Radiocommunications (Spectrum Licence Allocation – 700 MHz Band) Determination 2016

Part 1—Preliminary

1 Name

This is the Radiocommunications (Spectrum Licence Allocation – 700 MHz Band) Determination 2016.

2 Commencement

This instrument commences at the start of the day after it is registered.

Note: The Federal Register of Legislation may be accessed at www.legislation.gov.au.

3 Authority

This instrument is made under section 60 and section 294 of the Act.

4 Interpretation

(1) In this instrument:

10 MHz lot: see Part 2 of Schedule 2.

5 MHz lot: see Part 2 of Schedule 2.

700 MHz band: see Part 1 of Schedule 2.

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

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

Act means the Radiocommunications Act 1992.

affiliated: see sections 12 and 13.

allocation limits: see section 10.

allocation limits direction means the direction in section 6 of the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Spectrum) Direction 2016.

allocation process means the procedures to be applied in allocating spectrum licences, as determined in this instrument.

applicant means a person who has applied for registration as a bidder.

applicant information package means a package containing the information, forms and other documents set out in subsection 27(1).

application deadline: see paragraph 26(1)(f).

application form means the form approved by the ACMA under paragraph 27(1)(g).

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

associate: see section 11.

auction means an auction of lots held in accordance with this instrument.

auction manager means the person appointed under section 23.

auction period means the period commencing on the preference deadline and ending at the close of the auction under clause 14 of Schedule 1.

auction system means the system the ACMA makes available to bidders to make bids in the auction.

balance of the pre-determined price for a spectrum licence means either, or both, the delayed pre-determined price for the licence or the balance of the up-front pre-determined price for the licence, as the context requires.

balance of the upfront pre-determined price: see subsection 43(2).

balance of the upfront winning price: see subsection 73(2).

bid means a bid made on a lot, and includes a bid taken to be made on a lot.

bidder means a person registered by the ACMA as a bidder under section 53.

bid increment percentage: see section 36.

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

confidential information: see section 16.

continue bid, in relation to a lot, means a bid made on the lot in a round of the auction that is equal to or greater than the specified price of the lot for that round.

delayed pre-determined price: see subsection 43(3).

delayed pre-determined price bank guarantee: see subsection 44(6).

delayed winning price: see subsection 73(3).

delayed winning price bank guarantee: see subsection 75(7).

deed of acknowledgement means a deed in the form approved under paragraph 27(1)(j) that has been completed and executed by an applicant 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.

Note: Strict compliance with the form is required.

deed of confidentiality means a deed in the form approved under paragraph 27(1)(k) that has been completed and executed 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.

Note: Strict compliance with the form is required.

deed of financial security means a deed in the form approved under paragraph 27(1)(h) that has been completed and executed 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.

deposit means a payment made by an applicant under section 38.

designated area has the meaning given by the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Spectrum) Direction 2016.

Note: The designated area is the area bounded by the coordinates specified in Table A of the Schedule to the re-allocation declaration, excluding the Mid West Radio Quiet Zone (as defined in the re-allocation declaration).

exit bid, in relation to a lot, means a bid made on the lot in a round of the auction that is:

(a) less than the specified price of the lot for that round; and
(b) either:
(i) in any round other than the first round for bids on the lot – equal to or greater than the specified price of the lot for the previous round of the auction;
(ii) in the first round for bids on the lot – equal to or greater than the starting price for the lot.

final high bid: see subclauses 11(3) and (4) of Schedule 1.

Note: Subclauses 12(3) and 13(3) of Schedule 1 affect the meaning of final high bid.

final round for bids on the 10 MHz lot: see subclause 11(1) of Schedule 1.

final round of the auction: see subclause 11(2) of Schedule 1.

first auction instalment: see subparagraph 75(3)(b)(i).

first instalment: see paragraph 46(2)(a).

gross auction price: see subsection 75(10).

gross price: see subsection 46(4).

lot: see subsection (2).

lower band: see Part 1 of Schedule 2.

marketing plan means the Radiocommunications Spectrum Marketing Plan (700 MHz unallocated lots band) 2016.

pre-determined price for a spectrum licence means either, or both, the delayed pre-determined price for the licence or the upfront pre-determined price for the licence, as the context requires.

preference deadline: see paragraph 26(1)(g).

preference nomination form means the form approved by the ACMA under subsection 28(2).

preferred lots: see subsection 37(1).

Note 1: An applicant’s preferred lots may be affected by subsection 38(4).

Note 2: A bidder may not be able to make a bid on one of its preferred lots in the circumstances set out in clause 4 of Schedule 1.

previous allocation determination means the Radiocommunications (Spectrum Licence Allocation – Combinatorial Clock Auction) Determination 2012.

previous successful bidder means each of the following:

(a) Optus Mobile Pty Ltd ACN 054 365 696;
(b) Telstra Corporation Ltd ACN 051 775 556.

Note: Each previous successful bidder was allocated a spectrum licence as a result of an auction held under the previous allocation determination.

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

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

re-allocation declaration means the Radiocommunications (Spectrum Re-allocation) Declaration No. 1 of 2011.

recess day: see subclause 3(1) of Schedule 1.

register means the register of bidders maintained by the ACMA under section 52.

related body corporate has the meaning given by the Corporations Act 2001.

related person, in relation to an applicant or a 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.

residual 700 MHz band: see Part 1 of Schedule 2.

roaming services agreement means an agreement between carriers for the principal purpose of enabling end-users of public mobile telecommunications services supplied by one carrier to use public mobile telecommunications services supplied by another carrier, in geographic locations where the first-mentioned carrier’s public mobile telecommunications services are not available.

second auction instalment: see subparagraph 75(3)(b)(ii).

second instalment: see paragraph 46(2)(b).

secured amount: see subsection 44(9).

secured auction amount: see subsection 75(11).

size, in relation to a lot, means:

(a) for the 10 MHz lot – 10 MHz in the lower band and 10 MHz in the upper band;
(b) for the 5 MHz lot – 5 MHz in the lower band and 5 MHz in the upper band.

Note: Each lot comprises two parts of the spectrum. For the 10 MHz lot, each part of the spectrum has the same bandwidth (10 MHz). For the 5 MHz lot, each part of the spectrum has the same bandwidth (5 MHz).

specified group of persons means:

(a) in relation to an applicant or bidder – the applicant or bidder and all of the applicant’s or bidder’s associates;
(b) in relation to a previous successful bidder – the previous successful bidder and all of the previous successful bidder’s associates.

Note: The definition of specified group of persons is affected by subsection 12(2) and subsection 13(2).

specified price: see subclauses 5(2) to (6) of Schedule 1.

starting price, for a lot, means the amount set by the ACMA for the lot under subsection 28(1).

third auction instalment: see subparagraph 75(3)(b)(iii).

third instalment: see paragraph 46(2)(c).

upfront pre-determined price: see subsection 43(1).

upfront winning price: see subsection 73(1).

upper band: see Part 1 of Schedule 2.

winning bidder: see subclause 11(5) of Schedule 1.

Note: Subclauses 12(2) and 13(2) may affect who is a winning bidder for a lot.

winning price: see section 72.

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.

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

(a) ACCC;
(b) ACMA;
(c) spectrum;
(d) spectrum licence.
In this instrument, register has a different meaning to that given to Register by section 5 of the Act.

(2) In this instrument, each of the following is a lot: (a) the 10 MHz lot; (b) the 5 MHz lot. (3) In this instrument, the range of numbers that identifies a frequency range includes the higher, but not the lower, number. (4) In this instrument, a reference to time is a reference to the legal time in the Australian Capital Territory.

5 References to other legislative instruments, other instruments or writing

(1) In this instrument, unless the contrary intention appears, a reference to another legislative instrument is a reference to that other legislative instrument as in force 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.

(2) In this instrument, unless the contrary intention appears, a reference to an instrument or other writing (other than a legislative instrument) is a reference to that instrument or writing as existing from time to time.

Note: See section 314A of the Act.

6 Giving documents to 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 to the email address specified in the applicant information package in accordance with subsection (2); or (c) faxing the document to the fax number specified in the applicant information package in accordance with subsections (3) and (4).

Note 1: Subsection 38(8) has additional requirements for a deed of financial security lodged by email or fax.

Note 2: Subsection 44(8) has additional requirements for a delayed pre-determined price bank guarantee lodged by email or fax.

Note 3: Subsection 75(9) has additional requirements for a delayed winning price bank guarantee lodged by email or fax.

(2) If a document is emailed: (a) the document must be included as an attachment; and (b) the document must be: (i) if the document is a statutory declaration, statement under section 68, deed or bank guarantee—in PDF format or another format approved by the auction manager; or (ii) if the document is not a document mentioned in subparagraph (i)—in Word, RTF or PDF format or another format approved by the auction manager. (3) If a document is faxed, the document must be accompanied by a cover sheet that states: (a) the sender’s name, postal address, telephone number and fax number; and (b) the number of pages transmitted, including the cover sheet. (4) If the faxed document is a completed application form, a completed preference nomination form, a statutory declaration, a statement under section 68, a deed or a bank guarantee, the cover sheet must also state the type of document.

7 Payment of amounts

(1) An amount paid to the ACMA on behalf of the Commonwealth under this instrument must be paid in Australian currency. (2) An amount must be paid by bank cheque or by electronic transfer. (3) An electronic transfer must be made into the bank account with the following details: (a) Bank—ANZ Bank; (b) Branch—Belconnen; (c) BSB number—012-951; (d) Account number—8379 24272; (e) Account name—ACMA Official Administered Receipts. (4) An amount is taken to have been paid by a deadline specified in this instrument if: (a) the ACMA receives a bank cheque for the full 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 specified in subsection (3) 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. (5) An amount payable 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 payable.

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.

(6) If an amount payable under this instrument is not an amount of whole dollars, the amount is rounded up to the next dollar.

8 Statutory declaration for body corporate

A statutory declaration required to be made in this instrument by a body corporate must be made by a director or secretary of the body corporate.

1 Name

This is the Radiocommunications (Spectrum Licence Allocation – 700 MHz Band) Determination 2016.

2 Commencement

This instrument commences at the start of the day after it is registered.

Note: The Federal Register of Legislation may be accessed at www.legislation.gov.au.

3 Authority

This instrument is made under section 60 and section 294 of the Act.

4 Interpretation

(1) In this instrument:

10 MHz lot: see Part 2 of Schedule 2.

5 MHz lot: see Part 2 of Schedule 2.

700 MHz band: see Part 1 of Schedule 2.

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

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

Act means the Radiocommunications Act 1992.

affiliated: see sections 12 and 13.

allocation limits: see section 10.

allocation limits direction means the direction in section 6 of the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Spectrum) Direction 2016.

allocation process means the procedures to be applied in allocating spectrum licences, as determined in this instrument.

applicant means a person who has applied for registration as a bidder.

applicant information package means a package containing the information, forms and other documents set out in subsection 27(1).

application deadline: see paragraph 26(1)(f).

application form means the form approved by the ACMA under paragraph 27(1)(g).

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

associate: see section 11.

auction means an auction of lots held in accordance with this instrument.

auction manager means the person appointed under section 23.

auction period means the period commencing on the preference deadline and ending at the close of the auction under clause 14 of Schedule 1.

auction system means the system the ACMA makes available to bidders to make bids in the auction.

balance of the pre-determined price for a spectrum licence means either, or both, the delayed pre-determined price for the licence or the balance of the up-front pre-determined price for the licence, as the context requires.

balance of the upfront pre-determined price: see subsection 43(2).

balance of the upfront winning price: see subsection 73(2).

bid means a bid made on a lot, and includes a bid taken to be made on a lot.

bidder means a person registered by the ACMA as a bidder under section 53.

bid increment percentage: see section 36.

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

confidential information: see section 16.

continue bid, in relation to a lot, means a bid made on the lot in a round of the auction that is equal to or greater than the specified price of the lot for that round.

delayed pre-determined price: see subsection 43(3).

delayed pre-determined price bank guarantee: see subsection 44(6).

delayed winning price: see subsection 73(3).

delayed winning price bank guarantee: see subsection 75(7).

deed of acknowledgement means a deed in the form approved under paragraph 27(1)(j) that has been completed and executed by an applicant 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.

Note: Strict compliance with the form is required.

deed of confidentiality means a deed in the form approved under paragraph 27(1)(k) that has been completed and executed 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.

Note: Strict compliance with the form is required.

deed of financial security means a deed in the form approved under paragraph 27(1)(h) that has been completed and executed 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.

deposit means a payment made by an applicant under section 38.

designated area has the meaning given by the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Spectrum) Direction 2016.

Note: The designated area is the area bounded by the coordinates specified in Table A of the Schedule to the re-allocation declaration, excluding the Mid West Radio Quiet Zone (as defined in the re-allocation declaration).

exit bid, in relation to a lot, means a bid made on the lot in a round of the auction that is:

(a) less than the specified price of the lot for that round; and
(b) either:
(i) in any round other than the first round for bids on the lot – equal to or greater than the specified price of the lot for the previous round of the auction;
(ii) in the first round for bids on the lot – equal to or greater than the starting price for the lot.

final high bid: see subclauses 11(3) and (4) of Schedule 1.

Note: Subclauses 12(3) and 13(3) of Schedule 1 affect the meaning of final high bid.

final round for bids on the 10 MHz lot: see subclause 11(1) of Schedule 1.

final round of the auction: see subclause 11(2) of Schedule 1.

first auction instalment: see subparagraph 75(3)(b)(i).

first instalment: see paragraph 46(2)(a).

gross auction price: see subsection 75(10).

gross price: see subsection 46(4).

lot: see subsection (2).

lower band: see Part 1 of Schedule 2.

marketing plan means the Radiocommunications Spectrum Marketing Plan (700 MHz unallocated lots band) 2016.

pre-determined price for a spectrum licence means either, or both, the delayed pre-determined price for the licence or the upfront pre-determined price for the licence, as the context requires.

preference deadline: see paragraph 26(1)(g).

preference nomination form means the form approved by the ACMA under subsection 28(2).

preferred lots: see subsection 37(1).

Note 1: An applicant’s preferred lots may be affected by subsection 38(4).

Note 2: A bidder may not be able to make a bid on one of its preferred lots in the circumstances set out in clause 4 of Schedule 1.

previous allocation determination means the Radiocommunications (Spectrum Licence Allocation – Combinatorial Clock Auction) Determination 2012.

previous successful bidder means each of the following:

(a) Optus Mobile Pty Ltd ACN 054 365 696;
(b) Telstra Corporation Ltd ACN 051 775 556.

Note: Each previous successful bidder was allocated a spectrum licence as a result of an auction held under the previous allocation determination.

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

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

re-allocation declaration means the Radiocommunications (Spectrum Re-allocation) Declaration No. 1 of 2011.

recess day: see subclause 3(1) of Schedule 1.

register means the register of bidders maintained by the ACMA under section 52.

related body corporate has the meaning given by the Corporations Act 2001.

related person, in relation to an applicant or a 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.

residual 700 MHz band: see Part 1 of Schedule 2.

roaming services agreement means an agreement between carriers for the principal purpose of enabling end-users of public mobile telecommunications services supplied by one carrier to use public mobile telecommunications services supplied by another carrier, in geographic locations where the first-mentioned carrier’s public mobile telecommunications services are not available.

second auction instalment: see subparagraph 75(3)(b)(ii).

second instalment: see paragraph 46(2)(b).

secured amount: see subsection 44(9).

secured auction amount: see subsection 75(11).

size, in relation to a lot, means:

(a) for the 10 MHz lot – 10 MHz in the lower band and 10 MHz in the upper band;
(b) for the 5 MHz lot – 5 MHz in the lower band and 5 MHz in the upper band.

Note: Each lot comprises two parts of the spectrum. For the 10 MHz lot, each part of the spectrum has the same bandwidth (10 MHz). For the 5 MHz lot, each part of the spectrum has the same bandwidth (5 MHz).

specified group of persons means:

(a) in relation to an applicant or bidder – the applicant or bidder and all of the applicant’s or bidder’s associates;
(b) in relation to a previous successful bidder – the previous successful bidder and all of the previous successful bidder’s associates.

Note: The definition of specified group of persons is affected by subsection 12(2) and subsection 13(2).

specified price: see subclauses 5(2) to (6) of Schedule 1.

starting price, for a lot, means the amount set by the ACMA for the lot under subsection 28(1).

third auction instalment: see subparagraph 75(3)(b)(iii).

third instalment: see paragraph 46(2)(c).

upfront pre-determined price: see subsection 43(1).

upfront winning price: see subsection 73(1).

upper band: see Part 1 of Schedule 2.

winning bidder: see subclause 11(5) of Schedule 1.

Note: Subclauses 12(2) and 13(2) may affect who is a winning bidder for a lot.

winning price: see section 72.

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.

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

(a) ACCC;
(b) ACMA;
(c) spectrum;
(d) spectrum licence.
In this instrument, register has a different meaning to that given to Register by section 5 of the Act.

(2) In this instrument, each of the following is a lot: (a) the 10 MHz lot; (b) the 5 MHz lot. (3) In this instrument, the range of numbers that identifies a frequency range includes the higher, but not the lower, number. (4) In this instrument, a reference to time is a reference to the legal time in the Australian Capital Territory.

5 References to other legislative instruments, other instruments or writing

(1) In this instrument, unless the contrary intention appears, a reference to another legislative instrument is a reference to that other legislative instrument as in force 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.

(2) In this instrument, unless the contrary intention appears, a reference to an instrument or other writing (other than a legislative instrument) is a reference to that instrument or writing as existing from time to time.

Note: See section 314A of the Act.

6 Giving documents to 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 to the email address specified in the applicant information package in accordance with subsection (2); or (c) faxing the document to the fax number specified in the applicant information package in accordance with subsections (3) and (4).

Note 1: Subsection 38(8) has additional requirements for a deed of financial security lodged by email or fax.

Note 2: Subsection 44(8) has additional requirements for a delayed pre-determined price bank guarantee lodged by email or fax.

Note 3: Subsection 75(9) has additional requirements for a delayed winning price bank guarantee lodged by email or fax.

(2) If a document is emailed: (a) the document must be included as an attachment; and (b) the document must be: (i) if the document is a statutory declaration, statement under section 68, deed or bank guarantee—in PDF format or another format approved by the auction manager; or (ii) if the document is not a document mentioned in subparagraph (i)—in Word, RTF or PDF format or another format approved by the auction manager. (3) If a document is faxed, the document must be accompanied by a cover sheet that states: (a) the sender’s name, postal address, telephone number and fax number; and (b) the number of pages transmitted, including the cover sheet. (4) If the faxed document is a completed application form, a completed preference nomination form, a statutory declaration, a statement under section 68, a deed or a bank guarantee, the cover sheet must also state the type of document.

7 Payment of amounts

(1) An amount paid to the ACMA on behalf of the Commonwealth under this instrument must be paid in Australian currency. (2) An amount must be paid by bank cheque or by electronic transfer. (3) An electronic transfer must be made into the bank account with the following details: (a) Bank—ANZ Bank; (b) Branch—Belconnen; (c) BSB number—012-951; (d) Account number—8379 24272; (e) Account name—ACMA Official Administered Receipts. (4) An amount is taken to have been paid by a deadline specified in this instrument if: (a) the ACMA receives a bank cheque for the full 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 specified in subsection (3) 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. (5) An amount payable 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 payable.

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.

(6) If an amount payable under this instrument is not an amount of whole dollars, the amount is rounded up to the next dollar.

8 Statutory declaration for body corporate

A statutory declaration required to be made in this instrument by a body corporate must be made by a director or secretary of the body corporate.

Part 2—Limits on allocation of spectrum

9 Simplified outline of this Part

This Part deals with the definition and application of the allocation limits that apply to the allocation of spectrum licences under this instrument.

The Minister has given the ACMA the allocation direction under subsection 60(10) of the Act, which requires the ACMA to determine procedures that impose limits on the aggregate parts of the spectrum that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, may in total be used by the members of a specified group of persons, namely, any person and that person’s associates.

This Part also sets out when two participants in the allocation process are affiliated. Generally, if two participants are affiliated, they cannot both participate in the allocation process.

This Part also sets out when a participant in the allocation process is affiliated with a previous successful bidder under the previous allocation determination. In determining and applying procedures imposing the allocation limits, the ACMA must take into account spectrum licences to be allocated under this instrument, and spectrum licences allocated under the previous allocation determination. Generally, if a participant is affiliated with a previous successful bidder, there may be a limit on which lots the participant may be able to nominate as its preferred lots in the allocation process.

10 Meaning of allocation limits

In this instrument, a reference to the allocation limits is a reference to the limits that, under the allocation limits direction: (a) must be imposed by the procedures determined in this instrument for the allocation of spectrum licences in the residual 700 MHz band; and (b) ensure that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, no person or specified group of persons may use more than the spectrum specified in Schedule 3 in the 700 MHz band.

Note: The Minister has given a direction to the ACMA, under subsection 60(10) of the Act, that limits be imposed on the aggregate of the parts of the spectrum in the 700 MHz band that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, may be used by a person or specified group of persons. See the allocation limits direction.

11 Meaning of associate

(1) In this instrument, associate, in relation to a person, means: (a) for a body corporate: (i) a director or secretary of the body; or (ii) a related body corporate; or (iii) a director or secretary of a related body corporate; or (iv) an individual who controls at least 15% of the voting power or holds at least 15% of the issued shares in the body; or (b) for an individual: (i) the individual’s spouse; or (ii) the individual’s de facto partner (within the meaning given by the Acts Interpretation Act 1901); or (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; or (iv) a body corporate of which the individual is a director or secretary; or (v) a body corporate that is related to a body corporate of which the individual is a director or secretary; or (c) in any case – any other person (other than the Commonwealth represented by the ACMA) who has a relevant agreement with the person that: (i) is for the use by a party to the agreement of spectrum licensed to either of those parties under a spectrum licence for residual 700 MHz band spectrum in the designated area; or (ii) relates to the acquisition of a spectrum licence for residual 700 MHz band spectrum in the designated area. (2) For 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; other than 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.

12 Affiliation between applicants or bidders

(1) Two applicants or bidders are affiliated if: (a) the applicants or bidders are associates of each other; or (b) the specified group of persons in relation to one applicant or bidder has at least one member in common with the specified group of persons in relation to the other applicant or bidder.

Note: Paragraph 12(1)(b) means that 2 applicants or bidders are affiliated if they have an associate in common.

(2) If 2 applicants or bidders are affiliated, they are taken to be in a single specified group of persons for the purpose of the allocation limits.

Note: Section 12 is recursive, so that more than 2 applicants or bidders may be taken to be in a single specified group of persons for the purpose of the allocation limits. See also the definition of specified group of persons in the Radiocommunications (Spectrum Licence Allocation–Residual 700 MHz Spectrum) Direction 2016.

13 Affiliation between applicant or bidder and previous successful bidder

(1) An applicant or bidder is affiliated with a previous successful bidder if: (a) the applicant or bidder and the previous successful bidder are associates of each other; or (b) the specified group of persons in relation to the applicant or bidder has at least one member in common with the specified group of persons in relation to the previous successful bidder.

Note: Paragraph 13(1)(b) means that an applicant or bidder is affiliated with a previous successful bidder if the applicant or bidder and the previous successful bidder have an associate in common.

(2) If an applicant or bidder is affiliated with a previous successful bidder, the applicant or bidder and the previous successful bidder are taken to be in a single specified group of persons for the purpose of the allocation limits.

Note: Section 13 is recursive, so that one or more previous successful bidders, and one or more applicants or bidders, may be taken to be in a single specified group of persons for the purpose of the allocation limits. See also the definition of specified group of persons in the Radiocommunications (Spectrum Licence Allocation–Residual 700 MHz Spectrum) Direction 2016.

14 Information relevant to considering whether applicants, bidders or previous successful bidders are affiliated

(1) When considering under this instrument whether 2 or more applicants or bidders are affiliated, or whether one or more applicants or bidders are affiliated with one or more previous successful bidders, the ACMA must have regard to: (a) application forms given under paragraph 29(1)(a); and (b) statutory declarations and statements made under this instrument. (2) The ACMA may have regard to any other information that it considers relevant, including: (a) application forms lodged under paragraph 4.7(1)(a) of the previous allocation determination; and (b) statutory declarations and statements made under the previous allocation determination.

9 Simplified outline of this Part

This Part deals with the definition and application of the allocation limits that apply to the allocation of spectrum licences under this instrument.

The Minister has given the ACMA the allocation direction under subsection 60(10) of the Act, which requires the ACMA to determine procedures that impose limits on the aggregate parts of the spectrum that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, may in total be used by the members of a specified group of persons, namely, any person and that person’s associates.

This Part also sets out when two participants in the allocation process are affiliated. Generally, if two participants are affiliated, they cannot both participate in the allocation process.

This Part also sets out when a participant in the allocation process is affiliated with a previous successful bidder under the previous allocation determination. In determining and applying procedures imposing the allocation limits, the ACMA must take into account spectrum licences to be allocated under this instrument, and spectrum licences allocated under the previous allocation determination. Generally, if a participant is affiliated with a previous successful bidder, there may be a limit on which lots the participant may be able to nominate as its preferred lots in the allocation process.

10 Meaning of allocation limits

In this instrument, a reference to the allocation limits is a reference to the limits that, under the allocation limits direction: (a) must be imposed by the procedures determined in this instrument for the allocation of spectrum licences in the residual 700 MHz band; and (b) ensure that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, no person or specified group of persons may use more than the spectrum specified in Schedule 3 in the 700 MHz band.

Note: The Minister has given a direction to the ACMA, under subsection 60(10) of the Act, that limits be imposed on the aggregate of the parts of the spectrum in the 700 MHz band that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, may be used by a person or specified group of persons. See the allocation limits direction.

11 Meaning of associate

(1) In this instrument, associate, in relation to a person, means: (a) for a body corporate: (i) a director or secretary of the body; or (ii) a related body corporate; or (iii) a director or secretary of a related body corporate; or (iv) an individual who controls at least 15% of the voting power or holds at least 15% of the issued shares in the body; or (b) for an individual: (i) the individual’s spouse; or (ii) the individual’s de facto partner (within the meaning given by the Acts Interpretation Act 1901); or (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; or (iv) a body corporate of which the individual is a director or secretary; or (v) a body corporate that is related to a body corporate of which the individual is a director or secretary; or (c) in any case – any other person (other than the Commonwealth represented by the ACMA) who has a relevant agreement with the person that: (i) is for the use by a party to the agreement of spectrum licensed to either of those parties under a spectrum licence for residual 700 MHz band spectrum in the designated area; or (ii) relates to the acquisition of a spectrum licence for residual 700 MHz band spectrum in the designated area. (2) For 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; other than 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.

12 Affiliation between applicants or bidders

(1) Two applicants or bidders are affiliated if: (a) the applicants or bidders are associates of each other; or (b) the specified group of persons in relation to one applicant or bidder has at least one member in common with the specified group of persons in relation to the other applicant or bidder.

Note: Paragraph 12(1)(b) means that 2 applicants or bidders are affiliated if they have an associate in common.

(2) If 2 applicants or bidders are affiliated, they are taken to be in a single specified group of persons for the purpose of the allocation limits.

Note: Section 12 is recursive, so that more than 2 applicants or bidders may be taken to be in a single specified group of persons for the purpose of the allocation limits. See also the definition of specified group of persons in the Radiocommunications (Spectrum Licence Allocation–Residual 700 MHz Spectrum) Direction 2016.

13 Affiliation between applicant or bidder and previous successful bidder

(1) An applicant or bidder is affiliated with a previous successful bidder if: (a) the applicant or bidder and the previous successful bidder are associates of each other; or (b) the specified group of persons in relation to the applicant or bidder has at least one member in common with the specified group of persons in relation to the previous successful bidder.

Note: Paragraph 13(1)(b) means that an applicant or bidder is affiliated with a previous successful bidder if the applicant or bidder and the previous successful bidder have an associate in common.

(2) If an applicant or bidder is affiliated with a previous successful bidder, the applicant or bidder and the previous successful bidder are taken to be in a single specified group of persons for the purpose of the allocation limits.

Note: Section 13 is recursive, so that one or more previous successful bidders, and one or more applicants or bidders, may be taken to be in a single specified group of persons for the purpose of the allocation limits. See also the definition of specified group of persons in the Radiocommunications (Spectrum Licence Allocation–Residual 700 MHz Spectrum) Direction 2016.

14 Information relevant to considering whether applicants, bidders or previous successful bidders are affiliated

(1) When considering under this instrument whether 2 or more applicants or bidders are affiliated, or whether one or more applicants or bidders are affiliated with one or more previous successful bidders, the ACMA must have regard to: (a) application forms given under paragraph 29(1)(a); and (b) statutory declarations and statements made under this instrument. (2) The ACMA may have regard to any other information that it considers relevant, including: (a) application forms lodged under paragraph 4.7(1)(a) of the previous allocation determination; and (b) statutory declarations and statements made under the previous allocation determination.

Part 3—Confidentiality

15 Simplified outline of this Part

This Part imposes a confidentiality obligation on participants in the allocation process.

A person who makes an application to be registered as a bidder in an auction must keep particular information confidential, including information about the person’s bidding strategy and about the amount the person is willing to pay for a spectrum licence, subject to some permitted disclosures (such as to the ACMA).

Others who know this information may also be subject to an obligation to keep the information confidential (including some employees of the person).

There is also an obligation on the person making the application to report any disclosures of confidential information.

16 Meaning of confidential information

In this instrument, confidential information, in relation to an applicant or bidder, means: (a) documents the applicant or bidder has given to the ACMA for the purpose of the allocation process; and (b) information provided to the bidder under subsection 53(2) for the purpose of participating in an auction; and (c) a bid made by the bidder in the auction; and (d) a bid proposed to be made by the applicant or bidder or a bid under consideration by the applicant or bidder; and (e) the applicant’s or bidder’s bidding strategy; and (f) the amount the applicant or bidder is willing to pay for: (i) the 10 MHz lot; or (ii) the 5 MHz lot; or (iii) both the 10 MHz lot and the 5 MHz lot; and (g) 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) another applicant or bidder’s bidding strategy; and (h) information that, if disclosed, could be reasonably expected to affect or be capable of affecting the outcome of the allocation process.

17 Obligation not to disclose confidential information

(1) An applicant or bidder, or a related person who has knowledge of the applicant’s or bidder’s confidential information, must not, either directly or indirectly, disclose the applicant’s or bidder’s confidential information about the allocation process to any person. (2) Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, disclosing information about the allocation process: (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 that applicant or bidder; or (e) for a related person of an applicant or bidder – to that same applicant or bidder, or to another related person of the same applicant or bidder; or (f) as authorised by this instrument or as otherwise required by law.

Note: In some cases, the person to whom the information is disclosed may become a related person who is required to give a deed of confidentiality to the ACMA – see section 21.

(3) Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, disclosing information about the allocation process if: (a) the information is already publicly available; and (b) the information was not made available because of a breach of this section.

18 Duration of confidentiality obligations

Section 17 applies to an applicant or bidder and a related person of the applicant or bidder until: (a) the applicant is notified under subsection 45(1) or 46(1) that the ACMA has received the applicant’s acceptance of an offer of a spectrum licence; or (b) the bidder is notified under subsection 67(1) that the bidder is not a winning bidder; or (c) the applicant, as a withdrawn applicant, is notified under subsection 67(3) that the applicant’s confidentiality obligations are at an end; or (d) the bidder, as a winning bidder, makes a statement under section 68.

19 Reporting breach of confidentiality

An applicant or bidder, or related person of an applicant or bidder, who discloses confidential information in breach of section 17 or who receives the confidential information of another applicant or bidder must report the disclosure or receipt to the ACMA in writing as soon as possible, but no later than 2 working days after becoming aware the disclosure or receipt has occurred.

20 Notice of breach of confidentiality

(1) If the ACMA has reason to believe that an applicant or bidder, or a related person of the applicant or bidder, may have disclosed confidential information in breach of section 17 or received confidential information as a result of a breach of section 17, the ACMA must: (a) tell 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. (2) If the ACMA forms the belief before: (a) notifying the applicant under subsection 45(1) or 46(1) that the ACMA has received the applicant’s acceptance of an offer of a spectrum licence; or (b) the end of the auction period; the ACMA is not required to tell the applicant or bidder before that time, but must tell the applicant or bidder as soon as practicable after that time.

21 Deed of confidentiality required from related persons

(1) A related person of an applicant or bidder who has knowledge of the applicant’s or bidder’s confidential information must give the ACMA a deed of confidentiality if the person is: (a) an employee of the applicant or bidder; or (b) an employee of a related body corporate of the applicant or bidder that provides services to the applicant or bidder. (2) If a person mentioned in paragraph (1)(a) or (b) receives knowledge of the applicant’s confidential information before the application deadline, the person must give the ACMA the deed of confidentiality before the application deadline.

Note: A deed of confidentiality form must be provided by the ACMA as part of the applicant information package on the ACMA’s website at http://www.acma.gov.au – see section 26 and paragraph 27(1)(k).

15 Simplified outline of this Part

This Part imposes a confidentiality obligation on participants in the allocation process.

A person who makes an application to be registered as a bidder in an auction must keep particular information confidential, including information about the person’s bidding strategy and about the amount the person is willing to pay for a spectrum licence, subject to some permitted disclosures (such as to the ACMA).

Others who know this information may also be subject to an obligation to keep the information confidential (including some employees of the person).

There is also an obligation on the person making the application to report any disclosures of confidential information.

16 Meaning of confidential information

In this instrument, confidential information, in relation to an applicant or bidder, means: (a) documents the applicant or bidder has given to the ACMA for the purpose of the allocation process; and (b) information provided to the bidder under subsection 53(2) for the purpose of participating in an auction; and (c) a bid made by the bidder in the auction; and (d) a bid proposed to be made by the applicant or bidder or a bid under consideration by the applicant or bidder; and (e) the applicant’s or bidder’s bidding strategy; and (f) the amount the applicant or bidder is willing to pay for: (i) the 10 MHz lot; or (ii) the 5 MHz lot; or (iii) both the 10 MHz lot and the 5 MHz lot; and (g) 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) another applicant or bidder’s bidding strategy; and (h) information that, if disclosed, could be reasonably expected to affect or be capable of affecting the outcome of the allocation process.

17 Obligation not to disclose confidential information

(1) An applicant or bidder, or a related person who has knowledge of the applicant’s or bidder’s confidential information, must not, either directly or indirectly, disclose the applicant’s or bidder’s confidential information about the allocation process to any person. (2) Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, disclosing information about the allocation process: (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 that applicant or bidder; or (e) for a related person of an applicant or bidder – to that same applicant or bidder, or to another related person of the same applicant or bidder; or (f) as authorised by this instrument or as otherwise required by law.

Note: In some cases, the person to whom the information is disclosed may become a related person who is required to give a deed of confidentiality to the ACMA – see section 21.

(3) Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, disclosing information about the allocation process if: (a) the information is already publicly available; and (b) the information was not made available because of a breach of this section.

18 Duration of confidentiality obligations

Section 17 applies to an applicant or bidder and a related person of the applicant or bidder until: (a) the applicant is notified under subsection 45(1) or 46(1) that the ACMA has received the applicant’s acceptance of an offer of a spectrum licence; or (b) the bidder is notified under subsection 67(1) that the bidder is not a winning bidder; or (c) the applicant, as a withdrawn applicant, is notified under subsection 67(3) that the applicant’s confidentiality obligations are at an end; or (d) the bidder, as a winning bidder, makes a statement under section 68.

19 Reporting breach of confidentiality

An applicant or bidder, or related person of an applicant or bidder, who discloses confidential information in breach of section 17 or who receives the confidential information of another applicant or bidder must report the disclosure or receipt to the ACMA in writing as soon as possible, but no later than 2 working days after becoming aware the disclosure or receipt has occurred.

20 Notice of breach of confidentiality

(1) If the ACMA has reason to believe that an applicant or bidder, or a related person of the applicant or bidder, may have disclosed confidential information in breach of section 17 or received confidential information as a result of a breach of section 17, the ACMA must: (a) tell 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. (2) If the ACMA forms the belief before: (a) notifying the applicant under subsection 45(1) or 46(1) that the ACMA has received the applicant’s acceptance of an offer of a spectrum licence; or (b) the end of the auction period; the ACMA is not required to tell the applicant or bidder before that time, but must tell the applicant or bidder as soon as practicable after that time.

21 Deed of confidentiality required from related persons

(1) A related person of an applicant or bidder who has knowledge of the applicant’s or bidder’s confidential information must give the ACMA a deed of confidentiality if the person is: (a) an employee of the applicant or bidder; or (b) an employee of a related body corporate of the applicant or bidder that provides services to the applicant or bidder. (2) If a person mentioned in paragraph (1)(a) or (b) receives knowledge of the applicant’s confidential information before the application deadline, the person must give the ACMA the deed of confidentiality before the application deadline.

Note: A deed of confidentiality form must be provided by the ACMA as part of the applicant information package on the ACMA’s website at http://www.acma.gov.au – see section 26 and paragraph 27(1)(k).

Part 4—Procedures before auction or allocation for a pre-determined price

Division 1—Simplified outline

22 Simplified outline of this Part

This Part deals with the procedures to be undertaken before conducting the auction or allocating spectrum licences for a pre-determined price.

The ACMA must make decisions in relation to the allocation process, including setting deadlines by which persons wishing to participate in the allocation process must give the ACMA completed forms and information. The ACMA must also advertise the auction and prepare an applicant information package.

Persons wishing to participate in the allocation process must complete forms, deeds and declarations, and give them to the ACMA by the relevant deadlines. Some of the forms and declarations will contain information about the associates of the person. The ACMA will use this information to work out whether any applicants are affiliated with each other, or with a previous successful bidder. If there are such affiliations, this may have consequences for an applicant’s ability to participate in the allocation process.

This Part also requires those applicants who are able to participate in the allocation process to pay a deposit, or provide a deed of financial security, in relation to the lots on which those applicants wish to bid.

Division 2—Preliminary

23 Auction manager

The ACMA must, in writing, appoint a person to manage the auction.

24 Setting application fee

Before the ACMA publishes a notice inviting applications for the auction, it must, in writing, set the amount of the application fee.

25 Application fee not refundable

An application fee paid under this instrument is not refundable in any circumstances, including if an applicant withdraws from the auction before the preference deadline or is not permitted to make a bid on a lot in the auction.

Division 3—Advertising the auction

26 Advertising of auction by ACMA

(1) The ACMA must publish on its website a notice that: (a) describes the parts of the spectrum to be auctioned; and (b) gives a brief description of the way the auction will be conducted; and (c) states that the auction will be conducted in accordance with this instrument; and (d) states that the ACMA may conclude that it can allocate a spectrum licence or licences for lots at a pre-determined price without having to conduct an auction; and (e) invites persons to apply to the ACMA to take part in the auction; and (f) states the date and time (the application deadline) before which: (i) completed application forms must be received by the ACMA; and (ii) the application fee must be paid to the ACMA on behalf of the Commonwealth; and (g) states the date and time (the preference deadline) before which: (i) completed preference nomination forms must be received by the ACMA; and (ii) deposits must be paid to the ACMA on behalf of the Commonwealth or deeds of financial security must be given to the ACMA on behalf of the Commonwealth; and (h) states that applications may only be withdrawn before the preference deadline; and (i) states that the applicant information package 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 auction by any method it chooses.

27 Applicant information package

(1) The applicant information package must contain the following documents and information: (a) the re-allocation declaration; (b) the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Spectrum) Direction 2016; (c) the marketing plan; (d) this instrument; (e) a guide to the auction; (f) a statement that the ACMA may offer to allocate spectrum licences for lots for a pre-determined price; (g) an application form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (h) a deed of financial security form approved by the ACMA; (i) information about providing a deed of financial security as an alternative to a deposit; (j) a deed of acknowledgment form approved by the ACMA, that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument; (k) a deed of confidentiality form approved by the ACMA, that includes a statement that an applicant (or related person of an applicant) agrees not to disclose confidential information before section 17 ceases to apply to the relevant applicant or the related person; (l) statutory declaration forms for the purposes of this instrument; (m) the amount of the application fee for the auction; (n) the application deadline; (o) the preference deadline; (p) advice that the preference deadline is the last time for withdrawal from the auction; (q) the physical address for giving documents to the ACMA; (r) the email address for giving documents to the ACMA; (s) the fax number for giving documents to the ACMA. (2) The applicant information package may also contain other information about the allocation process. (3) The applicant information package must be published on the ACMA’s website. (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.

28 Starting prices

(1) The ACMA must set the starting price for each of: (a) the 10 MHz lot; and (b) the 5 MHz lot.

Note: The starting price for a lot must be set in a manner consistent with the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Sepectrum) Direction 2016.

(2) After setting the starting prices, the ACMA must approve a preference nomination form. (3) After approving the preference nomination form, the ACMA must publish the starting prices and the preference nomination form on its website.

Division 4—Application to participate in auction

29 Making an application

(1) A person may apply to become registered as a bidder in the auction by: (a) giving the ACMA a completed application form; and (b) giving the ACMA a deed of acknowledgement; and (c) giving the ACMA a deed of confidentiality executed by the applicant; and (d) paying the application fee; before the application deadline.

Note: For information on how the application fee must be paid, see section 7.

(2) An applicant may give the ACMA an updated document for paragraphs (1)(a) to (c) at any time until the application deadline, but not after the deadline.

30 Applicants to notify ACMA if application information incorrect

If an applicant knows that any of the information in the application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.

31 Applicant to provide statutory declaration

(1) After the application deadline, the ACMA must: (a) give each applicant details about the identity of all other applicants, the persons identified as the associates of other applicants, and all previous successful bidders; and (b) ask each applicant to make a statutory declaration stating whether the applicant is affiliated with another applicant or a previous successful bidder and, if so, identifying the other applicant or the previous successful bidder and giving details of the affiliation.

Note: A previous successful bidder may also be an applicant.

(2) The ACMA must state a deadline, at least 5 working days after the date of the request, before which the statutory declaration must be received by the ACMA.

32 Failure to provide statutory declaration

(1) If an applicant does not give the ACMA a statutory declaration in accordance with section 31, the applicant is taken to have withdrawn its application. (2) The ACMA must tell an applicant in writing if it is taken to have withdrawn under subsection (1).

33 Procedure if ACMA satisfied applicants affiliated

(1) If the ACMA is satisfied that 2 or more applicants are affiliated, the ACMA must, in writing, notify the affiliated applicants that: (a) the ACMA is satisfied, on the basis set out in the notice, that the applicants are affiliated; and (b) to participate in the auction the affiliated applicants must: (i) withdraw the applications of all the affiliated applicants and submit a new application under section 34; or (ii) withdraw the applications of all but one of the affiliated applicants. (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 10 working days, each affiliated applicant is taken to have withdrawn its application. (4) If the affiliated applicants notify the ACMA that they have decided to take the option in subparagraph (1)(b)(ii), and more than one affiliated applicant does not withdraw its application by the preference deadline, 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).

34 Requirement for new application

(1) If a group of affiliated applicants notified by the ACMA under subsection 33(1) decides 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 33(1): (a) give the ACMA a completed application form; and (b) pay the application fee.

Note: For information on how the application fee must be paid, see section 7.

(3) If the ACMA receives a completed application form and application fee 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 as the associates of other applicants. (4) The updated details do not need to include details about those applicants who have already withdrawn their applications. (5) The new applicant must, no later than 3 working days after the ACMA gives the new applicant the updated details (or, if the ACMA agrees to a later time, the agreed time), give the ACMA: (a) a deed of acknowledgement; and (b) a deed of confidentiality executed by the new applicant; and (c) a statutory declaration that the new applicant is not affiliated with any other applicant in the updated details. (6) The ACMA must not accept a new application under this section unless it is satisfied that the new applicant is not affiliated with any applicant who has not withdrawn its application, including another new applicant.

35 Procedure if ACMA satisfied that applicant is affiliated with a previous successful bidder

If the ACMA is satisfied that: (a) an applicant is affiliated with a previous successful bidder; and (b) that previous successful bidder is not also an applicant; the ACMA must, in writing, notify the applicant and tell it the basis on which the ACMA is satisfied the applicant is affiliated with a previous successful bidder.

Note 1: If the previous successful bidder is also an applicant, section 33 applies.

Note 2: An applicant who is affiliated with a previous successful bidder may not be able to nominate a particular lot, or both lots, as its preferred lots under section 37.

Note 3: An applicant who is affiliated with a previous successful bidder may not be able to bid on the 5 MHz lot in particular circumstances under Schedule 1.

Division 5—Setting the bid increment percentage

36 Bid increment percentage

After the application deadline, the ACMA must set the bid increment percentage for each lot as a percentage of the starting price for the lot in the first round, and of the specified price for the lot in any other round.

Note: The auction manager may vary the percentage set under section 36 – see clause 6 of Schedule 1.

Division 6—Preference nomination and financial security

37 Giving preference nomination form

(1) An applicant must nominate its preferred lots by giving the ACMA a completed preference nomination form before the preference deadline. (2) Subject to subsections (3) and (4), an applicant may nominate: (a) the 10 MHz lot; or (b) the 5 MHz lot; or (c) both the 10 MHz lot and the 5 MHz lot; as its preferred lots.

Note 1: If an applicant becoming the winning bidder for one of the lots would exceed the allocation limits, subsections (3) and (4) prevent that applicant from nominating that lot as one of its preferred lots.

Note 2: If an applicant becoming the winning bidder for both lots would result in the applicant being able to use spectrum in excess of the allocation limits, Schedule 1 prevents that applicant from bidding on the 5 MHz lot if the applicant is the winning bidder for the 10 MHz lot.

(3) If: (a) the applicant is, or is affiliated with, a previous successful bidder; and (b) the aggregate of: (i) the lot size of the 10 MHz lot; and (ii) the part of the spectrum (if any) that the applicant, or the specified group of persons that includes the applicant, may use as a result of the allocation of spectrum licences under the previous allocation determination; exceeds the allocation limits; the applicant must not nominate the 10 MHz lot as one of its preferred lots.

Note 1: An applicant’s ability to nominate preferred lots in the auction is restricted by the allocation limits. In particular, the applicant’s ability to nominate preferred lots in the auction may be restricted as a result of the application of the allocation limits to the lots to be auctioned under this instrument and the spectrum licences allocated under the previous allocation determination.

Note 2: An applicant’s preferred lots may also be affected by subsection (4) and by subsection 38(4).

(4) If: (a) the applicant is, or is affiliated with, a previous successful bidder; and (b) the aggregate of: (i) the lot size of the 5 MHz lot; and (ii) the part of the spectrum (if any) that the applicant, or the specified group of persons that includes the applicant, may use as a result of the allocation of spectrum licences under the previous allocation determination; exceeds the allocation limits; the applicant must not nominate the 5 MHz lot as one of its preferred lots.

Note 1: An applicant’s ability to nominate preferred lots in the auction is restricted by the allocation limits. In particular, the applicant’s ability to nominate preferred lots in the auction may be restricted as a result of the application of the allocation limits to the lots to be auctioned under this instrument and the spectrum licences allocated under the previous allocation determination.

Note 2: As a result of the allocation limits, if this subsection prevents an applicant from nominating the 5 MHz lot as one of its preferred lots, subsection (3) will prevent the applicant from nominating the 10 MHz lot and, as a result, both subsections have the effect of preventing the applicant from being allocated a spectrum licence under this instrument, and subsection (6) provides that the applicant is taken to have withdrawn its application.

(5) An applicant may change the preferred lots nominated by giving the ACMA a new completed preference nomination form at any time until the preference deadline, but not after the deadline. (6) If: (a) an applicant does not nominate its preferred lots by the preference deadline; or (b) subsection (4) applies to an applicant; the applicant is taken to have withdrawn its application. (7) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (6).

38 Deposit or deed of financial security required

(1) An applicant must, before the preference deadline: (a) pay a deposit of an amount to the ACMA on behalf of the Commonwealth; or (b) give the ACMA on behalf of the Commonwealth a deed of financial security, for an amount; or (c) pay a deposit of part of an amount and give a deed of financial security for the remainder.

Note: For information on how a deposit is paid, see section 7. For information on how a deed of financial security is given, see section 6 and subsection (8).

(2) For the purposes of subsection (1) the amount required, in relation to an applicant, is: (a) if the applicant nominated both the 10 MHz lot and the 5 MHz lot as its preferred lots – 10 percent of the starting price of the 10 MHz lot; (b) if the applicant nominated only the 10 MHz lot as its preferred lot – 10 percent of the starting price of the 10 MHz lot; (c) if the applicant nominated only the 5 MHz lot as its preferred lot – 10 percent of the starting price of the 5 MHz lot. (3) If an applicant pays a deposit 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 paid a deposit 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 preference deadline or no later than 3 working days after the date of the notice (whichever is the later), pay a deposit or give a deed of financial security (or both) for the amount under subsection (2). (4) If the applicant does not comply with the notice given under subsection (3): (a) if: (i) the applicant nominated both lots as its preferred lots; and (ii) 10 percent of the starting price for the 10 MHz lot is greater than the amount of the deposit paid or the deed of financial security given (or both) by the applicant; and (iii) 10 percent of the starting price for the 5 MHz lot is equal to or less than the amount of the deposit paid or the deed of financial security given (or both) by the applicant; the applicant is taken to have nominated only the 5 MHz lot as its preferred lot; (b) in any other case – the applicant 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 (4). (6) A deed of financial security must be executed by an Australian-owned authorised deposit-taking institution (as defined in the Banking Act 1959) which is a bank. (7) 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. (8) If a deed of financial security is given to the ACMA by email or fax before the preference deadline, the original deed must be received by the ACMA no later than 3 working days after the preference 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. (9) An applicant is taken to have withdrawn its application if: (a) the applicant fails to pay a deposit or give a deed of financial security before the preference deadline; or (b) the ACMA is not satisfied that the person executing a deed of financial security is a person mentioned in subsection (6). (10) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (9).

Division 7—Withdrawal

39 Withdrawal of application

(1) An applicant may withdraw its application before the preference deadline, by giving the ACMA notice in writing. (2) If an applicant who withdraws its application under subsection (1), or who is taken to have withdrawn its application under another section of this instrument, has paid a deposit under section 38, the ACMA must refund the deposit. (3) Subsection (2) is subject to sections 85 and 88. (4) An applicant may not withdraw its application after the preference deadline. (5) An applicant must not be re-admitted to the auction after withdrawing its application.

Part 4—Procedures before auction or allocation for a pre-determined price

Division 1—Simplified outline

22 Simplified outline of this Part

This Part deals with the procedures to be undertaken before conducting the auction or allocating spectrum licences for a pre-determined price.

The ACMA must make decisions in relation to the allocation process, including setting deadlines by which persons wishing to participate in the allocation process must give the ACMA completed forms and information. The ACMA must also advertise the auction and prepare an applicant information package.

Persons wishing to participate in the allocation process must complete forms, deeds and declarations, and give them to the ACMA by the relevant deadlines. Some of the forms and declarations will contain information about the associates of the person. The ACMA will use this information to work out whether any applicants are affiliated with each other, or with a previous successful bidder. If there are such affiliations, this may have consequences for an applicant’s ability to participate in the allocation process.

This Part also requires those applicants who are able to participate in the allocation process to pay a deposit, or provide a deed of financial security, in relation to the lots on which those applicants wish to bid.

Division 2—Preliminary

23 Auction manager

The ACMA must, in writing, appoint a person to manage the auction.

24 Setting application fee

Before the ACMA publishes a notice inviting applications for the auction, it must, in writing, set the amount of the application fee.

25 Application fee not refundable

An application fee paid under this instrument is not refundable in any circumstances, including if an applicant withdraws from the auction before the preference deadline or is not permitted to make a bid on a lot in the auction.

Division 3—Advertising the auction

26 Advertising of auction by ACMA

(1) The ACMA must publish on its website a notice that: (a) describes the parts of the spectrum to be auctioned; and (b) gives a brief description of the way the auction will be conducted; and (c) states that the auction will be conducted in accordance with this instrument; and (d) states that the ACMA may conclude that it can allocate a spectrum licence or licences for lots at a pre-determined price without having to conduct an auction; and (e) invites persons to apply to the ACMA to take part in the auction; and (f) states the date and time (the application deadline) before which: (i) completed application forms must be received by the ACMA; and (ii) the application fee must be paid to the ACMA on behalf of the Commonwealth; and (g) states the date and time (the preference deadline) before which: (i) completed preference nomination forms must be received by the ACMA; and (ii) deposits must be paid to the ACMA on behalf of the Commonwealth or deeds of financial security must be given to the ACMA on behalf of the Commonwealth; and (h) states that applications may only be withdrawn before the preference deadline; and (i) states that the applicant information package 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 auction by any method it chooses.

27 Applicant information package

(1) The applicant information package must contain the following documents and information: (a) the re-allocation declaration; (b) the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Spectrum) Direction 2016; (c) the marketing plan; (d) this instrument; (e) a guide to the auction; (f) a statement that the ACMA may offer to allocate spectrum licences for lots for a pre-determined price; (g) an application form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (h) a deed of financial security form approved by the ACMA; (i) information about providing a deed of financial security as an alternative to a deposit; (j) a deed of acknowledgment form approved by the ACMA, that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument; (k) a deed of confidentiality form approved by the ACMA, that includes a statement that an applicant (or related person of an applicant) agrees not to disclose confidential information before section 17 ceases to apply to the relevant applicant or the related person; (l) statutory declaration forms for the purposes of this instrument; (m) the amount of the application fee for the auction; (n) the application deadline; (o) the preference deadline; (p) advice that the preference deadline is the last time for withdrawal from the auction; (q) the physical address for giving documents to the ACMA; (r) the email address for giving documents to the ACMA; (s) the fax number for giving documents to the ACMA. (2) The applicant information package may also contain other information about the allocation process. (3) The applicant information package must be published on the ACMA’s website. (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.

28 Starting prices

(1) The ACMA must set the starting price for each of: (a) the 10 MHz lot; and (b) the 5 MHz lot.

Note: The starting price for a lot must be set in a manner consistent with the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Sepectrum) Direction 2016.

(2) After setting the starting prices, the ACMA must approve a preference nomination form. (3) After approving the preference nomination form, the ACMA must publish the starting prices and the preference nomination form on its website.

Division 4—Application to participate in auction

29 Making an application

(1) A person may apply to become registered as a bidder in the auction by: (a) giving the ACMA a completed application form; and (b) giving the ACMA a deed of acknowledgement; and (c) giving the ACMA a deed of confidentiality executed by the applicant; and (d) paying the application fee; before the application deadline.

Note: For information on how the application fee must be paid, see section 7.

(2) An applicant may give the ACMA an updated document for paragraphs (1)(a) to (c) at any time until the application deadline, but not after the deadline.

30 Applicants to notify ACMA if application information incorrect

If an applicant knows that any of the information in the application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.

31 Applicant to provide statutory declaration

(1) After the application deadline, the ACMA must: (a) give each applicant details about the identity of all other applicants, the persons identified as the associates of other applicants, and all previous successful bidders; and (b) ask each applicant to make a statutory declaration stating whether the applicant is affiliated with another applicant or a previous successful bidder and, if so, identifying the other applicant or the previous successful bidder and giving details of the affiliation.

Note: A previous successful bidder may also be an applicant.

(2) The ACMA must state a deadline, at least 5 working days after the date of the request, before which the statutory declaration must be received by the ACMA.

32 Failure to provide statutory declaration

(1) If an applicant does not give the ACMA a statutory declaration in accordance with section 31, the applicant is taken to have withdrawn its application. (2) The ACMA must tell an applicant in writing if it is taken to have withdrawn under subsection (1).

33 Procedure if ACMA satisfied applicants affiliated

(1) If the ACMA is satisfied that 2 or more applicants are affiliated, the ACMA must, in writing, notify the affiliated applicants that: (a) the ACMA is satisfied, on the basis set out in the notice, that the applicants are affiliated; and (b) to participate in the auction the affiliated applicants must: (i) withdraw the applications of all the affiliated applicants and submit a new application under section 34; or (ii) withdraw the applications of all but one of the affiliated applicants. (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 10 working days, each affiliated applicant is taken to have withdrawn its application. (4) If the affiliated applicants notify the ACMA that they have decided to take the option in subparagraph (1)(b)(ii), and more than one affiliated applicant does not withdraw its application by the preference deadline, 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).

34 Requirement for new application

(1) If a group of affiliated applicants notified by the ACMA under subsection 33(1) decides 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 33(1): (a) give the ACMA a completed application form; and (b) pay the application fee.

Note: For information on how the application fee must be paid, see section 7.

(3) If the ACMA receives a completed application form and application fee 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 as the associates of other applicants. (4) The updated details do not need to include details about those applicants who have already withdrawn their applications. (5) The new applicant must, no later than 3 working days after the ACMA gives the new applicant the updated details (or, if the ACMA agrees to a later time, the agreed time), give the ACMA: (a) a deed of acknowledgement; and (b) a deed of confidentiality executed by the new applicant; and (c) a statutory declaration that the new applicant is not affiliated with any other applicant in the updated details. (6) The ACMA must not accept a new application under this section unless it is satisfied that the new applicant is not affiliated with any applicant who has not withdrawn its application, including another new applicant.

35 Procedure if ACMA satisfied that applicant is affiliated with a previous successful bidder

If the ACMA is satisfied that: (a) an applicant is affiliated with a previous successful bidder; and (b) that previous successful bidder is not also an applicant; the ACMA must, in writing, notify the applicant and tell it the basis on which the ACMA is satisfied the applicant is affiliated with a previous successful bidder.

Note 1: If the previous successful bidder is also an applicant, section 33 applies.

Note 2: An applicant who is affiliated with a previous successful bidder may not be able to nominate a particular lot, or both lots, as its preferred lots under section 37.

Note 3: An applicant who is affiliated with a previous successful bidder may not be able to bid on the 5 MHz lot in particular circumstances under Schedule 1.

Division 5—Setting the bid increment percentage

36 Bid increment percentage

After the application deadline, the ACMA must set the bid increment percentage for each lot as a percentage of the starting price for the lot in the first round, and of the specified price for the lot in any other round.

Note: The auction manager may vary the percentage set under section 36 – see clause 6 of Schedule 1.

Division 6—Preference nomination and financial security

37 Giving preference nomination form

(1) An applicant must nominate its preferred lots by giving the ACMA a completed preference nomination form before the preference deadline. (2) Subject to subsections (3) and (4), an applicant may nominate: (a) the 10 MHz lot; or (b) the 5 MHz lot; or (c) both the 10 MHz lot and the 5 MHz lot; as its preferred lots.

Note 1: If an applicant becoming the winning bidder for one of the lots would exceed the allocation limits, subsections (3) and (4) prevent that applicant from nominating that lot as one of its preferred lots.

Note 2: If an applicant becoming the winning bidder for both lots would result in the applicant being able to use spectrum in excess of the allocation limits, Schedule 1 prevents that applicant from bidding on the 5 MHz lot if the applicant is the winning bidder for the 10 MHz lot.

(3) If: (a) the applicant is, or is affiliated with, a previous successful bidder; and (b) the aggregate of: (i) the lot size of the 10 MHz lot; and (ii) the part of the spectrum (if any) that the applicant, or the specified group of persons that includes the applicant, may use as a result of the allocation of spectrum licences under the previous allocation determination; exceeds the allocation limits; the applicant must not nominate the 10 MHz lot as one of its preferred lots.

Note 1: An applicant’s ability to nominate preferred lots in the auction is restricted by the allocation limits. In particular, the applicant’s ability to nominate preferred lots in the auction may be restricted as a result of the application of the allocation limits to the lots to be auctioned under this instrument and the spectrum licences allocated under the previous allocation determination.

Note 2: An applicant’s preferred lots may also be affected by subsection (4) and by subsection 38(4).

(4) If: (a) the applicant is, or is affiliated with, a previous successful bidder; and (b) the aggregate of: (i) the lot size of the 5 MHz lot; and (ii) the part of the spectrum (if any) that the applicant, or the specified group of persons that includes the applicant, may use as a result of the allocation of spectrum licences under the previous allocation determination; exceeds the allocation limits; the applicant must not nominate the 5 MHz lot as one of its preferred lots.

Note 1: An applicant’s ability to nominate preferred lots in the auction is restricted by the allocation limits. In particular, the applicant’s ability to nominate preferred lots in the auction may be restricted as a result of the application of the allocation limits to the lots to be auctioned under this instrument and the spectrum licences allocated under the previous allocation determination.

Note 2: As a result of the allocation limits, if this subsection prevents an applicant from nominating the 5 MHz lot as one of its preferred lots, subsection (3) will prevent the applicant from nominating the 10 MHz lot and, as a result, both subsections have the effect of preventing the applicant from being allocated a spectrum licence under this instrument, and subsection (6) provides that the applicant is taken to have withdrawn its application.

(5) An applicant may change the preferred lots nominated by giving the ACMA a new completed preference nomination form at any time until the preference deadline, but not after the deadline. (6) If: (a) an applicant does not nominate its preferred lots by the preference deadline; or (b) subsection (4) applies to an applicant; the applicant is taken to have withdrawn its application. (7) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (6).

38 Deposit or deed of financial security required

(1) An applicant must, before the preference deadline: (a) pay a deposit of an amount to the ACMA on behalf of the Commonwealth; or (b) give the ACMA on behalf of the Commonwealth a deed of financial security, for an amount; or (c) pay a deposit of part of an amount and give a deed of financial security for the remainder.

Note: For information on how a deposit is paid, see section 7. For information on how a deed of financial security is given, see section 6 and subsection (8).

(2) For the purposes of subsection (1) the amount required, in relation to an applicant, is: (a) if the applicant nominated both the 10 MHz lot and the 5 MHz lot as its preferred lots – 10 percent of the starting price of the 10 MHz lot; (b) if the applicant nominated only the 10 MHz lot as its preferred lot – 10 percent of the starting price of the 10 MHz lot; (c) if the applicant nominated only the 5 MHz lot as its preferred lot – 10 percent of the starting price of the 5 MHz lot. (3) If an applicant pays a deposit 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 paid a deposit 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 preference deadline or no later than 3 working days after the date of the notice (whichever is the later), pay a deposit or give a deed of financial security (or both) for the amount under subsection (2). (4) If the applicant does not comply with the notice given under subsection (3): (a) if: (i) the applicant nominated both lots as its preferred lots; and (ii) 10 percent of the starting price for the 10 MHz lot is greater than the amount of the deposit paid or the deed of financial security given (or both) by the applicant; and (iii) 10 percent of the starting price for the 5 MHz lot is equal to or less than the amount of the deposit paid or the deed of financial security given (or both) by the applicant; the applicant is taken to have nominated only the 5 MHz lot as its preferred lot; (b) in any other case – the applicant 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 (4). (6) A deed of financial security must be executed by an Australian-owned authorised deposit-taking institution (as defined in the Banking Act 1959) which is a bank. (7) 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. (8) If a deed of financial security is given to the ACMA by email or fax before the preference deadline, the original deed must be received by the ACMA no later than 3 working days after the preference 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. (9) An applicant is taken to have withdrawn its application if: (a) the applicant fails to pay a deposit or give a deed of financial security before the preference deadline; or (b) the ACMA is not satisfied that the person executing a deed of financial security is a person mentioned in subsection (6). (10) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (9).

Division 7—Withdrawal

39 Withdrawal of application

(1) An applicant may withdraw its application before the preference deadline, by giving the ACMA notice in writing. (2) If an applicant who withdraws its application under subsection (1), or who is taken to have withdrawn its application under another section of this instrument, has paid a deposit under section 38, the ACMA must refund the deposit. (3) Subsection (2) is subject to sections 85 and 88. (4) An applicant may not withdraw its application after the preference deadline. (5) An applicant must not be re-admitted to the auction after withdrawing its application.

22 Simplified outline of this Part

This Part deals with the procedures to be undertaken before conducting the auction or allocating spectrum licences for a pre-determined price.

The ACMA must make decisions in relation to the allocation process, including setting deadlines by which persons wishing to participate in the allocation process must give the ACMA completed forms and information. The ACMA must also advertise the auction and prepare an applicant information package.

Persons wishing to participate in the allocation process must complete forms, deeds and declarations, and give them to the ACMA by the relevant deadlines. Some of the forms and declarations will contain information about the associates of the person. The ACMA will use this information to work out whether any applicants are affiliated with each other, or with a previous successful bidder. If there are such affiliations, this may have consequences for an applicant’s ability to participate in the allocation process.

This Part also requires those applicants who are able to participate in the allocation process to pay a deposit, or provide a deed of financial security, in relation to the lots on which those applicants wish to bid.

Part 4—Procedures before auction or allocation for a pre-determined price

Division 1—Simplified outline

22 Simplified outline of this Part

This Part deals with the procedures to be undertaken before conducting the auction or allocating spectrum licences for a pre-determined price.

The ACMA must make decisions in relation to the allocation process, including setting deadlines by which persons wishing to participate in the allocation process must give the ACMA completed forms and information. The ACMA must also advertise the auction and prepare an applicant information package.

Persons wishing to participate in the allocation process must complete forms, deeds and declarations, and give them to the ACMA by the relevant deadlines. Some of the forms and declarations will contain information about the associates of the person. The ACMA will use this information to work out whether any applicants are affiliated with each other, or with a previous successful bidder. If there are such affiliations, this may have consequences for an applicant’s ability to participate in the allocation process.

This Part also requires those applicants who are able to participate in the allocation process to pay a deposit, or provide a deed of financial security, in relation to the lots on which those applicants wish to bid.

Division 2—Preliminary

23 Auction manager

The ACMA must, in writing, appoint a person to manage the auction.

24 Setting application fee

Before the ACMA publishes a notice inviting applications for the auction, it must, in writing, set the amount of the application fee.

25 Application fee not refundable

An application fee paid under this instrument is not refundable in any circumstances, including if an applicant withdraws from the auction before the preference deadline or is not permitted to make a bid on a lot in the auction.

Division 3—Advertising the auction

26 Advertising of auction by ACMA

(1) The ACMA must publish on its website a notice that: (a) describes the parts of the spectrum to be auctioned; and (b) gives a brief description of the way the auction will be conducted; and (c) states that the auction will be conducted in accordance with this instrument; and (d) states that the ACMA may conclude that it can allocate a spectrum licence or licences for lots at a pre-determined price without having to conduct an auction; and (e) invites persons to apply to the ACMA to take part in the auction; and (f) states the date and time (the application deadline) before which: (i) completed application forms must be received by the ACMA; and (ii) the application fee must be paid to the ACMA on behalf of the Commonwealth; and (g) states the date and time (the preference deadline) before which: (i) completed preference nomination forms must be received by the ACMA; and (ii) deposits must be paid to the ACMA on behalf of the Commonwealth or deeds of financial security must be given to the ACMA on behalf of the Commonwealth; and (h) states that applications may only be withdrawn before the preference deadline; and (i) states that the applicant information package 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 auction by any method it chooses.

27 Applicant information package

(1) The applicant information package must contain the following documents and information: (a) the re-allocation declaration; (b) the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Spectrum) Direction 2016; (c) the marketing plan; (d) this instrument; (e) a guide to the auction; (f) a statement that the ACMA may offer to allocate spectrum licences for lots for a pre-determined price; (g) an application form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (h) a deed of financial security form approved by the ACMA; (i) information about providing a deed of financial security as an alternative to a deposit; (j) a deed of acknowledgment form approved by the ACMA, that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument; (k) a deed of confidentiality form approved by the ACMA, that includes a statement that an applicant (or related person of an applicant) agrees not to disclose confidential information before section 17 ceases to apply to the relevant applicant or the related person; (l) statutory declaration forms for the purposes of this instrument; (m) the amount of the application fee for the auction; (n) the application deadline; (o) the preference deadline; (p) advice that the preference deadline is the last time for withdrawal from the auction; (q) the physical address for giving documents to the ACMA; (r) the email address for giving documents to the ACMA; (s) the fax number for giving documents to the ACMA. (2) The applicant information package may also contain other information about the allocation process. (3) The applicant information package must be published on the ACMA’s website. (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.

28 Starting prices

(1) The ACMA must set the starting price for each of: (a) the 10 MHz lot; and (b) the 5 MHz lot.

Note: The starting price for a lot must be set in a manner consistent with the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Sepectrum) Direction 2016.

(2) After setting the starting prices, the ACMA must approve a preference nomination form. (3) After approving the preference nomination form, the ACMA must publish the starting prices and the preference nomination form on its website.

Division 4—Application to participate in auction

29 Making an application

(1) A person may apply to become registered as a bidder in the auction by: (a) giving the ACMA a completed application form; and (b) giving the ACMA a deed of acknowledgement; and (c) giving the ACMA a deed of confidentiality executed by the applicant; and (d) paying the application fee; before the application deadline.

Note: For information on how the application fee must be paid, see section 7.

(2) An applicant may give the ACMA an updated document for paragraphs (1)(a) to (c) at any time until the application deadline, but not after the deadline.

30 Applicants to notify ACMA if application information incorrect

If an applicant knows that any of the information in the application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.

31 Applicant to provide statutory declaration

(1) After the application deadline, the ACMA must: (a) give each applicant details about the identity of all other applicants, the persons identified as the associates of other applicants, and all previous successful bidders; and (b) ask each applicant to make a statutory declaration stating whether the applicant is affiliated with another applicant or a previous successful bidder and, if so, identifying the other applicant or the previous successful bidder and giving details of the affiliation.

Note: A previous successful bidder may also be an applicant.

(2) The ACMA must state a deadline, at least 5 working days after the date of the request, before which the statutory declaration must be received by the ACMA.

32 Failure to provide statutory declaration

(1) If an applicant does not give the ACMA a statutory declaration in accordance with section 31, the applicant is taken to have withdrawn its application. (2) The ACMA must tell an applicant in writing if it is taken to have withdrawn under subsection (1).

33 Procedure if ACMA satisfied applicants affiliated

(1) If the ACMA is satisfied that 2 or more applicants are affiliated, the ACMA must, in writing, notify the affiliated applicants that: (a) the ACMA is satisfied, on the basis set out in the notice, that the applicants are affiliated; and (b) to participate in the auction the affiliated applicants must: (i) withdraw the applications of all the affiliated applicants and submit a new application under section 34; or (ii) withdraw the applications of all but one of the affiliated applicants. (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 10 working days, each affiliated applicant is taken to have withdrawn its application. (4) If the affiliated applicants notify the ACMA that they have decided to take the option in subparagraph (1)(b)(ii), and more than one affiliated applicant does not withdraw its application by the preference deadline, 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).

34 Requirement for new application

(1) If a group of affiliated applicants notified by the ACMA under subsection 33(1) decides 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 33(1): (a) give the ACMA a completed application form; and (b) pay the application fee.

Note: For information on how the application fee must be paid, see section 7.

(3) If the ACMA receives a completed application form and application fee 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 as the associates of other applicants. (4) The updated details do not need to include details about those applicants who have already withdrawn their applications. (5) The new applicant must, no later than 3 working days after the ACMA gives the new applicant the updated details (or, if the ACMA agrees to a later time, the agreed time), give the ACMA: (a) a deed of acknowledgement; and (b) a deed of confidentiality executed by the new applicant; and (c) a statutory declaration that the new applicant is not affiliated with any other applicant in the updated details. (6) The ACMA must not accept a new application under this section unless it is satisfied that the new applicant is not affiliated with any applicant who has not withdrawn its application, including another new applicant.

35 Procedure if ACMA satisfied that applicant is affiliated with a previous successful bidder

If the ACMA is satisfied that: (a) an applicant is affiliated with a previous successful bidder; and (b) that previous successful bidder is not also an applicant; the ACMA must, in writing, notify the applicant and tell it the basis on which the ACMA is satisfied the applicant is affiliated with a previous successful bidder.

Note 1: If the previous successful bidder is also an applicant, section 33 applies.

Note 2: An applicant who is affiliated with a previous successful bidder may not be able to nominate a particular lot, or both lots, as its preferred lots under section 37.

Note 3: An applicant who is affiliated with a previous successful bidder may not be able to bid on the 5 MHz lot in particular circumstances under Schedule 1.

Division 5—Setting the bid increment percentage

36 Bid increment percentage

After the application deadline, the ACMA must set the bid increment percentage for each lot as a percentage of the starting price for the lot in the first round, and of the specified price for the lot in any other round.

Note: The auction manager may vary the percentage set under section 36 – see clause 6 of Schedule 1.

Division 6—Preference nomination and financial security

37 Giving preference nomination form

(1) An applicant must nominate its preferred lots by giving the ACMA a completed preference nomination form before the preference deadline. (2) Subject to subsections (3) and (4), an applicant may nominate: (a) the 10 MHz lot; or (b) the 5 MHz lot; or (c) both the 10 MHz lot and the 5 MHz lot; as its preferred lots.

Note 1: If an applicant becoming the winning bidder for one of the lots would exceed the allocation limits, subsections (3) and (4) prevent that applicant from nominating that lot as one of its preferred lots.

Note 2: If an applicant becoming the winning bidder for both lots would result in the applicant being able to use spectrum in excess of the allocation limits, Schedule 1 prevents that applicant from bidding on the 5 MHz lot if the applicant is the winning bidder for the 10 MHz lot.

(3) If: (a) the applicant is, or is affiliated with, a previous successful bidder; and (b) the aggregate of: (i) the lot size of the 10 MHz lot; and (ii) the part of the spectrum (if any) that the applicant, or the specified group of persons that includes the applicant, may use as a result of the allocation of spectrum licences under the previous allocation determination; exceeds the allocation limits; the applicant must not nominate the 10 MHz lot as one of its preferred lots.

Note 1: An applicant’s ability to nominate preferred lots in the auction is restricted by the allocation limits. In particular, the applicant’s ability to nominate preferred lots in the auction may be restricted as a result of the application of the allocation limits to the lots to be auctioned under this instrument and the spectrum licences allocated under the previous allocation determination.

Note 2: An applicant’s preferred lots may also be affected by subsection (4) and by subsection 38(4).

(4) If: (a) the applicant is, or is affiliated with, a previous successful bidder; and (b) the aggregate of: (i) the lot size of the 5 MHz lot; and (ii) the part of the spectrum (if any) that the applicant, or the specified group of persons that includes the applicant, may use as a result of the allocation of spectrum licences under the previous allocation determination; exceeds the allocation limits; the applicant must not nominate the 5 MHz lot as one of its preferred lots.

Note 1: An applicant’s ability to nominate preferred lots in the auction is restricted by the allocation limits. In particular, the applicant’s ability to nominate preferred lots in the auction may be restricted as a result of the application of the allocation limits to the lots to be auctioned under this instrument and the spectrum licences allocated under the previous allocation determination.

Note 2: As a result of the allocation limits, if this subsection prevents an applicant from nominating the 5 MHz lot as one of its preferred lots, subsection (3) will prevent the applicant from nominating the 10 MHz lot and, as a result, both subsections have the effect of preventing the applicant from being allocated a spectrum licence under this instrument, and subsection (6) provides that the applicant is taken to have withdrawn its application.

(5) An applicant may change the preferred lots nominated by giving the ACMA a new completed preference nomination form at any time until the preference deadline, but not after the deadline. (6) If: (a) an applicant does not nominate its preferred lots by the preference deadline; or (b) subsection (4) applies to an applicant; the applicant is taken to have withdrawn its application. (7) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (6).

38 Deposit or deed of financial security required

(1) An applicant must, before the preference deadline: (a) pay a deposit of an amount to the ACMA on behalf of the Commonwealth; or (b) give the ACMA on behalf of the Commonwealth a deed of financial security, for an amount; or (c) pay a deposit of part of an amount and give a deed of financial security for the remainder.

Note: For information on how a deposit is paid, see section 7. For information on how a deed of financial security is given, see section 6 and subsection (8).

(2) For the purposes of subsection (1) the amount required, in relation to an applicant, is: (a) if the applicant nominated both the 10 MHz lot and the 5 MHz lot as its preferred lots – 10 percent of the starting price of the 10 MHz lot; (b) if the applicant nominated only the 10 MHz lot as its preferred lot – 10 percent of the starting price of the 10 MHz lot; (c) if the applicant nominated only the 5 MHz lot as its preferred lot – 10 percent of the starting price of the 5 MHz lot. (3) If an applicant pays a deposit 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 paid a deposit 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 preference deadline or no later than 3 working days after the date of the notice (whichever is the later), pay a deposit or give a deed of financial security (or both) for the amount under subsection (2). (4) If the applicant does not comply with the notice given under subsection (3): (a) if: (i) the applicant nominated both lots as its preferred lots; and (ii) 10 percent of the starting price for the 10 MHz lot is greater than the amount of the deposit paid or the deed of financial security given (or both) by the applicant; and (iii) 10 percent of the starting price for the 5 MHz lot is equal to or less than the amount of the deposit paid or the deed of financial security given (or both) by the applicant; the applicant is taken to have nominated only the 5 MHz lot as its preferred lot; (b) in any other case – the applicant 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 (4). (6) A deed of financial security must be executed by an Australian-owned authorised deposit-taking institution (as defined in the Banking Act 1959) which is a bank. (7) 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. (8) If a deed of financial security is given to the ACMA by email or fax before the preference deadline, the original deed must be received by the ACMA no later than 3 working days after the preference 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. (9) An applicant is taken to have withdrawn its application if: (a) the applicant fails to pay a deposit or give a deed of financial security before the preference deadline; or (b) the ACMA is not satisfied that the person executing a deed of financial security is a person mentioned in subsection (6). (10) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (9).

Division 7—Withdrawal

39 Withdrawal of application

(1) An applicant may withdraw its application before the preference deadline, by giving the ACMA notice in writing. (2) If an applicant who withdraws its application under subsection (1), or who is taken to have withdrawn its application under another section of this instrument, has paid a deposit under section 38, the ACMA must refund the deposit. (3) Subsection (2) is subject to sections 85 and 88. (4) An applicant may not withdraw its application after the preference deadline. (5) An applicant must not be re-admitted to the auction after withdrawing its application.

23 Auction manager

The ACMA must, in writing, appoint a person to manage the auction.

24 Setting application fee

Before the ACMA publishes a notice inviting applications for the auction, it must, in writing, set the amount of the application fee.

25 Application fee not refundable

An application fee paid under this instrument is not refundable in any circumstances, including if an applicant withdraws from the auction before the preference deadline or is not permitted to make a bid on a lot in the auction.

Part 4—Procedures before auction or allocation for a pre-determined price

Division 1—Simplified outline

22 Simplified outline of this Part

This Part deals with the procedures to be undertaken before conducting the auction or allocating spectrum licences for a pre-determined price.

The ACMA must make decisions in relation to the allocation process, including setting deadlines by which persons wishing to participate in the allocation process must give the ACMA completed forms and information. The ACMA must also advertise the auction and prepare an applicant information package.

Persons wishing to participate in the allocation process must complete forms, deeds and declarations, and give them to the ACMA by the relevant deadlines. Some of the forms and declarations will contain information about the associates of the person. The ACMA will use this information to work out whether any applicants are affiliated with each other, or with a previous successful bidder. If there are such affiliations, this may have consequences for an applicant’s ability to participate in the allocation process.

This Part also requires those applicants who are able to participate in the allocation process to pay a deposit, or provide a deed of financial security, in relation to the lots on which those applicants wish to bid.

Division 2—Preliminary

23 Auction manager

The ACMA must, in writing, appoint a person to manage the auction.

24 Setting application fee

Before the ACMA publishes a notice inviting applications for the auction, it must, in writing, set the amount of the application fee.

25 Application fee not refundable

An application fee paid under this instrument is not refundable in any circumstances, including if an applicant withdraws from the auction before the preference deadline or is not permitted to make a bid on a lot in the auction.

Division 3—Advertising the auction

26 Advertising of auction by ACMA

(1) The ACMA must publish on its website a notice that: (a) describes the parts of the spectrum to be auctioned; and (b) gives a brief description of the way the auction will be conducted; and (c) states that the auction will be conducted in accordance with this instrument; and (d) states that the ACMA may conclude that it can allocate a spectrum licence or licences for lots at a pre-determined price without having to conduct an auction; and (e) invites persons to apply to the ACMA to take part in the auction; and (f) states the date and time (the application deadline) before which: (i) completed application forms must be received by the ACMA; and (ii) the application fee must be paid to the ACMA on behalf of the Commonwealth; and (g) states the date and time (the preference deadline) before which: (i) completed preference nomination forms must be received by the ACMA; and (ii) deposits must be paid to the ACMA on behalf of the Commonwealth or deeds of financial security must be given to the ACMA on behalf of the Commonwealth; and (h) states that applications may only be withdrawn before the preference deadline; and (i) states that the applicant information package 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 auction by any method it chooses.

27 Applicant information package

(1) The applicant information package must contain the following documents and information: (a) the re-allocation declaration; (b) the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Spectrum) Direction 2016; (c) the marketing plan; (d) this instrument; (e) a guide to the auction; (f) a statement that the ACMA may offer to allocate spectrum licences for lots for a pre-determined price; (g) an application form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (h) a deed of financial security form approved by the ACMA; (i) information about providing a deed of financial security as an alternative to a deposit; (j) a deed of acknowledgment form approved by the ACMA, that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument; (k) a deed of confidentiality form approved by the ACMA, that includes a statement that an applicant (or related person of an applicant) agrees not to disclose confidential information before section 17 ceases to apply to the relevant applicant or the related person; (l) statutory declaration forms for the purposes of this instrument; (m) the amount of the application fee for the auction; (n) the application deadline; (o) the preference deadline; (p) advice that the preference deadline is the last time for withdrawal from the auction; (q) the physical address for giving documents to the ACMA; (r) the email address for giving documents to the ACMA; (s) the fax number for giving documents to the ACMA. (2) The applicant information package may also contain other information about the allocation process. (3) The applicant information package must be published on the ACMA’s website. (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.

28 Starting prices

(1) The ACMA must set the starting price for each of: (a) the 10 MHz lot; and (b) the 5 MHz lot.

Note: The starting price for a lot must be set in a manner consistent with the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Sepectrum) Direction 2016.

(2) After setting the starting prices, the ACMA must approve a preference nomination form. (3) After approving the preference nomination form, the ACMA must publish the starting prices and the preference nomination form on its website.

Division 4—Application to participate in auction

29 Making an application

(1) A person may apply to become registered as a bidder in the auction by: (a) giving the ACMA a completed application form; and (b) giving the ACMA a deed of acknowledgement; and (c) giving the ACMA a deed of confidentiality executed by the applicant; and (d) paying the application fee; before the application deadline.

Note: For information on how the application fee must be paid, see section 7.

(2) An applicant may give the ACMA an updated document for paragraphs (1)(a) to (c) at any time until the application deadline, but not after the deadline.

30 Applicants to notify ACMA if application information incorrect

If an applicant knows that any of the information in the application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.

31 Applicant to provide statutory declaration

(1) After the application deadline, the ACMA must: (a) give each applicant details about the identity of all other applicants, the persons identified as the associates of other applicants, and all previous successful bidders; and (b) ask each applicant to make a statutory declaration stating whether the applicant is affiliated with another applicant or a previous successful bidder and, if so, identifying the other applicant or the previous successful bidder and giving details of the affiliation.

Note: A previous successful bidder may also be an applicant.

(2) The ACMA must state a deadline, at least 5 working days after the date of the request, before which the statutory declaration must be received by the ACMA.

32 Failure to provide statutory declaration

(1) If an applicant does not give the ACMA a statutory declaration in accordance with section 31, the applicant is taken to have withdrawn its application. (2) The ACMA must tell an applicant in writing if it is taken to have withdrawn under subsection (1).

33 Procedure if ACMA satisfied applicants affiliated

(1) If the ACMA is satisfied that 2 or more applicants are affiliated, the ACMA must, in writing, notify the affiliated applicants that: (a) the ACMA is satisfied, on the basis set out in the notice, that the applicants are affiliated; and (b) to participate in the auction the affiliated applicants must: (i) withdraw the applications of all the affiliated applicants and submit a new application under section 34; or (ii) withdraw the applications of all but one of the affiliated applicants. (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 10 working days, each affiliated applicant is taken to have withdrawn its application. (4) If the affiliated applicants notify the ACMA that they have decided to take the option in subparagraph (1)(b)(ii), and more than one affiliated applicant does not withdraw its application by the preference deadline, 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).

34 Requirement for new application

(1) If a group of affiliated applicants notified by the ACMA under subsection 33(1) decides 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 33(1): (a) give the ACMA a completed application form; and (b) pay the application fee.

Note: For information on how the application fee must be paid, see section 7.

(3) If the ACMA receives a completed application form and application fee 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 as the associates of other applicants. (4) The updated details do not need to include details about those applicants who have already withdrawn their applications. (5) The new applicant must, no later than 3 working days after the ACMA gives the new applicant the updated details (or, if the ACMA agrees to a later time, the agreed time), give the ACMA: (a) a deed of acknowledgement; and (b) a deed of confidentiality executed by the new applicant; and (c) a statutory declaration that the new applicant is not affiliated with any other applicant in the updated details. (6) The ACMA must not accept a new application under this section unless it is satisfied that the new applicant is not affiliated with any applicant who has not withdrawn its application, including another new applicant.

35 Procedure if ACMA satisfied that applicant is affiliated with a previous successful bidder

If the ACMA is satisfied that: (a) an applicant is affiliated with a previous successful bidder; and (b) that previous successful bidder is not also an applicant; the ACMA must, in writing, notify the applicant and tell it the basis on which the ACMA is satisfied the applicant is affiliated with a previous successful bidder.

Note 1: If the previous successful bidder is also an applicant, section 33 applies.

Note 2: An applicant who is affiliated with a previous successful bidder may not be able to nominate a particular lot, or both lots, as its preferred lots under section 37.

Note 3: An applicant who is affiliated with a previous successful bidder may not be able to bid on the 5 MHz lot in particular circumstances under Schedule 1.

Division 5—Setting the bid increment percentage

36 Bid increment percentage

After the application deadline, the ACMA must set the bid increment percentage for each lot as a percentage of the starting price for the lot in the first round, and of the specified price for the lot in any other round.

Note: The auction manager may vary the percentage set under section 36 – see clause 6 of Schedule 1.

Division 6—Preference nomination and financial security

37 Giving preference nomination form

(1) An applicant must nominate its preferred lots by giving the ACMA a completed preference nomination form before the preference deadline. (2) Subject to subsections (3) and (4), an applicant may nominate: (a) the 10 MHz lot; or (b) the 5 MHz lot; or (c) both the 10 MHz lot and the 5 MHz lot; as its preferred lots.

Note 1: If an applicant becoming the winning bidder for one of the lots would exceed the allocation limits, subsections (3) and (4) prevent that applicant from nominating that lot as one of its preferred lots.

Note 2: If an applicant becoming the winning bidder for both lots would result in the applicant being able to use spectrum in excess of the allocation limits, Schedule 1 prevents that applicant from bidding on the 5 MHz lot if the applicant is the winning bidder for the 10 MHz lot.

(3) If: (a) the applicant is, or is affiliated with, a previous successful bidder; and (b) the aggregate of: (i) the lot size of the 10 MHz lot; and (ii) the part of the spectrum (if any) that the applicant, or the specified group of persons that includes the applicant, may use as a result of the allocation of spectrum licences under the previous allocation determination; exceeds the allocation limits; the applicant must not nominate the 10 MHz lot as one of its preferred lots.

Note 1: An applicant’s ability to nominate preferred lots in the auction is restricted by the allocation limits. In particular, the applicant’s ability to nominate preferred lots in the auction may be restricted as a result of the application of the allocation limits to the lots to be auctioned under this instrument and the spectrum licences allocated under the previous allocation determination.

Note 2: An applicant’s preferred lots may also be affected by subsection (4) and by subsection 38(4).

(4) If: (a) the applicant is, or is affiliated with, a previous successful bidder; and (b) the aggregate of: (i) the lot size of the 5 MHz lot; and (ii) the part of the spectrum (if any) that the applicant, or the specified group of persons that includes the applicant, may use as a result of the allocation of spectrum licences under the previous allocation determination; exceeds the allocation limits; the applicant must not nominate the 5 MHz lot as one of its preferred lots.

Note 1: An applicant’s ability to nominate preferred lots in the auction is restricted by the allocation limits. In particular, the applicant’s ability to nominate preferred lots in the auction may be restricted as a result of the application of the allocation limits to the lots to be auctioned under this instrument and the spectrum licences allocated under the previous allocation determination.

Note 2: As a result of the allocation limits, if this subsection prevents an applicant from nominating the 5 MHz lot as one of its preferred lots, subsection (3) will prevent the applicant from nominating the 10 MHz lot and, as a result, both subsections have the effect of preventing the applicant from being allocated a spectrum licence under this instrument, and subsection (6) provides that the applicant is taken to have withdrawn its application.

(5) An applicant may change the preferred lots nominated by giving the ACMA a new completed preference nomination form at any time until the preference deadline, but not after the deadline. (6) If: (a) an applicant does not nominate its preferred lots by the preference deadline; or (b) subsection (4) applies to an applicant; the applicant is taken to have withdrawn its application. (7) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (6).

38 Deposit or deed of financial security required

(1) An applicant must, before the preference deadline: (a) pay a deposit of an amount to the ACMA on behalf of the Commonwealth; or (b) give the ACMA on behalf of the Commonwealth a deed of financial security, for an amount; or (c) pay a deposit of part of an amount and give a deed of financial security for the remainder.

Note: For information on how a deposit is paid, see section 7. For information on how a deed of financial security is given, see section 6 and subsection (8).

(2) For the purposes of subsection (1) the amount required, in relation to an applicant, is: (a) if the applicant nominated both the 10 MHz lot and the 5 MHz lot as its preferred lots – 10 percent of the starting price of the 10 MHz lot; (b) if the applicant nominated only the 10 MHz lot as its preferred lot – 10 percent of the starting price of the 10 MHz lot; (c) if the applicant nominated only the 5 MHz lot as its preferred lot – 10 percent of the starting price of the 5 MHz lot. (3) If an applicant pays a deposit 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 paid a deposit 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 preference deadline or no later than 3 working days after the date of the notice (whichever is the later), pay a deposit or give a deed of financial security (or both) for the amount under subsection (2). (4) If the applicant does not comply with the notice given under subsection (3): (a) if: (i) the applicant nominated both lots as its preferred lots; and (ii) 10 percent of the starting price for the 10 MHz lot is greater than the amount of the deposit paid or the deed of financial security given (or both) by the applicant; and (iii) 10 percent of the starting price for the 5 MHz lot is equal to or less than the amount of the deposit paid or the deed of financial security given (or both) by the applicant; the applicant is taken to have nominated only the 5 MHz lot as its preferred lot; (b) in any other case – the applicant 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 (4). (6) A deed of financial security must be executed by an Australian-owned authorised deposit-taking institution (as defined in the Banking Act 1959) which is a bank. (7) 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. (8) If a deed of financial security is given to the ACMA by email or fax before the preference deadline, the original deed must be received by the ACMA no later than 3 working days after the preference 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. (9) An applicant is taken to have withdrawn its application if: (a) the applicant fails to pay a deposit or give a deed of financial security before the preference deadline; or (b) the ACMA is not satisfied that the person executing a deed of financial security is a person mentioned in subsection (6). (10) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (9).

Division 7—Withdrawal

39 Withdrawal of application

(1) An applicant may withdraw its application before the preference deadline, by giving the ACMA notice in writing. (2) If an applicant who withdraws its application under subsection (1), or who is taken to have withdrawn its application under another section of this instrument, has paid a deposit under section 38, the ACMA must refund the deposit. (3) Subsection (2) is subject to sections 85 and 88. (4) An applicant may not withdraw its application after the preference deadline. (5) An applicant must not be re-admitted to the auction after withdrawing its application.

26 Advertising of auction by ACMA

(1) The ACMA must publish on its website a notice that: (a) describes the parts of the spectrum to be auctioned; and (b) gives a brief description of the way the auction will be conducted; and (c) states that the auction will be conducted in accordance with this instrument; and (d) states that the ACMA may conclude that it can allocate a spectrum licence or licences for lots at a pre-determined price without having to conduct an auction; and (e) invites persons to apply to the ACMA to take part in the auction; and (f) states the date and time (the application deadline) before which: (i) completed application forms must be received by the ACMA; and (ii) the application fee must be paid to the ACMA on behalf of the Commonwealth; and (g) states the date and time (the preference deadline) before which: (i) completed preference nomination forms must be received by the ACMA; and (ii) deposits must be paid to the ACMA on behalf of the Commonwealth or deeds of financial security must be given to the ACMA on behalf of the Commonwealth; and (h) states that applications may only be withdrawn before the preference deadline; and (i) states that the applicant information package 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 auction by any method it chooses.

27 Applicant information package

(1) The applicant information package must contain the following documents and information: (a) the re-allocation declaration; (b) the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Spectrum) Direction 2016; (c) the marketing plan; (d) this instrument; (e) a guide to the auction; (f) a statement that the ACMA may offer to allocate spectrum licences for lots for a pre-determined price; (g) an application form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (h) a deed of financial security form approved by the ACMA; (i) information about providing a deed of financial security as an alternative to a deposit; (j) a deed of acknowledgment form approved by the ACMA, that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument; (k) a deed of confidentiality form approved by the ACMA, that includes a statement that an applicant (or related person of an applicant) agrees not to disclose confidential information before section 17 ceases to apply to the relevant applicant or the related person; (l) statutory declaration forms for the purposes of this instrument; (m) the amount of the application fee for the auction; (n) the application deadline; (o) the preference deadline; (p) advice that the preference deadline is the last time for withdrawal from the auction; (q) the physical address for giving documents to the ACMA; (r) the email address for giving documents to the ACMA; (s) the fax number for giving documents to the ACMA. (2) The applicant information package may also contain other information about the allocation process. (3) The applicant information package must be published on the ACMA’s website. (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.

28 Starting prices

(1) The ACMA must set the starting price for each of: (a) the 10 MHz lot; and (b) the 5 MHz lot.

Note: The starting price for a lot must be set in a manner consistent with the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Sepectrum) Direction 2016.

(2) After setting the starting prices, the ACMA must approve a preference nomination form. (3) After approving the preference nomination form, the ACMA must publish the starting prices and the preference nomination form on its website.