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44 Offer of spectrum licence and decision on pre-determined price

(1) If the ACMA considers under subsection 41(1) that it may allocate a spectrum licence for lots to an applicant without having to conduct an auction, the ACMA may offer the applicant a spectrum licence for the lots to be included in that licence. (2) The ACMA will send the applicant, by registered mail: (a) a draft of the spectrum licence; and (b) a notice stating: (i) that the applicant is offered a spectrum licence for the lots to be included in that licence; and (ii) the amount of the upfront pre-determined price for the licence offered to the applicant; and (iii) the amount of the delayed pre-determined price for the licence offered to the applicant; and (iv) the amount of any deposit paid by the applicant and held by the ACMA or the Commonwealth; and (v) the balance of the upfront pre-determined price. (3) An applicant who wishes to accept the ACMA’s offer must do so by notifying the ACMA in writing within 10 working days of receiving the offer and agreeing, in writing, either: (a) to pay the balance of the upfront pre-determined price for the spectrum licence in accordance with section 45; or (b) to pay the delayed pre-determined price for the spectrum licence in accordance with section 46.

Note: The delayed pre-determined price for a spectrum licence is the sum of the deposit paid (if any) in addition to the first instalment, the second instalment and the third instalment. If a deposit has been paid, the amount of the deposit reduces the amount of the first instalment.

(4) If an applicant accepts the offer of the spectrum licence and agrees to pay the balance of the upfront pre-determined price for the spectrum licence in accordance with section 45, the applicant is entitled to be issued the spectrum licence offered to it on payment of the balance of the upfront pre-determined price in accordance with section 45. (5) Subject to subsection (6), if an applicant accepts the offer of the spectrum licence and agrees to pay the delayed pre-determined price for the spectrum licence in accordance with section 46, the applicant is entitled to be issued the spectrum licence offered to it on payment of the first instalment in accordance with section 46.

Note 1: If an applicant does not accept the offer of a spectrum licence, section 47 applies.

Note 2: For the issue of spectrum licences, see section 62 of the Act.

(6) If an applicant accepts the offer of the spectrum licence and agrees to pay the delayed pre-determined price for the spectrum licence in accordance with section 46, the applicant is not entitled to be issued a spectrum licence unless the applicant gives the ACMA an irrevocable bank guarantee securing the secured amount, issued by an Australian-owned authorised deposit-taking institution (as defined in the Banking Act 1959) which is a bank, in a form approved by the ACMA (delayed pre-determined price bank guarantee), by no later than the date mentioned in paragraph 46(2)(a).

Note 1: If the applicant fails to pay an instalment other than the first instalment, the applicant may be in breach of the licence condition required to be included in a spectrum licence by section 67 of the Act.

Note 2: If either, or both, the second instalment and third instalment are not paid in accordance with section 46, the ACMA or the Commonwealth may require the authorised deposit-taking institution that has issued the delayed pre-determined price bank guarantee to pay the amount secured by the delayed pre-determined price bank guarantee.

Note 3: See section 90, in relation to the rights of the ACMA and the Commonwealth.

(7) If a spectrum licence is issued to an applicant in accordance with subsection (5), each of the first instalment, the second instalment and the third instalment is not refundable in any circumstances. (8) If a delayed pre-determined price bank guarantee is given to the ACMA by email or fax before the date mentioned in subsection (6), the original guarantee must be received by the ACMA no later than 3 working days after that date (or, if the ACMA agrees to a later time, the agreed time) for the guarantee to be taken to have been given to the ACMA. (9) For the purposes of subsection (6), the secured amount is: (a) in the period commencing on the date mentioned in paragraph 46(2)(a) and ending on the date (if any) the second instalment is paid – 5 per cent of the sum of the second instalment and the third instalment; (b) in the period commencing on the day after the date the second instalment is paid and ending on the date (if any) the third instalment is paid – 5 per cent of the third instalment.