37

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).