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.