37 Initial eligibility points and selecting minimum spectrum requirements
(1) Subject to subsection (3), the maximum number of initial eligibility points that an applicant may specify in its completed eligibility nomination form is the sum of the lot ratings for the number of lots of each product, up to the applicant’s allocation limits (when expressed in eligibility points):
(a) applicable to the product, other than the Perth lower band product and the Perth upper band product; or
to be auctioned.
Note 1: A person’s ability to use eligibility points in the auction is restricted by the allocation limits in sections 11 and 12.
Note 2: The spectrum licence limits direction sets limits on the allocation of spectrum licences to a single person, or a specified group of persons, in the Perth area (among other areas). However, the lots in the Perth area are divided into two different products: the Perth lower band product and the Perth upper band product. For the purposes of the allocation limits, the two products are treated as just one product. For all other purposes, they are to be treated as two products. See subsection 11(2).
(2) The minimum spectrum requirements for the lots of each product to be auctioned that an applicant may select in its completed eligibility nomination form must be from the options set by the ACMA under paragraph 28(1)(c). If a selection is not made for a product, the applicant is taken to have no minimum spectrum requirement for the lots of that product.
Note: An applicant may select a minimum spectrum requirement for any product, even if the applicant has not specified a start demand for the lots of a product for the first clock round of the primary stage in its eligibility nomination form.
(3) If:
(a) an applicant’s start demand for lots of one or more products is reduced in accordance with subsection 36(2); and
(b) the applicant specified, in its completed eligibility nomination form, initial eligibility points that are greater than the sum of the lot ratings for the number of lots of each product for which the applicant has a start demand, after the process in subsection 36(2) is completed;
then:
(c) the applicant’s initial eligibility points are reduced to the sum of the lot ratings for the number of lots of each product for which the applicant has a start demand, after the process in subsection 36(2) is completed; and
(d) this reduction does not affect the amount calculated in accordance with subsection 38(2).
38 Eligibility payment or deed of financial security required for initial eligibility points
(1) An applicant must, before the eligibility deadline, secure initial eligibility points by:
(a) making an eligibility payment of an amount to the ACMA on behalf of the Commonwealth; or
(b) giving the ACMA on behalf of the Commonwealth a deed of financial security, which has been completed in the approved form and executed, for an amount; or
(c) making an eligibility payment of part of an amount and giving a deed of financial security for the remainder.
Note: For information on how an eligibility payment is made, see section 9. For information on how a deed of financial security is given, see section 7 and subsections (7), (8) and (9).
(2) The amount required to secure the initial eligibility points specified by the applicant in its completed eligibility nomination form is calculated by multiplying the specified number of initial eligibility points by the dollar value of initial eligibility points set by the ACMA under paragraph 28(1)(a).
(3) If an applicant makes an eligibility payment or gives a deed of financial security (or both) for an amount less than the amount under subsection (2), 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 the case may be, for less than the amount under subsection (2); and
(b) the applicant must, before the eligibility deadline or no later than 3 working days after the date of the notice (whichever is the later), make an eligibility payment or give a deed of financial security (or both) for the remainder of the amount under subsection (2).
(4)If the applicant does not comply with the notice given under subsection (3):
(a) subject to paragraph (c), the number of initial eligibility points secured by the applicant is calculated by dividing the amount paid or secured by deed by the dollar value of initial eligibility points set by the ACMA under paragraph 28(1)(a), and rounding down to the nearest whole point or zero if there is no remaining whole point; and
(b) the start demands of the applicant are reduced commencing with a lot or lots of a product with the lowest lot rating being removed from the applicant’s start demands until the sum of the lot ratings for the remaining start demands of the applicant is not greater than the initial eligibility points secured by the applicant calculated under paragraph (a); and
(c) if, after the steps in paragraphs (a) and (b) are taken, the difference between:
(i) the initial eligibility points secured by the applicant (the provisional secured points); and
(ii) the sum of the lot ratings for the number of lots of each product for which the applicant has a start demand;
is greater than zero – that difference is subtracted from the provisional secured points to give the number of initial eligibility points secured by the applicant.
(5) If:
(a) no initial eligibility points, in accordance with paragraph (4)(a) or (4)(c), remain; or
(b) no start demands, in accordance with paragraph (4)(b), remain:
the applicant is taken to have withdrawn its application.
(6) The ACMA must tell an applicant in writing if:
(a) the applicant has had its initial eligibility points and start demands calculated in accordance with subsection (4); or
(b) the applicant is taken to have withdrawn its application under subsection (5).
(7) A deed of financial security must be executed by:
(a) an authorised deposit-taking institution within the meaning given by 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.
(8) 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.
(9) If a deed of financial security is given to the ACMA on behalf of the Commonwealth by email or fax before the eligibility deadline, the original deed must be received by the ACMA no later than 3 working days after the eligibility deadline (or, if the ACMA agrees to a later time, the agreed time) for the deed to be taken to have been given to the ACMA on behalf of the Commonwealth.
(10) An applicant is taken to have withdrawn its application if:
(a) the applicant fails to make an eligibility payment or give a deed of financial security before the eligibility deadline; or
(b) the ACMA is not satisfied that the person executing a deed of financial security is a person mentioned in subsection (7).
(11) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (10).