70Consequences of affiliation between 2 winning bidders

70 Consequences of affiliation between 2 winning bidders

(1) If: (a) the ACMA notifies 2 winning bidders under subsection 69(1) that it is satisfied the bidders are affiliated (the affiliated winning bidders); and (b) the number of lots won by the affiliated winning bidders, when the lot size of those lots is aggregated with a part of the spectrum that either or both the affiliated winning bidders, or the specified group of persons that includes the affiliated winning bidders, may use as a result of the allocation of spectrum licences under the previous allocation determination, exceeds the allocation limits; the ACMA: (c) must not issue spectrum licences to the affiliated winning bidders that would exceed the allocation limits; and (d) must not issue spectrum licences to the affiliated winning bidders except in accordance with this section.

Note 1: If one of the winning bidders is also a previous successful bidder, any spectrum licences allocated under the previous allocation determination to the previous successful bidder are relevant to an assessment whether issuing spectrum licences to the winning bidders would exceed the allocation limits.

Note 2: As there are only 2 lots, there can only ever be, at most, 2 winning bidders.

(2) If: (a) the ACMA notifies 2 winning bidders under subsection 69(1) that it is satisfied the bidders are affiliated winning bidders; and (b) the ACMA notifies each of those bidders under subsection 69(2) that it is satisfied that those bidders are affiliated with a previous successful bidder; and (c) the previous successful bidder is not also a winning bidder; and (d) the number of lots won by the affiliated winning bidders, when the lot size of those lots is aggregated with the part of the spectrum that the previous successful bidder, or the specified group of persons that includes the previous successful bidder, may use as a result of the allocation of spectrum licences under the previous allocation determination, exceed the allocation limits; the ACMA: (e) must not issue spectrum licences to the affiliated winning bidders that would exceed the allocation limits; and (f) must not issue spectrum licences to the affiliated winning bidders except in accordance with this section. (3) Subject to subsection (9), if the issue of spectrum licences to the affiliated winning bidders for both the 10 MHz lot and the 5 MHz lot would exceed the allocation limits, the bidders may give a direction to the ACMA specifying: (a) if issuing a spectrum licence for only the 10 MHz lot to either of the affiliated winning bidders would exceed the allocation limits – which of the bidders is to be issued a spectrum licence for the 5 MHz lot; (b) in any other case – which of the bidders is to be issued a spectrum licence for the 10 MHz lot. (4) The direction must be given jointly by the affiliated winning bidders and must be given to the ACMA within 5 working days after the bidders received notification under subsection 69(1). (5) Subject to the Act and this instrument, the ACMA must issue a spectrum licence in accordance with that direction, and must not issue a spectrum licence for the other lot to either of the affiliated winning bidders. (6) Subject to subsection (9), if the ACMA does not receive a direction within 5 working days, the ACMA may choose at its discretion: (a) if issuing a spectrum licence for only the 10 MHz lot to either of the affiliated winning bidders would exceed the allocation limits – which of those bidders is to be issued a spectrum licence for the 5 MHz lot; (b) in any other case – which of those bidders is to be issued a spectrum licence for the 10 MHz lot. (7) The ACMA must give written notice to the affiliated winning bidders of its decision under subsection (6). (8) Subject to the Act and this instrument, the ACMA must issue a spectrum licence in accordance with its decision under subsection (6), and must not issue a spectrum licence for the other lot to either of the affiliated winning bidders. (9) If issuing a spectrum licence for the 5 MHz lot to either of the affiliated winning bidders would exceed the allocation limits, the ACMA must not issue any spectrum licences to those bidders.