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:
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.