67 Issue of spectrum licence after payment of balance of winning price
If a winning bidder pays the balance of the winning price in accordance with section 66, the bidder is entitled to be issued a spectrum licence for each part of the spectrum assigned to the lots allocated to the bidder.
Note 1: For the issue of spectrum licences, see section 62 of the Act.
Note 2: Sections 60 and 62 may affect the ability of the ACMA to issue a spectrum licence to a winning bidder.
68 Default
If a winning bidder does not pay the balance of the winning price in accordance with section 66:
(a) the spectrum licence is not allocated to the winning bidder; and
(b) the allocation of spectrum licences under this instrument to other applicants is not affected; and
(c) section 70 applies to each lot (and associated spectrum assigned to each lot) that, but for this section, would have been included in a spectrum licence allocated to the winning bidder.
Note: See section 75 for when certain breaches of this instrument have occurred and section 79 in relation to other rights of the ACMA and the Commonwealth.
69 Publication of auction results
The ACMA must announce or publish the following information about the auction after the end of the auction period:
(a) the names of winning bidders;
(b) the spectrum allocated to each winning bidder;
(c) the winning price paid, or to be paid, by each winning bidder.
Part 7—Miscellaneous
70 Unallocated spectrum
Parts of the spectrum that are available in the auction but not allocated in the primary stage and not allocated in the secondary stage (if any) may be later made available for allocation by a procedure to be determined by the ACMA.
Note: The ACMA may make determinations under section 60 of the Act about allocations by auction or by other procedures.
71 Bidders must not misuse auction system
(1) A bidder must only access and use the auction system in accordance with the information about access and use provided under paragraphs 41(2)(c) and 41(2)(d).
(2) A bidder must not attempt to interfere with, disrupt or damage the auction system.
(3) A bidder must not use or attempt to use the auction system to breach a law of the Commonwealth.
72 ACMA may obtain information from applicants and bidders
(1) If the ACMA has reason to believe that an applicant or bidder has information or documents that are relevant to the performance of any of the ACMA’s functions or exercise of its powers under this instrument, the ACMA may, by written notice, require the applicant or bidder:
(a) to give to the ACMA, within the period and in the manner and form specified in the notice, any such information; or
(b) to produce to the ACMA, within the period and in the manner specified in the notice, any such documents.
Note: If a requirement in a notice given under this subsection is breached, the ACMA may take action under section 75.
(2) The ACMA may vary a notice given under subsection (1).
73 Use of information and documents by ACMA
(1) The ACMA may use information or documents it obtains in the performance of its functions or exercise of its powers under this instrument:
(a) for the purposes of this instrument, including disclosing or publishing information or documents as provided for in this instrument; and
(b) in relation to a spectrum licence to be issued, or issued, as a result of the auction.
(2) The ACMA may retain possession of a document or other item given to the ACMA for the purposes of this instrument for as long as necessary for the performance of the ACMA’s functions and exercise of its powers under this instrument or the Act.
(3) The ACMA may disclose information or documents in accordance with Part 7A of the Australian Communications and Media Authority Act 2005 or as otherwise authorised by law.
74 ACMA to provide information to ACCC on request
(1) The ACCC may make a request to the ACMA for information in relation to the auction or in relation to an applicant or bidder.
(2) The ACMA must provide the requested information to the ACCC if the ACMA has the information.
(3) Without limiting subsection (1), information that the ACCC may request includes the following:
(a) completed application forms and completed eligibility nomination forms;
(b) deeds of confidentiality;
(c) information about an applicant’s associates and affiliations (including statutory declarations and statements made under this instrument);
(d) information about any breaches of confidentiality obligations;
(e) information about bidding during the auction;
(f) information about the outcomes of the procedures in Part 6.
75 Retention of eligibility payment or enforcement of deed of financial security for breach of auction procedures
(1) The ACMA on behalf of the Commonwealth may retain an eligibility payment made by an applicant or bidder, or enforce a deed of financial security given by an applicant or bidder, if:
(a) the ACMA is satisfied that:
(i) the applicant or bidder, or a related person of the applicant or bidder, or a contractor of the applicant or bidder, breached a provision of this instrument; and
(ii) the breach affected, or may have affected, the outcome of the auction; or
(b) the ACMA is satisfied that the applicant or bidder, or a related person of the applicant or bidder, or a contractor of the applicant or bidder, breached the confidentiality obligation under section 18 after the auction period (but before the confidentiality obligation came to an end); or
(c) the ACMA is satisfied that the bidder breached section 52; or
(d) the bidder is a winning bidder who failed to give the statement required under section 58; or
(e) the bidder is a winning bidder who failed to pay the balance of the winning price as required under section 66; or
(f) the applicant or bidder failed to comply with a requirement in a notice given under subsection 72(1).
(2) The ACMA must, in writing, notify the applicant or bidder of a decision under subsection (1) and the nature of the breach or failure before the later of:
(a) 6 months after the end of the auction period; and
(b) 6 months after the day on which the breach or failure mentioned in subsection (1) occurred.
(3) An eligibility payment retained under this section, or an amount obtained through enforcement of a deed of financial security under this section, is forfeited to the Commonwealth unless the Federal Court orders the return of the amount under section 77.
76 Effect of retention on winning bidders
If the ACMA makes a decision under subsection 75(1) in relation to a winning bidder:
(a) despite sections 65 and 67, the ACMA must not issue a spectrum licence to the bidder; and
(b) the spectrum assigned to the lots allocated to the bidder at auction is taken to be unallocated.
77 Application to Federal Court for return of retained amount
(1) An applicant or bidder who has been notified by the ACMA under subsection 75(2) may, within 1 year of receiving the notice, apply to the Federal Court for return of all or part of an eligibility payment or an amount obtained through enforcement of a deed of financial security.
(2) On application, the Federal Court may:
(a) if the Court is not satisfied that the applicant or bidder committed the breach identified in the notice given by the ACMA – order the return of all of the amount retained by the ACMA; or
(b) if the Court is satisfied that the applicant or bidder committed the breach, but considers that it would be disproportionate for the full amount to be retained – order the return of part of the amount retained by the ACMA.
(3) This section does not enable the Federal Court to order that a spectrum licence be issued to an applicant or bidder.
(4) This section does not remove any existing jurisdiction of a court.
78 No liability of the ACMA, etc.
Neither the ACMA, the Commonwealth, nor the auction manager is liable to pay damages or costs arising from an act or omission of any person in relation to the auction procedures set out in this instrument.
79 Other rights not affected
This instrument does not limit any other right of action or remedy which the ACMA or the Commonwealth has against a person.
80 Auction manager may delegate functions and powers
The auction manager may delegate any of the auction manager’s functions and powers under this instrument to:
(a) a member within the meaning given by the Australian Communications and Media Authority Act 2005; or
(b) a member of the ACMA staff that:
(i) holds, or is acting in, an Executive Level 1 or 2 position or an equivalent position; or
(ii) is an SES employee or acting SES employee.
Note: SES employee and acting SES employee are defined in the Public Service Act 1999 and referred to in the Acts Interpretation Act 1901.
Schedule 1—Rules for the primary stage of the auction
(subsections 4(1) and 49(1))
This Schedule applies to all lots of each product that are available in the primary stage of the auction.
Note: If all lots of all products are allocated in the primary stage, there is no secondary stage. See also subclause 1 of Schedule 2 as to a lot of a product that may be available in the secondary stage.
(1) In this Schedule:
active: see subclause 11(2).
activity target: see subclause 11(1).
aggregate demand, for lots of a product, means either:
(a) before the first clock round – the total of the number of lots of the product recorded in the register as the start demands for all bidders under paragraph 40(2)(f) of this instrument; or
(b) for a clock round – the total of the posted demands for the lots of the product of all bidders.
bid, in a clock round, means:
(a) an increase bid; or
(b) a decrease bid; or
(c) a maintain bid.
bid increment percentage: see subclause 4(1).
bid price, for a lot of a product for a clock round, means an amount that is:
(a) equal to or greater than the opening price; and
(b) less than or equal to the clock price.
clock price, for a lot of a product for a clock round, means the sum of:
(a) the opening price for the lots of the product; and
(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.
decrease bid means a request to decrease the start demand of a bidder for lots of a product, by entering a negative number for the demand change for the lots of the product, at a bid price.
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 subclause 15(2).
eligibility points, in relation to a bidder, means the number of points the bidder may use in relation to bids on lots of each product for a clock round.
Note: For eligibility points, see clauses 11, 12 and 13.
eligibility requirement percentage: see subclause 4(4).
excess demand, for lots of a product for a clock round, means the difference between:
(a) the aggregate demand; and
(b) the supply.
Note: The excess demand may be a positive number or a negative number or zero.
final clock round: see clause 16.
increase bid means a request to increase the start demand of a bidder for lots of a product, by entering a positive number for the demand change for the lots of the product, at a bid price.
maintain bid means a request to maintain the start demand of a bidder for lots of a product in a clock round, which:
(a) at the time the bid is requested – is taken to be for any price between the opening price and the clock price for the clock round; and
(b) after the processing algorithm is given effect after the clock round – is taken to be at the posted price for the lots of the product for the clock round.
Note: The actual price will be the posted price for the current clock round.
opening price, for a lot of a product for a clock round, means either:
(a) for the first clock round – the starting price for the lots of the product; or
Note: For starting prices, see paragraph 28(1)(d) of this instrument.
(b) for any clock round other than the first clock round – the posted price for the lots of the product for the previous clock round.
posted demand, for a bidder for lots of a product for a clock round, means:
(a) for a bidder who requested an increase bid or a decrease bid for the lots of the product in the clock round – the number of lots of the product determined by the processing algorithm after the end time of the clock round;
(b) for a bidder who requested a maintain bid for the lots of the product in the clock round – the start demand for the bidder for the lots of the product for that clock round.
posted price, for a lot of a product for a clock round, means the amount determined by the processing algorithm after the end time of the clock round, which must be:
(a) equal to or greater than the opening price for the lots of the product for the clock round; and
(b) less than or equal to the clock price for the lots of the product for the clock round.
Note: See subclause 2A(6).
price point, for a lot of a product for a clock round, means a percentage calculated as the quotient of:
(a) the difference between the bid price and the opening price; and
(b) the difference between the clock price and the opening price.
Note: Paragraph (a) is the numerator. Paragraph (b) is the denominator.
primary price: see subclause 17(3).
primary winner: see subclause 17(1).
processing algorithm: see clause 2A.
start demand, for a bidder for lots of a product for a clock round, means either:
(a) for the first clock round – the number of lots of the product recorded in the register for the bidder under paragraph 40(2)(f) of this instrument; or
(b) for any clock round other than the first clock round – the posted demand of the bidder for the lots of the product for the previous clock round.
starting price: see paragraph 28(1)(d) of this instrument.
supply, for lots of a product before the first clock round or for a clock round, means the number of lots of the product that are available in the primary stage of the auction.
Note: For the definition of size, see subsection 5(2) of this instrument.
(2) In this Schedule, a reference to the total value of the lots, in eligibility points, is a reference to the sum of the lot ratings for the lots.
(3) In this Schedule, after a decrease bid is entered, a reference to the decrease bid or the number of lots for the decrease bid is a reference to the absolute value of the decrease bid or absolute value of the number of lots for the decrease bid.
Note: This means that after a negative number is entered for a decrease bid, the provisions in this Schedule use the positive value for that number.