This Part deals with the procedures to be undertaken in conducting an auction.
The ACMA must register eligible applicants as bidders in the auction. The ACMA must also set the commencement of the auction, and give this information to bidders.
The auction is to be conducted in accordance with the rules in Schedule 1. Bidding is to occur by the auction system made available by the ACMA. However, the auction manager may permit bids to be made by other methods in particular circumstances, and may also allow bids to be made outside of rounds in particular circumstances. The auction manager may also restart, cancel, or take other specified action in relation to, the auction in exceptional circumstances.
During the auction, bidders must not be affiliated with each other, and must report any affiliations with each other, or with a previous successful bidder, to the ACMA.
Division 2—Application of this Part
51 Lots to which this Part applies
(1) This Part applies in relation to the 10 MHz lot and the 5 MHz lot.
(2) However, this Part does not apply in relation to a lot if:
(a) the lot is included in a spectrum licence that is offered to an applicant under Part 5, and the applicant accepts that offer; or
(b) the ACMA decides under section 47 to remove the lot from the allocation process.
Division 3—Registration of bidders
52 Register of bidders
(1) The ACMA must maintain a register of bidders in the auction in electronic form.
(2) For each bidder, the register must contain the following:
(a) the bidder’s name;
(b) the bidder’s postal address;
(c) the bidder’s email address;
(d) the bidder’s telephone number;
(e) the name, position, postal address, email address and telephone number of a contact person for the bidder;
(f) the bidder’s preferred lots, reduced (if required) as a result of subsection 38(4), or as a result of the allocation of spectrum licences under Part 5;
(g) the bidder’s ACN, ARBN or ABN;
(h) the names of the bidder’s associates and the nature of their association with the bidder.
(3) The register may also contain any other information that the ACMA considers necessary or convenient for conducting the auction.
(4) The ACMA must make changes to the register as soon as practicable after:
(a) a bidder tells the ACMA of a change in the bidder’s name or contact information, including a change of information for the bidder’s contact person; or
(b) the ACMA becomes aware that any of the information on the register is not correct.
53 Registration process
(1) The ACMA must register a person as a bidder in the auction only if:
(a) the preference deadline has passed; and
(b) the person has:
(i) made a valid application under section 29 or 34; and
(ii) given the ACMA a completed preference nomination form under section 37; and
(iii) paid a deposit or given a deed of financial security (or both) under section 38; and
(c) if a deed of financial security is given – the ACMA is satisfied that the person who executed the deed is a person mentioned in subsection 38(6).
(2) After the preference deadline, the ACMA must, in writing, tell a bidder that the bidder has been registered and may participate in the auction, and give the bidder the following:
(a) a copy of the information recorded on the register for the bidder;
(b) the ACMA’s email address and telephone and fax numbers available for use by bidders;
(c) information about accessing and using the auction system;
(d) any items required for access;
(e) information about how to bid by alternative means if the bidder is unable to submit a bid using the auction system.
Note: Information provided to a bidder under this section for the purpose of participating in the auction is defined as confidential information in section 16.
54 Bidder to notify ACMA if register incorrect
If a bidder knows that any of the information about the bidder or the bidder’s associates on the register is incorrect, the bidder must immediately give the ACMA the correct information.
55 Preparation for bidding
The ACMA must give each bidder an opportunity to try the auction system before the auction commences.
56 Security of auction
(1) A bidder must ensure that any items provided to the bidder for the purpose of accessing the auction system are kept secure during the auction period.
(2) The bidder must notify the ACMA immediately if any item provided to the bidder for the purpose of accessing the auction system is lost or stolen during the auction period.
Division 4—Setting elements of the auction
57 Auction procedures
(1) The first round of the auction starts on the date and time for that round set by the auction manager under subsection 58(1).
(2) The rounds of the auction are to be scheduled, and the auction is to be conducted, in accordance with the rules in Schedule 1.
58 First and second rounds
(1) After the preference deadline, the auction manager must set the start date and time of the first and second rounds of the auction.
(2) The auction manager must notify bidders of the start date and time of the first and second rounds at least 10 working days before the start date of the first round.
Division 5—Procedures for bids not using the auction system and for exceptional circumstances
59 Auction manager’s discretion to accept bids
(1) The auction manager may permit a bidder to make a bid during a round by a method other than the auction system if the auction manager is satisfied that the bidder is not able to make a bid for the round using the auction system.
Note: The auction manager may permit a bidder to make a bid by a method that requires the verification that the bidder is making the bid.
(2) The auction manager may permit a bidder to make a bid for a round after the end time of the round if the auction manager is satisfied that the bidder could not make the bid during the round because of technical or communication problems.
(3) A bid permitted to be made by the auction manager under subsection (2) is taken to have been made during the round.
(4) The auction manager must not permit a bidder to make a bid under subsection (2) after information about the outcome of the round has been given to bidders.
Note: See clause 2 of Schedule 1 for details of the information about the outcome of the round that will be given to bidders.
60 Action that auction manager may take in exceptional circumstances
(1) If the auction manager is satisfied that the auction is affected by exceptional circumstances, the auction manager may:
(a) make corrections to:
(i) the results of the round of the auction that last ended; and
(ii) information received by a bidder after that round; or
(b) stop the current round of the auction and restart the round; or
(c) cancel the results of one or more auction rounds and restart the auction from the point before those rounds; or
(d) cancel the results of all the auction rounds and restart the auction from the first round; or
(e) stop the auction.
(2) For this section, exceptional circumstances include:
(a) a significant technical difficulty with the auction system; or
(b) a breach of the confidentiality obligations in section 17.
(3) Subsection (2) does not limit what might constitute exceptional circumstances.
Division 6—Affiliations during the auction
61 Affiliation between bidders during auction period not permitted
A bidder must not be affiliated with another bidder during the auction period.
Note: If the ACMA is satisfied that a breach of this provision has occurred the ACMA may take action under section 85.
62 Requirement to report affiliation
If, at any time during the auction period, a bidder believes that it may be an affiliate of another bidder or a previous successful bidder, the bidder must immediately tell the ACMA in writing the identity of the other bidder or the previous successful bidder and give details of the affiliation.
63 Auction continues despite possible affiliation
If the ACMA becomes aware during the auction period that 2 or more bidders may be affiliated, or that a bidder may be affiliated with a previous successful bidder, the auction is to continue and the bidders may continue to participate in the auction.
64 ACMA consideration of affiliation
(1) If the ACMA has reason to believe that 2 or more bidders are affiliated during the auction period, the ACMA must notify the bidders in writing and tell them the basis on which the ACMA believes the bidders are affiliated.
(2) If the ACMA has reason to believe that a bidder is affiliated with a previous successful bidder during the auction period, and the bidder had not made this known to the ACMA before the commencement of the auction period, the ACMA must notify the bidder in writing and tell the bidder the basis on which the ACMA believes that the bidder is affiliated with a previous successful bidder.
(3) If a bidder gave the ACMA information under section 62 about an affiliation with another bidder and the ACMA does not consider that the bidder is affiliated with the other bidder, the ACMA must tell both bidders in writing that the ACMA does not consider them to be affiliated.
(4) If a bidder gave the ACMA information under section 62 about an affiliation with a previous successful bidder and the ACMA does not consider that the bidder is affiliated with the previous successful bidder, the ACMA must tell the bidder in writing that the ACMA does not consider it to be affiliated with the previous successful bidder.