 16(4).

18  Information relevant to considering whether applicants or bidders are affiliated

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

 (a) completed application forms;

 (b) updated application forms;

 (c) statutory declarations and statements given in accordance with this instrument.

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

Part 3—Arrangements to be made by the ACMA

Division 1—Key settings and deadlines

19  The ACMA must appoint auction manager

 (1) The ACMA must, in writing, appoint a person (the auction manager) to manage the allocation process.

 (2) The person appointed as the auction manager must be:

 (a) a member within the meaning of the ACMA Act; or

 (b) a member of the ACMA staff; or

 (c) a person whose services are made available for the purposes of the ACMA under paragraph 55(1)(a) of the ACMA Act.

20  The ACMA must set application fee

  Before it publishes a notice under subsection 26(1), the ACMA must, in writing, set a fee (application fee) to be paid by applicants.

Note: Section 35 is about when the application fee is refundable.

21  The ACMA must set application deadline and eligibility deadline

 (1) Before it publishes a notice under subsection 26(1), the ACMA must, in writing, set a date and time (application deadline) before which:

 (a) completed application forms, completed associates forms, completed deeds of acknowledgement and completed deeds of confidentiality by applicants must be received by the ACMA; and

 (b) the application fee must be paid to the ACMA.

 (2) Before it publishes a notice under subsection 26(1), the ACMA must, in writing, set a date and time (eligibility deadline) before which:

 (a) completed eligibility nomination forms must be received by the ACMA; and

 (b) eligibility payments must be made to the ACMA, or deeds of financial security must be given to the ACMA, or a combination of both.

22  The ACMA must set lot ratings, eligibility point value and certain prices

  The ACMA must set the following:

 (a) a rating (expressed as a number of eligibility points) (the lot rating) that represents an estimate of the value of each lot of a product in the allocation process;

 (b) the dollar value of each eligibility point for the allocation process;

 (c) the set price for each leftover lot;

 (d) the price for a lot of each product for the first clock round (the starting price).

Note: Paragraphs (c) and (d) relate to Division 7 of Part 5 of this instrument for the purposes of section 294 of the Act, and are disallowable under section 42 of the Legislation Act 2003.

23  The ACMA must approve forms

 (1) After setting the amounts in section 22, the ACMA must approve the following forms:

 (a) a form (application form) for applying to participate in the allocation process;

 (b) a form (an associates form) for applicants to set out information about their associates;

 (c) a form (deed of acknowledgement form) that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument;

 (d) a form (deed of financial security form) for securing an applicant’s eligibility points;

 (e) a form (deed of confidentiality form) that includes a statement to the effect that the person giving the deed agrees not to disclose confidential information before section 29 ceases to apply to the person;

 (f) a form (an eligibility nomination form) for applying for eligibility points and to be allocated leftover lots;

 (g) one or more forms for the purposes of section 37, subsection 45(5) and sections 52 and 70 (which are about statutory declarations and statements).

Note: A form approved under this subsection may contain other material in addition to that expressly required by this subsection.

Requirements for eligibility nomination form

 (2) A form approved for the purposes of paragraph (1)(f) or 25(2)(c) must include:

 (a) a guide to securing eligibility points; and

 (b) a guide to applying to be directly allocated a leftover lot.

24  The ACMA must provide initial auction information to applicants

  As soon as practicable after the application deadline, the ACMA must give each applicant the following:

 (b) information about making entries in the auction system during the pre‑bidding round for the primary stage and secondary stage;

 (c) information about making bids in the auction system during the primary stage, secondary stage and assignment stage.

25  The ACMA may vary prices and lot ratings

Varying starting prices, lot ratings and set prices

 (1) Not less than 5 working days before the eligibility deadline, the ACMA may do one or more of the following:

 (a) vary a starting price set under paragraph 22(d);

 (b) if a starting price is varied, vary a lot rating set under paragraph 22(a);

 (c) vary a set price for a leftover lot set under paragraph 22(c).

Note 1: Varying a starting price or a set price relates to Division 7 of Part 5 of this instrument for the purposes of section 294 of the Act. Accordingly, paragraphs (1)(a) and (c) are disallowable under section 42 of the Legislation Act 2003.

Note 2: See Division 5 of Part 4 for the rules about updating application documents and inviting new applications if the ACMA exercises this power.

 (2) If the ACMA exercises a power under subsection (1), the ACMA must:

 (a) set a time and date to replace the application deadline (new application deadline); and

 (b) set a time and date to replace the eligibility deadline (extended eligibility deadline); and

 (c) approve a form (an updated eligibility nomination form) for applying for eligibility points and to be allocated leftover lots.

 (3) The new application deadline must be at least 20 working days after the day the ACMA exercised the power.

 (4) The extended eligibility deadline must be at least 30 working days after the new application deadline.

 (5) The updated eligibility nomination form must comply with subsection 23(2).

 (6) As soon as practicable after exercising a power under subsection (1), the ACMA must publish on its website a notice setting out the following:

 (a) if a starting price was varied—the details of the variation of the starting price;

 (b) if a lot rating was varied—the details of the variation of the lot rating;

 (c) if the set price for a leftover lot was varied—the details of the variation of the set price;

 (d) the date and time of the new application deadline;

 (e) the date and time of the extended eligibility deadline.

Division 2—Advertising the allocation process

26  Notice advertising allocation process

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

 (a) describes the parts of the spectrum to be allocated; and

 (b) gives a brief description of the way the allocation process will be conducted; and

 (c) states that the allocation process will be conducted in accordance with this instrument; and

 (d) invites persons to apply to the ACMA to take part in the allocation process; and

 (e) states the application deadline; and

 (f) states the eligibility deadline; and

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

 (h) states that the applicant information package for the allocation process 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 allocation process by any method.

27  Applicant information package

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

 (a) the re‑allocation declaration;

 (b) the marketing plan;

 (c) this instrument;

 (d) a guide to the allocation process;

 (e) the starting price for the lots of each product in the allocation process;

 (f) the dollar value of each eligibility point for the allocation process;

 (g) the lot rating for the lots of each product in the allocation process;

 (h) the set price for each leftover lot;

 (i) the amount of the application fee;

 (j) the application deadline, and information about the circumstances in which there may be a new application deadline;

 (k) each form approved by the ACMA under subsection 23(1);

 (l) the eligibility deadline, and information about the circumstances in which there may be an extended eligibility deadline;

 (m) advice that the eligibility deadline, or the extended eligibility deadline (if there is one), is the last time for withdrawal from the allocation process;

 (n) the physical address for giving documents to the ACMA;

 (o) the email address for giving documents to the ACMA;

 (p) the online web address for the giving of documents to the ACMA.

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

 (3) The ACMA must publish the applicant information package on its website as soon as practicable after notice of the allocation process is published under subsection 26(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.

Part 4—Applying to participate

Division 1—Confidentiality

28  Meaning of confidential information

 (1) Each of the following is confidential information for an applicant or bidder:

 (a) documents the applicant or bidder has given to the ACMA for the purposes of the allocation process;

 (b) information provided to the applicant under any of the following sections, for the purpose of participating in the allocation process:

 (i) section 24 (auction information for applicants);

 (ii) section 46 (auction information for new applicants);

 (iii) section 51 (auction information for additional applicants when starting prices change);

 (c) information provided to the bidder under paragraph 54(3)(c) (information about which leftover lots have been taken up);

 (d) information provided to the bidder under paragraphs 54(3)(d) and (e) (information about using the auction system), for the purpose of participating in the allocation process;

 (e) for a bidder:

 (i) the bidder’s start demand for a clock round of the primary stage of an auction;

 (ii) the bidder’s posted demand for a clock round of the primary stage of an auction;

 (iii) a bid made by the bidder in an auction;

 (iv) the bidder’s eligibility points at any time in the allocation period;

 (f) a proposed bid by the applicant or bidder, or a bid under consideration by the applicant or bidder;

 (g) a proposed start demand of the applicant or bidder, or a proposed start demand under consideration by the applicant or bidder;

 (h) the bidding strategy of the applicant or bidder;

 (i) the amount the applicant or bidder is willing to pay for:

 (i) a lot or combination of lots; or

 (ii) a part or parts of the spectrum in the 3.4/3.7 GHz bands;

 (j) information about the terms of agreements, or possible future agreements, affecting the use of relevant spectrum, to the extent the agreements:

 (i) relate to authorisations that are, or would be, permitted by section 68 of the Act; or

 (ii) relate to assignments made, or to be made, under section 85 of the Act; or

 (iii) deal with spectrum that is available in this allocation process;

 (k) information that, if disclosed, could be reasonably expected to affect, or be capable of affecting:

 (i) bids made or proposed to be made by another applicant or bidder; or

 (ii) start demands or proposed start demands of another applicant or bidder; or

 (iii) the bidding strategy of another applicant or bidder;

 (l) information that, if disclosed, could be reasonably expected to affect, or be capable of affecting, the outcome of the allocation process.

 (2) Despite subsection (1), the following are not confidential information for a bidder:

 (a) the mere fact that the bidder applied (or did not apply) to be directly allocated a leftover lot under Division 1 of Part 5;

 (b) the mere fact that the bidder was (or was not) directly allocated a leftover lot under that Division.

29  Obligation not to disclose confidential information

 (1) Each of the following persons must not, either directly or indirectly, disclose confidential information of an applicant or bidder to any person:

 (a) the applicant or bidder;

 (b) a related person of the applicant or bidder;

 (c) a contractor of an applicant or bidder.

 (2) Subsection (1) does not prevent a person disclosing information:

 (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 make a payment in relation to the allocation process; or

 (c) to the ACMA; or

 (d) for an applicant or bidder—to a related person of the applicant or bidder; or

 (e) for a related person of an applicant or bidder—to the applicant or bidder, or to another related person of the same applicant or bidder; or

 (f) for a contractor of an applicant or bidder—to the applicant or bidder, or to a related person of the same applicant or bidder; or

 (g) for the purpose of announcing or publishing that the applicant or bidder is participating in the allocation process; or

 (h) as required or authorised by this instrument; or

 (i) 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 33.

 (3) Subsection (1) does not prohibit a person disclosing information if the information is already publicly available.

30  Duration of confidentiality obligation

 (1) Section 29 applies in relation to a person until the ACMA announces or publishes the information mentioned in subsection 92(1) (information about the allocation results).

Note: The ACMA announces or publishes the information mentioned in subsection 92(1) only after winning bidders for the allocation process are notified in accordance with subsection 92(2).

 (2) However, if an applicant withdraws its application, section 29 applies in relation to the applicant, a related person of the applicant, or a contractor of the applicant until the applicant is notified by the ACMA under section 83 that the applicant’s confidentiality obligation has ended.

31  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:

 (a) discloses confidential information in breach of section 29; or

 (b) receives information that is confidential information for 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.

32  Notice of breach of confidentiality

 (1) This section applies if the ACMA reasonably believes that an applicant or bidder, or a related person of the applicant or bidder, or a contractor of the applicant or bidder, may have:

 (a) disclosed confidential information in breach of section 29; or

 (b) received confidential information as a result of a breach of section 29.

 (2) In relation to the applicant or bidder whose confidential information has been disclosed, the ACMA must:

 (a) notify, in writing, 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.

 (3) If the ACMA forms the belief before the end of the allocation period, the ACMA is not required to act under subsection (2) before the allocation period ends, but must act under that subsection as soon as practicable after the allocation period ends.

33  Deeds of confidentiality—related persons and contractors

 (1) A person must give the ACMA a deed of confidentiality if:

 (a) the person is a related person of an applicant or bidder; and

 (b) the person has knowledge of confidential information of the applicant or bidder; and

 (c) the person is either or both of the following:

 (i) an employee of the applicant or bidder;

 (ii) an employee of a related body corporate of the applicant or bidder that provides services to the applicant or bidder.

 (2) A person must give the ACMA a deed of confidentiality if:

 (a) the person is a contractor of an applicant or bidder; and

 (b) the person has knowledge of confidential information of the applicant or bidder.

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

 (a) for the sole purpose of providing, in the contractor’s professional capacity, advice relating to the allocation process; or

 (b) for the sole purpose of obtaining finance to make a payment in relation to the allocation process.

 (4) If a person to whom subsection (1) or (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 published on the ACMA’s website: see paragraphs 26(1)(h) and 27(1)(k).

Division 2—Applying to be registered

34  Applying to be registered as a bidder

 (1) A person who wishes to do one or more of the following may apply to become registered as a bidder in the allocation process:

 (a) bid in the 3.7 GHz auction;

 (b) bid in the 3.4 GHz auction;

 (c) be directly allocated a leftover lot.

Note: A person who is registered as a bidder in the allocation process may, subject to allocation limits and eligibility points, bid in either or both of the 3.4 GHz auction and the 3.7 GHz auction.

 (2) A person applies by doing all of the following before the application deadline:

 (a) giving the ACMA a completed application form;

 (b) giving the ACMA a completed associates form;

 (c) giving the ACMA a deed of acknowledgement executed by the applicant;

 (d) giving the ACMA a deed of confidentiality executed by the applicant;

 (e) paying the application fee.

Note 1: For information on how an application fee must be paid, see section 9.

Note 2: An applicant may withdraw its application before the eligibility deadline or extended eligibility deadline (if there is one): see subsection 53(1).

Updating documents

 (3) An applicant who has given the ACMA a document covered by paragraph (2)(a), (b), (c) or (d) before the application deadline may give the ACMA an updated, additional or replacement version of the document at any time until the application deadline, but not after the application deadline.

35  Application fee not refundable except in certain circumstances

 (1) Subject to subsection (2), an application fee paid by an applicant or bidder under this instrument is not refundable in any circumstances, including:

 (a) if the applicant withdraws from the allocation process; or

 (b) if the applicant or bidder is taken to withdraw from the allocation process; or

 (c) if the applicant or bidder is not permitted to make a bid in the 3.4 GHz auction or the 3.7 GHz auction.

 (2) An application fee paid by an applicant under this instrument is refundable if both the following occur:

 (a) the ACMA exercises a power under section 25 (about varying key settings);

 (b) the applicant withdraws its application before the extended eligibility deadline by giving the ACMA notice in writing.

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

36  Applicants to notify the ACMA if application information incorrect

 (1) If an applicant knows that any of the information it has given to the ACMA for the purposes of its application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.

 (2) The auction manager may correct information in an application if the auction manager is satisfied that the information is incorrect, such as it containing a clerical error or an obvious mistake or omission.

Note: Before the application deadline, an applicant may give the ACMA an updated, additional or replacement version of the document in accordance with subsection 34(3).

37  Applicant to make statutory declaration about affiliation

 (1) After the application deadline, the ACMA must:

 (a) give each applicant details about the identity of all other applicants, and the persons identified in associates forms as the associates of the 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.

Note: Division 4 of this Part is about dealing with affiliations.

 (2) 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.

38  Failure to give statutory declaration about affiliation

 (1) If an applicant does not give the ACMA a statutory declaration in accordance with section 37 by the deadline stated under subsection 37(2) (or, if the ACMA agrees to a later deadline, the agreed deadline), the applicant is taken to have withdrawn its application.

 (2) The ACMA must tell the applicant in writing if it is taken to have withdrawn its application under subsection (1).

Division 3—Eligibility points and leftover lots

39  Applying for eligibility points and to be allocated leftover lots

 (1) After the application deadline, and no later than the eligibility deadline, an applicant must give the ACMA a completed eligibility nomination form, which:

 (a) specifies the number of eligibility points the applicant wishes to have immediately before the start of the 3.7 GHz auction; and

 (b) if the applicant is eligible to apply to be directly allocated a leftover lot (see section 40), and wishes to so apply—applies to be directly allocated the leftover lot.

Note: The applicant must secure the eligibility points with an eligibility payment or deed of financial security (or both): see section 41.

Updating eligibility nomination form

 (2) Subject to subsection 48(2), an applicant who has given the ACMA a completed eligibility nomination form before the eligibility deadline may give the ACMA an updated, additional or replacement version of the document at any time until the eligibility deadline, but not after the eligibility deadline.

Note: A consequence of this is that an applicant who applies to be directly allocated a leftover lot cannot withdraw this application after the eligibility deadline (but subject to section 48).

Failure to comply

 (3) An applicant is taken to have withdrawn its application if the applicant fails to comply with subsection (1).

 (4) The ACMA must tell the applicant in writing if it is taken to have withdrawn its application under subsection (3).

40  Who is eligible to apply for a leftover lot

  A person is eligible to apply to be directly allocated a leftover lot if the person is:

 (a) the adjacent licensee identified for that lot in column 5 of the table in Schedule 3 to the marketing plan; or

 (b) if the licensee identified under paragraph (a) is a body corporate—a related body corporate of that licensee.

41  Requirement to secure eligibility points

 (1) This section applies if an applicant gives an eligibility nomination form, or updated eligibility nomination form, to the ACMA.

Note: See subsections 39(1), 45(6) and 48(2).

 (2) The applicant must secure the eligibility points specified in its eligibility nomination form or updated eligibility nomination form by doing any of the following by the eligibility deadline or extended eligibility deadline (if there is one):

 (a) making a payment (eligibility payment) of the amount required by subsection (3) to the ACMA;

 (b) giving the ACMA a deed of financial security for the amount required by subsection (3);

 (c) both:

 (i) making a payment (eligibility payment) for part of the amount required by subsection (3) to the ACMA; and

 (ii) giving the ACMA a deed of financial security for the remainder of that amount.

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 6 and subsections (4) to (6) of this section.

Amount required to secure eligibility points

 (3) The amount required by this subsection (the required amount) for an applicant (when expressed in dollars) is the sum of:

 (a) the product of the number of eligibility points specified in the form and the dollar value of those points (as set under paragraph 22(b)); and

 (b) for an applicant who applies to be directly allocated a leftover lot—10% of the set price for the leftover lot (as set under paragraph 22(c) and as varied (if applicable) under paragraph 25(1)(c)).

Requirements for deeds

 (4) If a deed of financial security is given to the ACMA by email, or uploaded to an online database (see paragraph 6(1)(d)), before the eligibility deadline, or the extended eligibility deadline (if there is one), the original deed must be received by the ACMA no later than 3 working days after that deadline (or, if the ACMA agrees to a later time, the agreed time).

 (5) 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.

Note: See also subsection 43(3).

 (6) 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.

42  Number of eligibility points secured

Initial eligibility points secured

 (1) An applicant’s eligibility points immediately before the start of the 3.7 GHz auction is the number of points secured by the applicant, as determined under this section.

Note: Section 104 sets out how a bidder’s eligibility points change during the allocation process. This section is relevant for item 1 of the table in that section.

 (2) If the applicant gives the ACMA a completed eligibility nomination form (or updated eligibility nomination form) and complies with subsection 41(2), the applicant secures the number of eligibility points specified in its completed eligibility nomination form (or updated eligibility nomination form).

Note 1: A bidder may be restricted in its use of eligibility points by the allocation limits.

Note 2: A bidder’s eligibility points may change during the allocation process: see section 104.

Incomplete payment or financial security

 (3) If an applicant makes an eligibility payment or gives a deed of financial security, or both, for an amount (the incomplete amount) less than the required amount (see subsection 41(3)), the ACMA must, in writing, notify the applicant that:

 (a) the applicant has made an eligibility payment or given a deed of financial security, or both, whichever is the case, for less than the required amount; and

 (b) the applicant must, before the eligibility deadline or extended eligibility deadline (if there is one), or no later than 3 working days after the date of the notice, whichever is the later, make a payment (eligibility payment) or give a deed of financial security, or both, for the remainder of the required amount.

Failure to remedy incomplete payment or financial security—reduced eligibility points

 (a) the applicant does not comply with the notice given under subsection (3); and

 (b) the number of points worked out under subsection (5) or (6) (whichever is applicable) is one or more;

then the applicant secures the number of eligibility points worked out under the applicable subsection.

Note: If the number of eligibility points is less than one, section 43 applies.

Applicant who did not apply for a leftover lot

 (5) If the applicant did not apply to be directly allocated a leftover lot, the number of points is worked out by:

 (a) working out the amount of the incomplete amount as a proportion of the amount required under subsection 41(3); and

 (b) multiplying that proportion by the number of eligibility points specified in the eligibility nomination form; and

 (c) rounding the result from paragraph (b) down to the nearest integer.

Applicant who applied for a leftover lot

 (6) If the applicant applied to be directly allocated a leftover lot, the number of points worked out under this subsection is:

 (a) if the incomplete amount equals or falls short of the amount required under paragraph 41(3)(b)—zero; or

 (b) if the incomplete amount exceeds the amount required under paragraph 41(3)(b)—worked out by:

 (i) working out the amount of the excess as a proportion of the required amount; and

 (ii) multiplying that proportion by the number of eligibility points specified in the eligibility nomination form; and

 (iii) rounding the result from subparagraph (ii) down to the nearest integer.

43  Consequence of failing to secure eligibility points

Consequence for applicants who did or did not apply for a leftover lot

 (1) In a situation covered by subsection (2), (3) or (4):

 (a) for an applicant who applied to be directly allocated a leftover lot—the applicant is not entitled to bid during the primary stage or the secondary stage of either the 3.7 GHz auction or the 3.4 GHz auction; or

 (b) for an applicant who did not apply to be directly allocated a leftover lot—the applicant is taken to have withdrawn its application.

Failure generally

 (2) This situation arises if an applicant fails to comply with subsection 41(2) or (4).

Failures relating to deeds

 (3) This situation arises if:

 (a) the ACMA is not satisfied that the person executing a deed of financial security, given to the ACMA by the applicant, is a person mentioned in subsection 41(5); or

 (b) an applicant fails to comply with subsection 41(6).

Payment or security insufficient

 (4) This situation arises if:

 (a) an applicant fails to comply with a notice given under subsection 42(3); and

 (b) the number of points worked out under subsection 42(5) or (6) (whichever is applicable) is less than one.

ACMA must notify affected applicants

 (5) If any of the following occur as a result of the operation of this section, the ACMA must tell the relevant applicant in writing about that fact:

 (a) an applicant is not entitled to bid during the primary stage or secondary stage of either the 3.7 GHz auction or the 3.4 GHz auction;

 (b) an applicant is taken to have withdrawn its application.

Division 4—Dealing with affiliations

44  Procedure if ACMA satisfied applicants are affiliated

 (1) If the ACMA is satisfied that 2 or more applicants are affiliated, the ACMA must, in writing:

 (a) notify the affiliated 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 allocation process:

 (i) each affiliated applicant must withdraw its application, and a new applicant must submit an application under section 45; or

 (ii) each affiliated applicant, but one, must withdraw its application.

 (2) Within 10 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 those 10 working days, each of the affiliated applicants is taken to have withdrawn its application.

 (4) If, within those 10 working days, some of the affiliated applicants withdraw their applications but more than one affiliated applicant does not, each of the remaining affiliated applicants is taken to have withdrawn its application.

 (5) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (3) or (4).

45  Dealing with affiliation—new applicant

New applicant to be formed and may apply to participate

 (1) If the members of a group of affiliated applicants notified by the ACMA under subsection 44(1) decide that a new applicant (new applicant) is 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 10 working days of the ACMA notifying the affiliated applicants under subsection 44(1):

 (a) give the ACMA a completed application form; and

 (b) give the ACMA a completed associates form; and

 (c) give the ACMA a deed of acknowledgement executed by the new applicant; and

 (d) give the ACMA a deed of confidentiality executed by the new applicant; and

 (e) pay the application fee.

Note: For information on how an application fee must be paid, see section 9. For refunds, see section 35.

 (3) If the ACMA receives the documents and application fee required 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 in applications as the associates of the other applicants.

 (4) The updated information does not need to include those applicants who have already withdrawn.

 (5) The new applicant’s application is not valid unless the new applicant, 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), makes and gives the ACMA a statutory declaration that the new applicant is not affiliated with any other applicant mentioned in the updated information.

Applying for eligibility points and to be allocated leftover lots

 (6) The new applicant must, no later than the eligibility deadline or extended eligibility deadline (if there is one), whichever is the case (or if the ACMA agrees to a later time, the agreed time) give the ACMA:

 (a) a completed eligibility nomination form, which includes the matters set out in subsection 39(1); or

 (b) a completed updated eligibility nomination form, which includes the matters set out in subsection 48(2);

as appropriate.

Note: The applicant must secure the eligibility points with an eligibility payment or deed of financial security (or both): see section 41.

 (7) If the new applicant fails to comply with subsection (6), the new applicant is taken to have withdrawn its application.

 (8) If, at any time before the new applicant is registered as a bidder, the ACMA is satisfied that the new applicant is affiliated with one or more other applicants who have not withdrawn their applications (including another applicant who has applied under this section), the new applicant and each of the other applicants is taken to have withdrawn its application.

 (9) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (7) or (8).

46  Initial auction information provided to new applicants

  After an application is made under section 45, the ACMA must give the new applicant the following:

 (b) information about making entries in the auction system during the pre‑bidding round for the primary stage or secondary stage of an auction;

 (c) information about making bids in the auction system during the primary stage, secondary stage and assignment stage of an auction.

Division 5—Dealing with changes to prices or lot ratings

47  Notice about updating application documents

  If the ACMA exercises a power under section 25 (about the ACMA varying prices and lot ratings), then as soon as practicable after setting the deadlines under subsection 25(2), the ACMA must notify all applicants, in writing, of the effect of sections 41 and 48 (requirement to give updated eligibility nomination form and secure eligibility points).

48  Updating eligibility nomination form and financial security

 (1) As soon as practicable after the ACMA sets the deadlines under subsection 25(2), the ACMA must give each applicant a copy of the updated eligibility nomination form.

 (2) No later than the extended eligibility deadline, an applicant must give the ACMA a completed updated eligibility nomination form that:

 (a) specifies the number of eligibility points the applicant wishes to have immediately before the start of the 3.7 GHz auction; and

 (b) if the applicant is eligible to apply to be directly allocated a leftover lot (see section 40), and wishes to so apply—applies to be directly allocated the leftover lot.

Note: The applicant must secure the eligibility points with an eligibility payment or deed of financial security: see section 41.

 (3) An applicant is taken to have withdrawn its application if the applicant fails to comply with subsection (2).

 (4) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (3).

49  Notice inviting additional applicants to the auction

 (1) As soon as practicable after the ACMA sets the deadlines under subsection 25(2), the ACMA must publish on its website a notice that:

 (a) invites persons, who are not already applicants, to apply to the ACMA to take part in the allocation process; and

 (b) states the new application deadline; and

 (c) states the extended eligibility deadline; and

 (d) states that applications may only be withdrawn before the extended eligibility deadline; and

 (e) states that the applicant information package for the allocation process (with changes to the contents as a result of any decisions made by the ACMA under section 25) 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 allocation process by any method.

50  Applying to be registered—additional applicants

 (1) A person who:

 (a) is not already an applicant; or

 (b) was an applicant but withdrew, or was taken to have withdrawn, its application;

  may apply to become registered as a bidder in the allocation process if the person wishes to do one or more of the following:

 (c) bid in the 3.7 GHz auction;

 (d) bid in the 3.4 GHz auction;

 (e) be directly allocated a leftover lot.

Note: A person who is registered as a bidder in the allocation process may, subject to allocation limits and eligibility points, bid in either or both of the 3.4 GHz auction and the 3.7 GHz auction.

 (2) The person applies by doing all of the following before the new application deadline:

 (a) giving the ACMA a completed application form;

 (b) giving the ACMA a completed associates form;

 (c) giving the ACMA a deed of acknowledgement executed by the applicant;

 (d) giving the ACMA a deed of confidentiality executed by the applicant;

 (e) paying the application fee.

Note 1: For information on how an application fee must be paid, see section 9.

Note 2: An applicant may withdraw its application before the extended eligibility deadline: see subsection 53(1).

Applying for eligibility points and to be allocated leftover lots

 (3) After the new application deadline, and no later than the extended eligibility deadline, an applicant under this section must give the ACMA a completed updated eligibility nomination form, which:

 (a) specifies the number of eligibility points the applicant wishes to have immediately before the start of the 3.7 GHz auction; and

 (b) if the applicant is eligible to apply to be directly allocated a leftover lot (see section 40), and wishes to so apply—applies to be directly allocated the leftover lot.

Note: The applicant must secure the eligibility points with an eligibility payment or deed of financial security (or both): see section 41.

Updating documents

 (4) The applicant may give the ACMA an updated, additional or replacement document:

 (a) for a document mentioned in paragraph (2)(a), (b), (c) or (d)—at any time until the new application deadline, but not after the new application deadline; or

 (b) for a document mentioned in paragraph (3)(a) or (b)—at any time until the extended eligibility deadline, but not after the extended eligibility deadline.

Failure to give updated eligibility nomination form

 (5) The applicant is taken to have withdrawn its application if the applicant fails to comply with subsection (3).

 (6) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (5).

51  Initial auction information for additional applicants

  As soon as practicable after the new application deadline, the ACMA must give each applicant under section 50 the following:

 (b) information about making entries in the auction system during the pre‑bidding round of the primary stage and secondary stage of an auction;

 (c) information about making bids in the auction system during the primary stage, secondary stage and assignment stage of an auction.

52  Statutory declarations and affiliations

 (1) If the ACMA receives an application from an applicant (an additional applicant) in accordance with subsection 50(1), the ACMA must, after the new application deadline:

 (a) give each applicant (including each additional applicant) details about the identity of all other applicants, and the persons identified in applications as the associates of the other applicants; and

 (b) ask each applicant (including each additional 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 an applicant who has withdrawn its application.

 (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 (including an additional applicant) does not give the ACMA a statutory declaration in accordance with this section by the deadline stated under subsection (3) (or, if the ACMA agrees to a later deadline, the agreed deadline), the applicant is taken to have withdrawn its application.

 (5) If the ACMA is satisfied that 2 or more applicants are affiliated, the procedures in sections 44 and 45 apply.

 (6) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (4).

Division 6—Withdrawal of applications

53  Withdrawal of application

 (1) Subject to subsection (6), an applicant may withdraw its application before the eligibility deadline or extended eligibility deadline (if there is one), by giving the ACMA notice in writing.

 (2) If:

 (a) an applicant withdraws its application under subsection (1), or is taken to have withdrawn its application under another provision of this instrument; and

 (b) the applicant paid all or part of an eligibility payment under section 41;

the ACMA must refund the amount paid within the period specified in subsection 83(2).

 (3) Subsection (2) is subject to sections 155 and 157.

 (4) An applicant may not withdraw its application after the later of the eligibility deadline or extended eligibility deadline (if there is one).

 (5) Subject to subsection 50(1), an applicant must not be re‑admitted to the allocation process after withdrawing, or being taken to have withdrawn, its application.

 (6) The ACMA must tell an applicant in writing if it has withdrawn its application under this section.

Division 7—Registration of bidders

54  Registration process

 (1) The ACMA must register a person as a bidder in the allocation process if and only if:

 (a) the later of the eligibility deadline or extended eligibility deadline (if there is one) has passed; and

 (b) the person has made a valid application under section 34, 45 or 50, including updating, adding to or replacing a document in an application under another provision of this instrument; and

 (c) the person has not withdrawn, and is not taken by a provision of this instrument to have withdrawn, its application; and

 (d) subject to subsection (2):

 (i) the person has made an eligibility payment (including an additional eligibility payment) or given the ACMA a deed of financial security (or both) under, or for the purposes of, section 41; and

 (ii) if a deed of financial security has been given—the ACMA is satisfied that the person who executed the deed is a person mentioned in subsection 41(5).

 (2) Paragraph (1)(d) does not apply in relation to an applicant who applied to be directly allocated a leftover lot.

 (3) After the later of the eligibility deadline or extended eligibility deadline (if there is one), the ACMA must tell a bidder in writing that the bidder has been registered and may participate in the allocation process, 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 number available for use by bidders;

 (c) information about the leftover lots directly allocated under Division 1 of Part 5, and the bidders to whom those lots were allocated;

 (d) information about accessing the auction system;

 (e) information about how to make an entry and a bid by alternative methods if the bidder is unable to make an entry or a bid using the auction system.

55  Register of bidders

 (1) The ACMA must maintain a register of bidders in electronic form.

 (2) Before the start of the 3.7 GHz auction, the register must contain the following for each bidder:

 (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) whether the bidder has been directly allocated a leftover lot;

 (g) the number of eligibility points secured by the bidder under Division 3 of this Part;

 (h) the bidder’s unused allocation limit for the 3.7 GHz auction for each metropolitan product and each regional product;

 (i) the bidder’s ABN, ACN or ARBN;

 (j) the names of the bidder’s associates and the nature of each associate’s association with the bidder.

 (3) The ACMA may also include other information in the register, if the ACMA considers the information necessary or convenient for the allocation process.

 (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;

the ACMA must change or correct the register as soon as practicable.

56  Bidders to notify the ACMA if register incorrect

 (1) 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.

 (2) Subject to subsection (5), if the auction manager is satisfied that information on the register is incorrect, the auction manager may correct the register.

 (3) Examples of information that is incorrect for the purposes of subsection (2) are information that contains a clerical error, information that contains an obvious mistake, or information that contains an omission.

 (4) Subsection (3) does not limit subsection (2).

Part 5—Allocation procedures

Division 1—Allocation of leftover lots

57  Allocation of leftover lots

 (1) This section applies if a person who is eligible to apply to be directly allocated a leftover lot (see section 40) has applied to the ACMA under section 39 or 48 or subsection 50(3) to be directly allocated the leftover lot.

 (2) Immediately after the eligibility deadline, or the extended eligibility deadline (if there is one), the person is directly allocated the leftover lot.

Note: A person who is directly allocated a leftover lot under this section is a winning bidder in the 3.4 GHz auction (see paragraph 65(1)(c)). Division 7 is about payment and issue of licences for winning bidders.

Division 2—General procedures for both auctions

58  Auction stages

 (1) The 3.7 GHz auction and the 3.4 GHz auction each consist of a primary stage, a secondary stage (if required) and an assignment stage.

 (2) The primary stage is made up of:

 (a) a pre‑bidding round, for bidders:

 (i) to enter their start demand for lots of each product; and

 (ii) if desired, to elect to adopt the minimum spectrum requirement for lots of each product; and

 (b) one or more clock rounds for the making of bids on lots of a product, and the results of that clock round; and

 (c) the determination of the final posted demands, as a result of the final clock round, for the lots of each product allocated to a primary winner, and of the associated primary price, after all clock rounds are completed.

 (3) The secondary stage, if required, is made up of:

 (a) a pre‑bidding round, for bidders to indicate which (if any) residual lots of a product they intend to bid for in the secondary stage of the auction; and

 (b) one or more rounds for the making of bids on any such residual lots, and the results of that round; and

 (c) the determination of the winning final high bids for any residual lot of a product allocated to a secondary winner, and of the associated secondary price, after all rounds for the secondary stage are completed.

 (4) The assignment stage is made up of:

 (a) one or more assignment rounds for determining the assignment of frequency ranges (which generally involves the making of bids); and

 (b) for the 3.4 GHz auction—the allocation of any leftover lot not directly allocated under Division 1 of this Part; and

 (c) the determination of the winning assignment bids (after an assignment round has ended), and of the total assignment price for each assignment winner after all assignment rounds are completed.

59  Procedures if only one bidder

 (1) If there is only one bidder in an auction, the procedures to be applied for allocating lots of the products and assigning frequency ranges are as follows:

 (a) despite section 94, the bid increment percentage for the first clock round of the primary stage is zero percent; and

 (b) there will be one notional clock round in the primary stage, during which the bidder is treated as having made maintain bids for each product; and

 (c) the assignment stage will be conducted as soon as possible after the primary stage to enable the bidder to indicate the frequency ranges the bidder wishes to have assigned.

Note 1: In this situation, the assignment prices will be zero: see subsection 144(3).

Note 2: The assignment stage for the 3.4 GHz auction may include the allocation of leftover lots: see subsection 58(4).

 (2) The ACMA must notify the bidder as soon as reasonably practicable after the pre‑bidding round of the primary stage that it is the only bidder, and that the procedures in this section apply.

60  Auction rules

 (1) The rounds for the primary stage of an auction are to be conducted in accordance with the rules in Division 1 of Part 6.

 (2) The rounds for the secondary stage of an auction, if required, are to be conducted in accordance with the rules in Division 2 of Part 6.

 (3) The rounds for the assignment stage of an auction are to be conducted in accordance with the rules in Division 3 of Part 6.

61  Auction manager’s discretion to accept entries and bids

 (1) The auction manager may permit a bidder to make:

 (a) an entry in the pre‑bidding round of the primary stage or the secondary stage of an auction; or

 (b) a bid for a clock round in the primary stage, a round in the secondary stage, or in an assignment round of an auction;

by a method other than the auction system if the auction manager is satisfied that the bidder is not able to make an entry or a bid using the auction system.

 (2) The auction manager may permit a bidder to make:

 (a) an entry in the pre‑bidding round of the primary stage or the secondary stage of an auction; or

 (b) a bid for a clock round in the primary stage, a round in the secondary stage, or in an assignment round of an auction;

after the end time of the relevant round if the auction manager is satisfied that the bidder could not make the entry or bid (as the case requires) during the round because of technical or communication problems.

 (3) An entry or bid permitted to be made by the auction manager under subsection (2) is taken to have been made during the relevant round.

 (4) The auction manager must not permit a bidder to make:

 (a) an entry under paragraph (2)(a) after information about the outcome of the pre‑bidding round has been provided to bidders; or

 (b) a bid under paragraph (2)(b) after information about the outcome of the relevant round has been provided to bidders.

Note 1: See subsections 101(4) and 124(4) for details of the information about the outcome of the pre‑bidding round that will be provided to bidders.

Note 2: See sections 99 and 120, and subsections 143(1) and 144(1) for details of the information about the outcome of a round of an auction that will be provided to bidders.

62  Action that auction manager may take in exceptional circumstances

 (1) If the auction manager is satisfied that an auction is affected by exceptional circumstances, the auction manager may:

 (a) make corrections to one or more of the following:

 (i) entries made in the pre‑bidding round of the primary stage or the secondary stage of the auction;

 (ii) the results of the round of the auction that last ended;

 (iii) information received by a bidder after that round; or

 (b) stop the pre‑bidding round, and restart the pre‑bidding round, of the primary stage or the secondary stage of the auction; or

 (c) stop the current round, and restart it; or

 (d) cancel the results of one or more rounds, and restart the auction from the point before those rounds; or

 (e) cancel the results of:

 (i) all the clock rounds in the primary stage of the auction; or

 (ii) all the rounds in the secondary stage of the auction; or

 (iii) all the assignment rounds of the auction;

  and restart the auction from the first round of the relevant stage; or

 (f) suspend the auction.

 (2) In this section, exceptional circumstances include the following:

 (a) a significant technical difficulty with the auction system;

 (b) a breach of the confidentiality obligation in section 29.

 (3) Subsection (2) does not limit what might constitute exceptional circumstances.

 (4) This section applies to the following:

 (a) the pre‑bidding round for the primary stage or the secondary stage;

 (b) the clock rounds in the primary stage;

 (c) the rounds in the secondary stage;

 (d) the assignment rounds in the assignment stage.

63  Security of the auctions

 (1) A bidder must ensure that any information and items provided to the bidder for the purpose of accessing the auction system are kept secure, and not misused, during the allocation period.

 (2) A bidder must notify the ACMA immediately if any information or item provided to the bidder for the purpose of accessing the auction system is lost or stolen during the allocation period.

64  Advising winning bidders of their auction results

  After the completion of the assignment stage of an auction, the auction manager must tell each winning bidder in the auction:

 (a) the number of lots of each product allocated to the winning bidder in the auction (including, for the 3.4 GHz auction, any leftover lots allocated under Division 1 of this Part or section 145); and

 (b) the frequency ranges assigned to the lots allocated to the winning bidder in the auction; and

 (c) the winning price to be paid by the winning bidder in relation to the auction.

Note 1: The allocation of spectrum licences is complete when frequency ranges are assigned to lots of a product at the end of the assignment stage of the 3.4 GHz auction.

Note 2: However, spectrum in a spectrum licence may be taken to be unallocated in some circumstances: see subsection 72(7) and sections 91, 155 and 156.

65  Meaning of winning bidder and winning price

 (1) A winning bidder, in the 3.7 GHz auction or the 3.4 GHz auction, is:

 (a) a primary winner in the auction; or

 (b) a secondary winner in the auction; or

 (c) for the 3.4 GHz auction—a person who was allocated a leftover lot under Division 1 of this Part.

 (2) The winning price for a winning bidder in relation to the 3.7 GHz auction or the 3.4 GHz auction is the total of:

 (a) the primary price for all lots allocated to the bidder in the primary stage of the auction; and

 (b) the secondary price for all lots allocated to the bidder in the secondary stage (if there is one) of the auction; and

 (c) the total assignment price (if any) for all frequency ranges assigned to those lots in the assignment stage of the auction; and

 (d) for the 3.4 GHz auction—the set price for any leftover lot allocated to the bidder under Division 1 of this Part.

Note 1: The winning price is the total spectrum access charge fixed under section 294 of the Act, payable by a licensee for the issuing of spectrum licences to the licensee.

Note 2: This section relates to Division 7 of Part 5 of this instrument and is disallowable under section 42 of the Legislation Act 2003.

Division 3—Dealing with affiliations during the allocation period

66  Affiliation between bidders during allocation period not permitted

  A bidder must not be affiliated with another bidder during the allocation period.

Note: If the ACMA is satisfied that a breach of this provision has occurred, the ACMA may take action under section 155. Section 155 enables the ACMA to retain an eligibility payment if it is satisfied certain breaches of this instrument have occurred.

67  Requirement to report affiliation

  If, at any time during the allocation 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.

68  Allocation process continues despite possible affiliation

  If the ACMA becomes aware during the allocation period that 2 or more bidders may be affiliated, the allocation process is to continue and the bidders may continue to participate in the process.

69  Consideration of affiliation

 (1) If the ACMA has reason to believe that 2 or more bidders are affiliated during the allocation period, the ACMA must, in writing, notify the bidders and tell them the basis on which the ACMA believes that the affiliation exists.

 (2) If a bidder gave the ACMA information under section 67 and the ACMA does not consider that the affiliation exists, the ACMA must tell the bidder in writing that the ACMA does not consider the affiliation to exist.

70  Statements about affiliations during an auction

 (a) the ACMA has notified bidders under subsection 69(1) that it has reason to believe the bidders are affiliated; and

 (b) the time at which the ACMA did so (the notice time) occurred during the allocation period, but before the start of the assignment stage of the 3.4 GHz auction.

 (2) As soon as practicable after giving the notice, the ACMA must:

 (a) give each notified bidder details about the identity of all other notified bidders; and

 (b) ask each notified bidder to make a statement about whether the bidder is an affiliate of another person who is a notified bidder and, if so, identifying the other notified bidder and giving details of the affiliation.

 (3) In addition to subsection (2), if the notice time was:

 (a) for the 3.7 GHz auction—after the start of the allocation period but before the end of the primary stage (if there is no secondary stage) or the secondary stage of the auction; or

 (b) for the 3.4 GHz auction—after the start of the pre‑bidding round of the primary stage and before the end of the primary stage (if there is no secondary stage) or the secondary stage of the auction;

then the ACMA must, as soon as practicable before the end of the relevant stage:

 (c) give each primary winner and each secondary winner in the auction details about the identity of all other persons who are:

 (i) primary winners and secondary winners in that auction; and

 (ii) for the 3.4 GHz auction—primary winners and secondary winners in the 3.7 GHz auction; and

 (d) ask each such primary winner and secondary winner to make a statement about whether the winner is an affiliate of another person who is a primary winner or secondary winner and, if so, identifying the other winner and giving details of the affiliation.

 (4) The ACMA must state a deadline, at least 10 working days after the date of the request, before which a statement requested under subsection (2) or (3) must be received by the ACMA.

 (5) A notified bidder, primary winner or secondary winner must give the ACMA a statement requested under subsection (2) or (3) 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 licence.

71  Notification of affiliation during allocation period

  If:

 (a) the ACMA is satisfied that 2 or more bidders (whether or not primary winners or secondary winners) are affiliated; and

 (b) the time at which the ACMA became so satisfied (the affiliation time) was during the allocation period, but before the start of the assignment stage of the 3.4 GHz auction;

the ACMA must, in writing, notify those bidders and tell them the basis on which the ACMA is satisfied the bidders are affiliated.

72  Consequence of affiliation before assignment stage

 (1) This section applies in relation to an auction (the affected auction) if:

 (a) the ACMA notified 2 or more persons under section 71 (affiliated persons); and

 (b) either:

 (i) 2 or more of those affiliated persons are primary winners or secondary winners in the affected auction; or

 (ii) for the 3.4 GHz auction—of the affiliated persons, at least one is a primary winner or secondary winner in the 3.7 GHz auction and at least one is a primary winner or secondary winner in the 3.4 GHz auction; and

 (c) the affiliation time (see paragraph 71(b)) was:

 (i) for the 3.7 GHz auction—after the start of the allocation period but before the end of the primary stage (if there is no secondary stage) or the secondary stage of the auction; or

 (ii) for the 3.4 GHz auction—after the start of the pre‑bidding round of the primary stage and before the end of the primary stage (if there is no secondary stage) or the secondary stage of the auction; and

 (d) the allocation of spectrum licences to the affiliated persons who are primary winners or secondary winners in the affected auction for lots of each metropolitan product and regional product allocated to those persons in the primary stage or secondary stage of the auction would result in a person exceeding the allocation limit for the area of any product.

 (2) The ACMA must not allocate spectrum licences to the affiliated persons who are primary winners or secondary winners in the affected auction if doing so would result in a person exceeding the allocation limit for the area of any product.

 (3) If it is possible for one or more lots of a product to be allocated to one or more affiliated persons who are primary winners or secondary winners in the affected auction without a person exceeding an allocation limit, then the affiliated persons who are primary winners or secondary winners in the auction may give a direction in writing to the ACMA specifying how lots are to be allocated between those persons up to the allocation limits.

 (4) The direction must be given:

 (a) jointly by the affiliated persons; and

 (b) to the ACMA within 5 working days after those persons received notification under section 71.

 (5) If the ACMA receives a direction that complies with subsections (3) and (4), lots are allocated to the affiliated persons in accordance with the direction.

 (6) If the ACMA does not receive a direction that complies with subsections (3) and (4), the ACMA may, for any part of the spectrum where the lots of one or more products allocated to the affiliated persons who are primary winners or secondary winners in the auction would result in a person exceeding the allocation limit for the area of any product, at its discretion allocate lots of one or more of those products to each person up to those allocation limits.

 (7) Spectrum in excess of the allocation limits that is not allocated under subsection (5) or (6) is taken to be unallocated.

 (8) A winning bidder who is allocated at least one lot of a product after applying this section must pay the full balance of the total winning price:

 (a) calculated in relation to all lots for which the winning bidder was the primary winner or secondary winner, despite not being allocated all those lots as a result of this section; and

 (b) for all frequency ranges assigned to any lots which were allocated to the winning bidder as a result of this section.

Note: This subsection relates to Division 7 of Part 5 of this instrument and is disallowable under section 42 of the Legislation Act 2003.

 (9) This section prevails over sections 111 and 130.

73  Consequence of affiliation for 3.4 GHz auction—apportionment of unused allocation limit

 (a) ACMA has notified bidders under section 71 (affiliated persons); and

 (b) the affiliation time (see paragraph 71(b)) was before the start of the pre‑bidding round of the primary stage of the 3.4 GHz auction.

 (2) To avoid doubt, this section applies in addition to section 72 if the affiliation time was the time set out in subparagraph 72(1)(c)(i) for the 3.7 GHz auction.

 (3) The affiliated persons may give a direction in writing to the ACMA specifying how to apportion between those persons the unused allocation limit for the 3.4 GHz auction for each metropolitan product or regional product that is available in that auction.

 (4) The direction must be given:

 (a) jointly by the affiliated persons; and

 (b) to the ACMA within 5 working days after those persons received notification under section 71.

 (5) If the ACMA receives a direction that complies with subsections (3) and (4), then for the purposes of subsection 15(3), the manner of apportioning the relevant limit between the affiliated bidders is the manner specified in the direction.

 (6) If the ACMA does not receive a direction that complies with subsections (3) and (4), then for the purposes of subsection 15(3), the manner of apportioning the relevant limit between the affiliated bidders is the manner determined by the ACMA at its discretion.

Note: Section 78 requires the ACMA to give the bidders notice of their recalculated unused allocation limit.

 (7) For the purposes of section 29, the affiliated persons are authorised to disclose information to each other for the purpose of deciding how to direct the ACMA to apportion the unused allocation limit.

Division 4—Procedures relating to the 3.7 GHz auction

74  Preparation for bidding

  The ACMA must give each bidder an opportunity to trial the auction system before the 3.7 GHz auction commences.

75  Scheduling of auction rounds

 (1) The rounds of the 3.7 GHz auction for the primary stage, secondary stage and assignment stage are to be scheduled in accordance with this instrument.

Note: The general rules for the conduct of the 3.7 GHz auction and the 3.4 GHz auction are in Part 6 of this instrument.

 (2) The first clock round of the primary stage of the 3.7 GHz auction starts on the date and time for that clock round set by the auction manager under paragraph 76(1)(a).

76  Pre‑bidding round and first clock round of 3.7 GHz auction

 (1) After the later of the eligibility deadline or extended eligibility deadline (if there is one), the auction manager must:

 (a) set the start date and start time of the first clock round of the primary stage of the 3.7 GHz auction; and

 (b) set a period of at least 3 hours that falls within the 48 hours before the start date and start time of the first clock round of the primary stage of that auction as the pre‑bidding round.

 (2) At least 10 working days before the start of the pre‑bidding round of the primary stage of the 3.7 GHz auction, the auction manager must notify each bidder of:

 (a) the start date and start time, and duration, of the pre‑bidding round of the primary stage of the 3.7 GHz auction; and

 (b) the start date and start time of the first clock round of the primary stage of the 3.7 GHz auction.

The ACMA may vary start date and start time

 (3) Not less than 2 working days before the start date and start time of the pre‑bidding round of the primary stage of the 3.7 GHz auction, the ACMA may:

 (a) vary the start date and start time of the first clock round of the primary stage of the 3.7 GHz auction to a date that is at least 10 working days later than the date set under paragraph (1)(a); and

 (b) set a period of at least 3 hours that falls within the 48 hours before the varied start date and start time of the first clock round of the primary stage of that auction as the pre‑bidding round.

 (4) If the ACMA varies the start date and start time under subsection (3), then at least 10 working days before the varied start date of the first clock round of the 3.7 GHz auction, the auction manager must notify each bidder of:

 (a) the new start date and new start time, and duration, of the pre‑bidding round of the primary stage of the 3.7 GHz auction; and

 (b) the new start date and new start time of the first clock round of the primary stage of the 3.7 GHz auction.

 (5) If the ACMA varies the start date and start time under subsection (3), the reference in that subsection to the start date and start time of the pre‑bidding round of the primary stage of the 3.7 GHz auction is taken to be a reference to that start date and start time as varied by the ACMA.

77  Results of the 3.7 GHz auction

  After the end of the 3.7 GHz auction and before the start of the pre‑bidding round of the primary stage of the 3.4 GHz auction, the ACMA must notify each bidder of the following:

 (a) the names of the winning bidders in the 3.7 GHz auction;

 (b) the number of lots of each product allocated to each winning bidder in the 3.7 GHz auction;

 (c) the frequency ranges assigned to those lots;

 (d) the winning price paid, or to be paid, by each winning bidder in the 3.7 GHz auction;

 (e) the posted price of the lots of each product in the final clock round of the 3.7 GHz auction;

 (f) the residual price of each residual lot in the secondary stage (if any) of the 3.7 GHz auction.

Division 5—Procedures relating to the 3.4 GHz auction

78  Recalculation of unused allocation limit

 (1) This section applies in relation to a bidder who is:

 (a) the primary winner or secondary winner for a lot of a product in the 3.7 GHz auction; or

 (b) affiliated with a primary winner or secondary winner for a lot of a product in the 3.7 GHz auction.

 (2) After the end of the 3.7 GHz auction, the ACMA must determine the unused allocation limit (see sections 15 and 73) for the bidder for the 3.4 GHz auction for each metropolitan product or regional product that will be available in that auction.

Note 1: The unused allocation limit must take into account the outcome of the 3.7 GHz auction: see subparagraph 12(4)(b)(ii) and subsection 15(2).

Note 2: The unused allocation limit is affected by affiliations between auctions: see section 73.

 (3) At least 3 working days before the start of the pre‑bidding round of the primary stage of the 3.4 GHz auction, the ACMA must notify the bidder of its unused allocation limit for each such product for the 3.4 GHz auction.

79  Recalculation of eligibility points

 (1) This section applies in relation to a bidder who is the primary winner or secondary winner for a lot of a product in the 3.7 GHz auction.

 (2) After the end of the 3.7 GHz auction, the ACMA must calculate the bidder’s eligibility points as at the time immediately before the start of the 3.4 GHz auction (see item 4 of the table in section 104).

 (3) At least 3 working days before the start of the pre‑bidding round of the primary stage of the 3.4 GHz auction, the ACMA must notify the bidder of the number of eligibility points calculated.

80  Updating the register

  Before the start of the 3.4 GHz auction, the ACMA must update the register of bidders maintained under section 55 with the following information:

 (a) the number of eligibility points the bidder has as at the time immediately before the start of the 3.4 GHz auction;

 (b) the bidder’s updated unused allocation limit for each metropolitan product and each regional product available in the 3.4 GHz auction;

 (c) any other information contained in the register that requires updating.

81  Scheduling of auction rounds

 (1) The rounds of the 3.4 GHz auction for the primary stage, secondary stage (if required) and assignment stage are to be scheduled in accordance with this instrument.

Note: The general rules for the conduct of the 3.7 GHz auction and the 3.4 GHz auction are in Part 6 of this instrument.

 (2) The first clock round of the primary stage of the 3.4 GHz auction starts on the date and time for that clock round set by the auction manager under paragraph 82(1)(a).

82  Pre‑bidding round and first clock round of 3.4 GHz auction

 (1) After the completion of the assignment stage of the 3.7 GHz auction, the auction manager must:

 (a) set the start date and start time of the first clock round of the primary stage of the 3.4 GHz auction; and

 (b) set a period of at least 3 hours that falls within the 48 hours before the start date and start time of the first clock round of the primary stage of that auction as the pre‑bidding round.

 (2) The minimum period between the completion of the assignment stage of the 3.7 GHz auction and the start of the first clock round of the primary stage of the 3.4 GHz auction is 5 working days.

 (3) At least 5 working days before the start of the first clock round of the primary stage of the 3.4 GHz auction, the auction manager must notify each bidder of:

 (a) the start date and start time, and duration, of the pre‑bidding round of the primary stage of the 3.4 GHz auction; and

 (b) the start date and start time of the first clock round of the primary stage of the 3.4 GHz auction.

Division 6—Confirmation of results of allocation process

83  Notice and refunds to withdrawn applicants

 (1) As soon as practicable after the end of the allocation period, the ACMA must notify each applicant that withdrew, or was taken to have withdrawn, its application that the applicant’s confidentiality obligation under section 29 has ended.

 (2) If an applicant that withdrew, or was taken to have withdrawn, its application made an eligibility payment, the ACMA must refund the eligibility payment no later than 6 months after giving the notice under subsection (1).

 (3) Subsection (2) does not apply if the ACMA has made a decision to retain the eligibility payment under section 155.

Note: Section 155 enables the ACMA to retain an eligibility payment if it is satisfied certain breaches of this instrument have occurred.

84  Notice and refunds to unsuccessful bidders

 (1) After the completion of the assignment stage of the 3.4 GHz auction, the ACMA must notify each bidder that is not a winning bidder (unsuccessful bidder) that:

 (a) the bidder was unsuccessful in the auctions; and

 (b) the bidder’s confidentiality obligation under section 29 will end when the ACMA announces or publishes the information mentioned in subsection 92(1).

 (2) If an unsuccessful bidder made an eligibility payment, the ACMA must refund the eligibility payment no later than 6 months after giving the notice under subsection (1).

 (3) Subsection (2) does not apply if the ACMA has made a decision to retain the eligibility payment under section 155.

Note: Section 155 enables the ACMA to retain an eligibility payment if it is satisfied certain breaches of this instrument have occurred.

85  Advising all bidders of results of allocation process

 (1) After the completion of the assignment stage of the 3.4 GHz auction, the auction manager must tell all bidders in writing:

 (a) the names of all winning bidders for each auction; and

 (b) the names of any unsuccessful bidders (see section 84) in the auctions; and

 (c) the frequency ranges in relation to the lots allocated under this instrument (including leftover lots allocated under Division 1 of this Part or section 145); and

 (d) the winning price paid, or to be paid, by each winning bidder in relation to each auction; and

 (e) the posted price for the lots of each product in the final clock round of each auction; and

 (f) the residual price of each residual lot in the secondary stage (if any) of each auction.

 (2) Unless all bidders agree in writing, the ACMA must not provide to bidders any further information regarding the results of the auctions other than that mentioned in subsection (1), and in subsections 132(2) and 133(1), unless required by law.

Note: For information about the auctions that is announced or published after the end of the allocation period, see subsection 92(1).

Division 7—Payment and issue of licences

Note: This Division is made under section 294 of the Act, and is disallowable under section 42 of the Legislation Act 2003.

86  Spectrum access charge

  The spectrum access charge payable by a bidder for issue of a spectrum licence under Subdivision B of Division 1 of Part 3.2 of the Act, and in accordance with this instrument, is the sum of:

 (a) the bidder’s winning price in the 3.7 GHz auction; and

 (b) the bidder’s winning price in the 3.4 GHz auction.

Note: For the definition of winning price, see subsection 65(2).

87  Balance of the total winning price

  For a person who is a winning bidder in either or both of the 3.7 GHz auction and the 3.4 GHz auction, the balance of the total winning price is the spectrum access charge calculated for the bidder under section 86, minus any eligibility payment made by the bidder under section 41.

88  Sufficient eligibility payment—issue of spectrum licence without further payment

 (1) If the balance of the total winning price for a winning bidder is an amount less than zero:

 (a) the ACMA must refund the eligibility payment in excess of the spectrum access charge no later than 6 months after telling bidders the information under section 85; and

 (b) the bidder is entitled to be issued, without further payment:

 (i) a single spectrum licence for all parts of the spectrum from 3400 MHz to 3575 MHz assigned to the lots (if any) allocated to the bidder (including any leftover lots); and

 (ii) a single spectrum licence for all parts of the spectrum from 3700 MHz to 3800 MHz assigned to the lots (if any) allocated to the bidder.

 (2) If the balance of the total winning price for a winning bidder is zero, the bidder is entitled to be issued, without further payment:

 (a) a single spectrum licence for all parts of the spectrum from 3400 MHz to 3575 MHz assigned to the lots (if any) allocated to the bidder (including any leftover lots); and

 (b) a single spectrum licence for all parts of the spectrum from 3700 MHz to 3800 MHz assigned to the lots (if any) allocated to the bidder.

 (3) Subsections (1) and (2) do not apply if the ACMA has made a decision to retain the eligibility payment under section 155.

Note: Section 155 enables the ACMA to retain an eligibility payment if it is satisfied certain breaches of this instrument have occurred.

89  Payment of balance of total winning price

 (1) If the balance of the total winning price for a winning bidder is an amount greater than zero, the ACMA must notify the winning bidder, in writing, of the following:

 (a) the bidder’s winning price in relation to each auction;

 (b) the total of the winning prices referred to in paragraph (a);

 (c) the effect on the balance of the total winning price of any eligibility payments made under section 41;

 (d) that the balance of the total winning price must be paid in full;

 (e) the date by which the balance of the total winning price must be paid to the ACMA.

 (2) For paragraph (e), the date must be at least 20 working days after the ACMA notifies the winning bidder under subsection (1).

 (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.

90  Issue of spectrum licences after payment of balance

  If a winning bidder pays the balance of the total winning price in accordance with the notice given under subsection 89(1), the winning bidder is entitled to be issued:

 (a) a single spectrum licence for all parts of the spectrum from 3400 MHz to 3575 MHz assigned to the lots (if any) allocated to the bidder (including any leftover lots); and

 (b) a single spectrum licence for all parts of the spectrum from 3700 MHz to 3800 MHz assigned to the lots (if any) allocated to the bidder.

Note: For the issue of spectrum licences, see section 62 of the Act.

91  Default

  If a winning bidder does not pay the balance of the total winning price in accordance with the notice given under subsection 89(1):

 (a) spectrum licences are not allocated to the winning bidder under this instrument; and

 (b) the allocation of spectrum licences in accordance with this instrument to other bidders is not affected; and

 (c) section 150 applies to each lot (and associated spectrum assigned to each lot), including any leftover lot, that, but for this section, would have been included in a spectrum licence allocated to the winning bidder.

Note: See section 155 for when certain breaches of this instrument have occurred, and section 159 in relation to other rights of the ACMA and the Commonwealth.

92  Publication of allocation results

 (1) The ACMA must announce or publish the following information about the allocation process after the end of the allocation period:

 (a) the names of the winning bidders in each auction;

 (b) the spectrum allocated to each winning bidder;

 (c) the winning price paid, or to be paid, by each winning bidder in relation to each auction;

 (d) the posted price of the lots of each product in the final clock round;

 (e) the residual price of each residual lot in the secondary stage (if any) of each auction;

 (f) the names of each bidder who is not a winning bidder in either auction.

 (2) Before the ACMA announces or publishes the information in subsection (1), the auction manager must notify each winning bidder, in writing, that:

 (a) the ACMA will announce or publish the information; and

 (b) the winning bidder’s confidentiality obligation under section 29 will end when the ACMA announces or publishes the information.

 (3) Unless all winning bidders agree in writing, the ACMA will not announce or publish any further information regarding the results of the auctions, unless required by law.

Part 6—Auction rules

Division 1—Rules for the primary stage

Subdivision A—Application

93  Application of Division

 (1) This Division applies to the 3.7 GHz auction and the 3.4 GHz auction.

Note: Subsection 60(1) requires the primary stage of an auction to be conducted in accordance with this Division.

 (2) The following lots are available in the primary stage of an auction:

 (a) for the 3.7 GHz auction—all of the lots of the 3.7 GHz products;

 (b) for the 3.4 GHz auction—all of the lots of the 3.4 GHz products.

Subdivision B—Arrangements for primary stage

94  Bid increment percentage for primary stage

Auction manager must set bid increment percentage

 (1) Before the first clock round, the auction manager must set a percentage (the bid increment percentage) for the lots of each product to be applied in calculating the clock price for the lots of a product in a clock round.

 (2) Before the first clock round, the auction manager must notify the bid increment percentage for the lots of each product to each bidder.

 (3) The bid increment percentage may be different for different products and may be different for the same product between different clock rounds.

Auction manager may change bid increment percentage during primary stage

 (4) The auction manager may, at any time during the primary stage, change the bid increment percentage for the lots of a product in a clock round.

 (a) tell each bidder (other than a bidder who did not enter a positive start demand for any product) in writing of the proposed change; and

 (b) ask each such bidder to provide comments on the proposal within the time (being not less than 1 hour) set by the auction manager; and

 (6) The auction manager must notify each bidder (other than a bidder who did not enter a positive start demand for any product) of the change before the clock round for which the change takes effect.

95  Eligibility requirement percentage for primary stage

Auction manager must set eligibility requirement percentage

 (1) Before the first clock round, the auction manager must set a percentage (the eligibility requirement percentage) to be applied in calculating the activity target during each clock round.

Note: For the activity target, see subsection 105(3).

 (2) Before the first clock round, the auction manager must notify the eligibility requirement percentage to each bidder.

 (3) The eligibility requirement percentage may be different for different clock rounds.

Auction manager may change eligibility requirement percentage during primary stage

 (4) The auction manager may, at any time during the primary stage, change the eligibility requirement percentage to be applied in calculating the activity target during a clock round.

 (a) tell each bidder (other than a bidder who did not enter a positive start demand for any product) in writing of the proposed change; and

 (b) ask each such bidder to provide comments on the proposal within the time (being not less than 1 hour) set by the auction manager; and

 (6) The auction manager must notify each bidder (other than a bidder who did not enter a positive start demand for any product) of the change before the clock round for which the change takes effect.

96  Scheduling of clock rounds

 (1) Clock rounds must start and end between 9.00 am and 5.00 pm on working days, other than a recess day.

 (2) The scheduling of clock rounds between those times is at the auction manager’s discretion.

 (3) There is no minimum or maximum length for a clock round, and no minimum or maximum length for the interval between clock rounds.

 (4) There is no upper or lower limit on the number of clock rounds per day.

 (5) Subject to sections 76 and 82, the auction manager (using the auction system) will indicate to each bidder for the first clock round of a given day the anticipated schedule of clock rounds for that day at least 1 hour before the start time of the first clock round of the day. However, the auction manager may, at any time, modify the schedule of clock rounds. If this occurs, the auction manager must tell each bidder in writing of the change as soon as practicable.

97  Recess days

 (1) The auction manager may declare a day to be a recess day (whether or not the day is a working day) on which there will be no clock rounds.

 (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 each bidder in writing of the recess.

98  Entries by auction manager before pre‑bidding round

  Before the pre‑bidding round, the auction manager must enter in the auction system the following information for each bidder:

 (a) the bidder’s eligibility points as at the time just before the start of the pre‑bidding round;

 (b) the bidder’s unused allocation limit for each product for the auction.

99  Information available for clock rounds of the primary stage

Information for the start of each clock round

 (1) Before the start time of each clock round, the auction manager must provide the following information to each bidder for that clock round, using the auction system:

 (a) the start time of the clock round;

 (b) the end time of the clock round;

 (c) for the lots of each product available for bidding in the clock round:

 (i) the opening price; and

 (ii) the clock price;

 (d) for each product, the number of lots calculated by subtracting the supply of the product from the sum of the number of lots in the start demands for the product for the clock round of all bidders (which might be zero, or a negative number);

 (e) the eligibility points of the bidder for the clock round (see section 104);

 (f) the bid increment percentage for each product for the clock round;

 (g) the eligibility requirement percentage for the clock round;

 (h) any other information the auction manager considers necessary or convenient to conduct the primary stage of the auction.

Posting of results from clock rounds

 (2) After the end of each clock round, the auction manager must provide the following information to each bidder for that clock round, using the auction system:

 (a) the posted prices for the lots of each product in the clock round;

 (b) the posted demands of the bidder for the lots of each product in the clock round;

 (c) any other information the auction manager considers necessary or convenient to conduct the primary stage of the auction.

Note: Subdivision D of this Division sets out the processing algorithm used to determine posted prices and posted demands.

Subdivision C—Bidding in the primary stage

100  Availability of lots in clock rounds of the primary stage

 (1) Each lot of a product is available for bidding in the first clock round, and in each subsequent clock round until the final clock round.

Note: Bidding does not close on a single product—all products close together in the final clock round. The clock price, for a lot of a product, pauses if excess demand is not greater than zero on lots of the product after the clock round and no decrease bid was applied in full or in part for lots of the product during the bid processing for the clock round.

 (2) Subject to this Division, each bidder may make a bid on lots of a product available for bidding during a clock round.

Note: Section 102 sets out the general rules for a bidder to make a bid in a clock round. For the validity of bids, see section 103.

101  Pre‑bidding round

Entries by bidders

 (1) After the auction manager has made the entries in section 98 and during the pre‑bidding round, a bidder may, using the auction system:

 (a) enter a number of lots of each product for the first clock round, subject to subsection (2); and

 (b) on a product by product basis, elect to adopt the minimum spectrum requirement for the primary stage.

Note 1: A bidder may also be taken to make an entry in the circumstances specified in section 61.

Note 2: The minimum spectrum requirement is 2 lots.

Validity rules for start demand in pre‑bidding round

 (2) For the purposes of paragraph (1)(a), the number of lots of a product entered in the auction system under paragraph (1)(a) by a bidder is valid if:

 (a) the number of lots entered does not exceed the bidder’s unused allocation limit for the auction for the product; and

 (b) if the bidder elected to adopt the minimum spectrum requirement for the product—the number of lots entered is not 1; and

 (c) the number of lots entered does not exceed the supply of the lots of the product; and

 (d) taking into account the number of lots entered in the auction system by the bidder for all products:

 (i) the sum of the lot ratings for those lots equals or is less than the bidder’s eligibility points just before the start of the pre‑bidding round; and

 (ii) the number of lots entered would not result in a person exceeding the allocation limit for the area of any product.

 (3) If the number of lots of a product recorded in the auction system for a bidder under paragraph (1)(a) is valid, that number is the bidder’s start demand for lots of the product for the first clock round.

Note: Because of the way bids are processed (in particular decrease bids) it is possible that the bidder’s start demand for lots of a product for the first clock round will be the bidder’s posted demand for that product in the final clock round, resulting in the bidder being allocated a spectrum licence for the lots in its start demand. This can be the case even if the bidder made only decrease bids for lots of the product in all the clock rounds.

Entries to be made known to each bidder

 (4) After the end of the pre‑bidding round, the auction manager must provide the following information to each bidder, using the auction system:

 (a) the bidder’s start demands for the lots of each product for the first clock round;

 (b) for each product, whether the bidder elected to adopt the minimum spectrum requirement for the primary stage;

 (c) the bidder’s eligibility points as at the time immediately after the pre‑bidding round (see items 2 and 5 of the table in section 104);

 (d) for each product, the difference between the sum of the number of lots in the start demand for the first clock round for all bidders and the supply of the product.

102  Making bids

 (1) A bidder is entitled to bid in a clock round if the bidder has eligibility points remaining for the clock round (see section 104).

 (2) A bidder may not make more than one bid for the lots of each product in each clock round.

 (3) A bid for a product in a clock round of the primary stage consists of:

 (a) a request for a number of lots of the product in the clock round (expressed as a total number of lots requested, not as a change to the start demand); and

 (b) a price entered by the bidder in relation to each lot of the product for the clock round.

 (4) Except where subsection 61(1) or (2) applies, a bidder’s bid is taken to have been made in a clock round when the bid has passed data validation checks that are performed by the auction system.

Note: Subsection 61(1) allows the auction manager to permit a bid to be made other than by using the auction system, in certain circumstances. Subsection 61(2) allows the auction manager to permit a bid to be made after a clock round has ended, in certain circumstances.

 (5) A bidder may change, delete or replace a bid in the auction system during a clock round as often as desired, subject to the data validation checks that are performed by the auction system. The bid for the lots of a product that will be treated as binding for a bidder is the bid in the auction system at the end time of the clock round.

Note: A bidder may also be taken to make a bid in the circumstances specified in section 61.

103  Validity of bids

 (1) A bid in a clock round is valid if:

 (a) except where subsection 61(2) applies, the bid is received by the auction system between the start time and end time of the clock round; and

 (b) subsection (2), (4) or (6) of this section applies to the bid.

Note: Subsection 61(2) allows the auction manager to permit a bid to be made after a clock round has ended, in certain circumstances.

Maintain bid

 (2) This subsection applies to a bid for a product in a clock round if:

 (b) that number of lots is the same as the bidder’s start demand for the product for the clock round; and

 (c) the bid price is the same as the clock price for the clock round.

 (3) A valid bid to which subsection (2) applies is a maintain bid for the product for the clock round.

Note: In some circumstances, a bidder is taken to have made a maintain bid: see paragraph (8)(b) of this section and paragraph 59(1)(b).

Increase bid

 (4) This subsection applies to a bid for a product in a clock round if:

 (b) that number of lots exceeds the bidder’s start demand for the product for the clock round; and

 (c) the number of lots does not exceed the bidder’s unused allocation limit for the product for the auction; and

 (d) the bid price:

 (i) is a multiple of one hundred dollars; and

 (ii) is not less than the opening price and not greater than the clock price for the lots of the product for the clock round; and

 (e) the bid would not result in the bidder exceeding the allocation limit for the area of any product; and

 (f) the number of lots requested:

 (i) does not exceed the number of lots for the supply of the product; and

 (ii) if the bidder elected to adopt the minimum spectrum requirement—is at least 2; and

 (g) the sum of the lot ratings for all the lots of all products requested by the bidder in the clock round does not exceed the bidder’s eligibility points for the clock round.

Note: For paragraph (e), section 13 requires regard to be had to all bids placed by the bidder in the clock round.

 (5) A valid bid to which subsection (4) applies is an increase bid for the product for the clock round.

Decrease bid

 (6) This subsection applies to a bid for a product in a clock round if:

 (b) that number of lots falls short of the bidder’s start demand for the product for the clock round, but is not less than zero; and

 (c) the bid price:

 (i) is a multiple of one hundred dollars; and

 (ii) is not less than the opening price and not greater than the clock price for the lots of the product for the clock round; and

 (d) if the bidder elected to adopt the minimum spectrum requirement—the number of lots requested is not 1.

 (7) A valid bid to which subsection (6) applies is a decrease bid for the product for the clock round.

Deemed bids

 (8) If a bidder does not make a bid, or does not make a valid bid, for lots of a product in a clock round, the bidder is taken to have made:

 (a) if the bidder’s start demand for the product is zero lots—a maintain bid for the product for the clock round; or

 (b) if the bidder’s start demand for the product is one or more lots—a decrease bid for zero lots of the product in that clock round, at the opening price for the lots of the product for that clock round.

Note 1: The decrease bid mentioned in paragraph (b) may affect the bidder’s eligibility points for the next clock round.

Note 2: During the bid processing for a clock round, if a decrease bid is applied in part leaving a remainder of the decrease bid, or a decrease bid is rejected, a bidder will still have a posted demand for lots of a product for the clock round to which the decrease bid relates.