Division 7 Preparation for bidding and scheduling rounds of the auction
43 Preparation for bidding
The ACMA must give each bidder an opportunity to trial the auction system before the auction commences.
44 Security of auction
(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 during the auction period.
(2) The 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 auction period.
45 Auction rounds
(1) The rounds of the auction for the primary stage, secondary stage and assignment stage are to be scheduled.
(2) The first clock round of the primary stage of the auction starts on the date and time for that clock round set by the auction manager under subsection 46(1).
46 First and second clock rounds
(1) After the eligibility deadline, the auction manager must set the start date and start time of the first and second clock rounds of the primary stage of the auction.
(2) The auction manager must notify bidders of the start date and start time of the first and second clock rounds of the primary stage at least 10 working days before the start date of the first clock round.
Part 5—Auction procedures
Division 1 Procedures to be applied
47 Auction stages
(1) The auction consists of a primary stage, a secondary stage (if required) and an assignment stage.
(2) The primary stage is made up of:
(a) the bidder’s start demands for the lots of each product for the first clock round; 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) one or more rounds for the making of bids on any residual lot of a product that is available in the secondary stage of the auction and the results of the round; and
(b) 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 the making of bids for the assignment of frequency ranges to lots of a product (or group of products) that were allocated in the primary stage or secondary stage; and
Division Div 7 - Radiocommunications (Spectrum Licence Allocation — 3.6 GHz Band) Determination 2018 - Preparation for bidding and scheduling rounds of the auction | Zoe
(b) the determination of the winning assignment bids for the frequency ranges assigned to the lots of each product (or group of products) that were allocated to a primary winner or secondary winner and of the associated total assignment price after all assignment rounds are completed.
48 Procedures if only one bidder
(1) If there is only one bidder in the auction, the procedures to be applied for allocating lots of a product and assigning frequency ranges are as follows:
(a) there will be one clock round in the primary stage using the auction system in which the bidder may make a bid for the lots of each product;
(b) 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: In this situation, the assignment prices will be zero, see subclause 8(2) of Schedule 3.
(2) The ACMA must notify the bidder as soon as reasonably practicable after the eligibility deadline that it is the only bidder, and that the procedures in this section apply.
49 Rounds of the auction
(1) The clock rounds for the primary stage of the auction are to be conducted in accordance with the rules in Schedule 1.
(2) The rounds for the secondary stage of the auction, if required, are to be conducted in accordance with the rules in Schedule 2.
(3) The assignment rounds for the assignment stage of the auction are to be conducted in accordance with the rules in Schedule 3.
50 Auction manager’s discretion to accept bids
(1) The auction manager may permit a bidder to make a bid for a round in the auction, in the primary stage or secondary stage or assignment stage, by a method other than the auction system if the auction manager is satisfied that the bidder is not able to make a bid for the round using the auction system.
(2) The auction manager may permit a bidder to make a bid for a round in the auction, in the primary stage or secondary stage or assignment stage, after the end time of the round if the auction manager is satisfied that the bidder could not make the bid during the round because of technical or communication problems.
(3) A 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 bid under subsection (2) after information about the outcome of the relevant round has been given to bidders.
Note: See clause 8 of Schedule 1, clause 5 of Schedule 2 and clauses 7 and 8 of Schedule 3 for details of the information about the outcome of a round that will be given to bidders.
51 Action that auction manager may take in exceptional circumstances
(1) If the auction manager is satisfied that the auction is affected by exceptional circumstances, the auction manager may:
(a) make corrections to:
(i) the results of the round of the auction that last ended; and
(ii) information received by a bidder after that round; or
(b) stop the current round of the auction and restart the round; or
(c) cancel the results of one or more rounds of the auction and restart the auction from the point before those rounds; or
(d) cancel the results of all the rounds of the auction in the primary stage or the secondary stage or the assignment stage and restart the auction from the first round of the relevant stage; or
(e) stop the auction.
(2) For this section, exceptional circumstances include:
(a) a significant technical difficulty with the auction system; or
(b) a breach of the confidentiality obligation in section 18.
(3) Subsection (2) does not limit what might constitute exceptional circumstances.
(4) This section applies to clock rounds in the primary stage, rounds in the secondary stage and assignment rounds in the assignment stage of the auction.
Division 2 Affiliations during auction
52 Affiliation between bidders during auction period not permitted
A bidder must not be affiliated with another bidder during the auction period.
Note: If the ACMA is satisfied that a breach of this provision has occurred, the ACMA may take action under section 75. Section 75 enables the ACMA to retain an eligibility payment if it is satisfied certain breaches of this instrument have occurred.
53 Requirement to report affiliation
(1) If, at any time during the auction 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.
(2) If, at any time during the auction period, a bidder believes that it may be an affiliate of an existing relevant band licensee, the bidder must immediately tell the ACMA in writing the identity of the existing relevant band licensee and give details of the affiliation.
(3) Subsection (2) does not apply in relation to an affiliation between a bidder and an existing relevant band licensee if the ACMA gave the bidder a notice in writing in relation to the affiliation under section 36 of this instrument.
54 Auction continues despite possible affiliation
If the ACMA becomes aware during the auction period that two or more bidders may be affiliated, or that a bidder may be affiliated with an existing relevant band licensee, the auction is to continue and the bidders may continue to participate in the auction.
55 ACMA consideration of affiliation
(1) If the ACMA has reason to believe that two or more bidders are affiliated during the auction period, or that a bidder is affiliated with an existing relevant band licensee, the ACMA must, in writing, notify the bidders or bidder and tell them the basis on which the ACMA believes that the affiliation exists.
(2) If a bidder gave the ACMA information under section 53 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.
Part 6—Procedures after auction
Division 1 Confirmation of auction results
56 Notice and refunds to unsuccessful bidders
(1) As soon as practicable after the end of the auction period, the ACMA must notify each bidder that is not a winning bidder that:
(a) the bidder was unsuccessful in the auction; and
(b) the bidder’s confidentiality obligations under section 18 have ended.
(2) If the bidder made an eligibility payment, the ACMA on behalf of the Commonwealth must refund the eligibility payment no later than 6 months after giving the notice under subsection (1) unless the ACMA has made a decision to retain the eligibility payment under section 75.
Note: Section 75 enables the ACMA to retain an eligibility payment if it is satisfied certain breaches of this instrument have occurred.
57 Notice and refunds to withdrawn applicants
(1) As soon as practicable after the end of the auction period, the ACMA must notify each applicant that withdrew, or was taken to have withdrawn its application, that the applicant’s confidentiality obligations under section 18 have ended.
(2) If an applicant that withdrew, or was taken to have withdrawn, its application made an eligibility payment, the ACMA on behalf of the Commonwealth must refund the eligibility payment no later than 6 months after giving the notice under subsection (1) unless the ACMA has made a decision to retain the eligibility payment under section 75.
Note: Section 75 enables the ACMA to retain an eligibility payment if it is satisfied certain breaches of this instrument have occurred.
58 Winning bidder to make statement about affiliations
(1) As soon as practicable after the end of the auction period, the ACMA must:
(a) give each winning bidder details about the identity of all other winning bidders and all existing relevant band licensees; and
(b) ask the bidder to make a statement whether the bidder is an affiliate of another winning bidder or of an existing relevant band licensee and, if so, identifying the other bidder or existing relevant band licensee and giving details of the affiliation.
(2) The ACMA must state a deadline, at least 5 working days after the date of the request, before which the statement must be received by the ACMA.
(3) A winning bidder must give the ACMA the statement by the deadline.
Note 1: Giving false or misleading information is a serious offence under section 137.1 of the Criminal Code Act 1995.
Note 2: Section 136.1 of the Criminal Code Act 1995 also makes it an offence to make a false or misleading statement in connection with an application for a licence.
59 Notification that winning bidders are affiliated
If the ACMA is satisfied that two or more winning bidders have become affiliated after the auction period (but were not affiliated during the auction period), the ACMA must, in writing, notify the bidders and tell them the basis on which the ACMA is satisfied the bidders are affiliated.
60 Consequences of affiliation between bidders
(1) If the ACMA notifies two or more winning bidders under section 59 that it is satisfied the bidders are affiliated, the ACMA must not issue spectrum licences to the bidders that would exceed the allocation limits:
(a) applicable to a product, other than the Perth lower band product and the Perth upper band product; or
(b) applicable to the Perth combined products.
(2) If the issue of spectrum licences to the affiliated bidders for all the lots of a product the bidders were allocated at auction would exceed the allocation limits applicable to the product (other than the Perth lower band product and the Perth upper band product) or applicable to the Perth combined products, the bidders may give a direction in writing to the ACMA specifying how spectrum is to be allocated between the bidders up to the allocation limits applicable to the product (other than the Perth lower band product and the Perth upper band product) or applicable to the Perth combined products.
(3) The direction must be given jointly by the affiliated bidders and must be given to the ACMA within 5 working days after the bidders received notification under section 59.
(4) If the ACMA does not receive a direction within those 5 working days, the ACMA may, for any part of the spectrum where the lots of a product allocated to the affiliated bidders exceed the allocation limits applicable to the product (other than the Perth lower band product and the Perth upper band product) or applicable to the Perth combined products, choose at its discretion how to allocate spectrum to each bidder up to the allocation limits applicable to the product (other than the Perth lower band product and the Perth upper band product) or applicable to the Perth combined products.
(5) A frequency range can be assigned to a bidder under this section from any of the frequency ranges assigned to the lots of a product (or group of products) allocated at auction to any of the affiliated bidders.
(6) Spectrum in excess of the allocation limits:
that is not allocated under subsection (2) or (4) is taken to be unallocated.
(7) A winning bidder must pay the full balance of the winning price for all lots allocated (and frequency ranges assigned to the lots) to the bidder in the auction, despite receiving a smaller allocation as a result of this section.
Note: 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).
61 Notification that winning bidder is affiliated with existing relevant band licensee
(1) If the ACMA is satisfied that a winning bidder is affiliated with an existing relevant band licensee, the ACMA must, in writing, notify the winning bidder and tell it the basis on which the ACMA is satisfied the winning bidder is affiliated with the existing relevant band licensee.
(2) If the ACMA makes a decision under subsection (1) in relation to a winning bidder that was notified under section 59, the ACMA must not notify the winning bidder under subsection (1) until the procedures in section 60 have been completed in relation to the winning bidder.
62 Consequences of affiliation with existing relevant band licensee
(1) If the ACMA notifies a winning bidder under section 61 that it is satisfied the winning bidder is affiliated with an existing relevant band licensee, the ACMA must not issue spectrum licences to the winning bidder that would exceed the winning bidder’s allocation limits:
(b) applicable to the Perth combined products.
(2) If the issue of a spectrum licence to the winning bidder for all the lots of a product the winning bidder was allocated at auction would exceed the winning bidder’s allocation limits applicable to the product (other than the Perth lower band product and the Perth upper band product) or applicable to the Perth combined products:
(a) if the winning bidder did not receive a notice under section 59 – the winning bidder may give a direction in writing to the ACMA specifying how spectrum is to be removed from the winning bidder’s allocation of lots of the relevant product;
(b) if two or more winning bidders received a notice under section 59, and each is affiliated with the existing relevant band licensee – the winning bidders may give a direction in writing to the ACMA specifying how spectrum is to be allocated between the winning bidders up to the allocation limits:
(i) applicable to the product, other than the Perth lower band product and the Perth upper band product; or
(ii) applicable to the Perth combined products.
(3) A direction under paragraph (2)(b) must be given jointly by the winning bidders.
(4) A direction under paragraph (2)(a) or 2(b) must be given to the ACMA within 5 working days after the winning bidder or winning bidders received notification under section 61.
(5) If the ACMA does not receive a direction within those 5 working days:
(a) if the direction would have been given under paragraph (2)(a) – the ACMA may, for any part of the spectrum where the lots of a product allocated to the winning bidder exceeds the winning bidder’s allocation limits applicable to the product (other than the Perth lower band product and the Perth upper band product) or applicable to the Perth combined products, choose at its discretion how to allocate spectrum to the winning bidder up to the winning bidder’s allocation limits applicable to the product (other than the Perth lower band product and the Perth upper band product) or applicable to the Perth combined products;
(b) if the direction would have been given under paragraph (2)(b) – the ACMA may, for any part of the spectrum where the lots of a product allocated to the winning bidders exceed the allocation limits applicable to the product (other than the Perth lower band product and the Perth upper band product) or applicable to the Perth combined products, choose at its discretion how to allocate spectrum to each winning bidder up to the allocation limits applicable to the product (other than the Perth lower band product and the Perth upper band product) or applicable to the Perth combined products.
(6) If paragraph (2)(b) applies in relation to two or more winning bidders, a frequency range can be assigned to one of those winning bidders under this section from any of the frequency ranges assigned to the lots of a product (or group of products) allocated at auction to any of the affiliated winning bidders.
(7) Spectrum in excess of the winning bidder’s allocation limits:
that is not allocated under subsection (2) or (5) is taken to be unallocated.
(8) A winning bidder must pay the full balance of the winning price for all lots allocated (and frequency ranges assigned to the lots) to the winning bidder in the auction, despite receiving a smaller allocation as a result of this section.
Note: 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).
Division 2 Winning prices, payment and issue of spectrum licences
Note: This Division is made under section 294 of the Act and is disallowable under section 42 of the Legislation Act 2003.
63 Winning price and balance of winning price
(1) For a winning bidder, the winning price is the total of:
(a) the primary price; and
(b) the secondary price (if any); and
(c) the total assignment price (if any);
for the lots allocated (and frequency ranges assigned to the lots) to the bidder in the auction.
Note: 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.
(2) For a winning bidder, the balance of the winning price is the winning price minus any eligibility payment made by the bidder under section 38.
64 Results of the auction
(1) After the winning bidders and winning prices are determined, the auction manager must tell each winning bidder:
(a) the number of lots of each product allocated to the winning bidder;
(b) the frequency ranges assigned to the lots allocated to the winning bidder; and
(c) the winning price to be paid by the winning bidder for the lots allocated and frequency ranges assigned to the lots allocated.
(2) After the winning bidders and winning prices are determined, the auction manager must tell all bidders:
(a) the number of winning bidders in the auction; and
(b) the frequency ranges for each product in relation to the lots allocated in the auction.
65 Sufficient eligibility payment – issue of spectrum licence without further payment
(1) If the balance of the winning price for a winning bidder is an amount less than zero:
(a) the ACMA on behalf of the Commonwealth must refund the eligibility payment in excess of the winning price; and
(b) the bidder is entitled to be issued a spectrum licence for each part of the spectrum assigned to the lots allocated to the bidder without further payment.
(2) If the balance of the winning price for a winning bidder is zero, the bidder is entitled to be issued a spectrum licence for each part of the spectrum assigned to the lots allocated to the bidder without further payment.
Note: For the issue of spectrum licences, see section 62 of the Act.
66 Payment of balance of winning price
(1) If the balance of the winning price for a winning bidder is an amount greater than zero, the ACMA must notify the bidder by registered mail of the balance.
(2) The balance of the winning price must be paid by the winning bidder to the ACMA on behalf of the Commonwealth no later than 20 working days after the date of the notice.
Note 1: The date of notice will be before the spectrum licences come into force.
Note 2: For information on how a balance of the winning price must be paid, see section 9.
(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 by registered mail.
(4) If the ACMA gives a winning bidder a revised notice, the balance of the winning price must be paid no later than:
(a) if the revised notice is given within 20 working days after the date of the original notice – no later than 30 working days after the date of the original notice; or
(b) if the revised notice is given more than 20 working days after the date of the original notice – no later than 10 working days after the date of the revised notice.