This Part deals with the procedures to be undertaken after conducting the auction.
After the winning bidder for each lot has been identified, the ACMA must notify the unsuccessful bidders and applicants who were not registered as bidders that their confidentiality obligations have ended. The ACMA must give each winning bidder information about the other winning bidders; each winning bidder must then make a statement about whether it is affiliated with any other winning bidder, or a previous successful bidder.
If there is such an affiliation, and if issuing spectrum licences to the winning bidders would breach the allocation limits, the ACMA must not issue spectrum licences to the winning bidders for all the lots won. Instead, the ACMA must only issue spectrum licences that would not result in a breach of the allocation limits.
Each winning bidder will have the choice of paying an upfront winning price, which is the sum of the winning prices for the lots to be included in the spectrum licence, or a delayed winning price, which is the sum of the winning prices for the lots to be included in the spectrum licence plus an additional percentage of that sum, to be paid in three instalments. The first instalment is to be accompanied by a bank guarantee that secures 5 per cent of the second and third instalments.
If a winning bidder fails to pay the upfront winning price or the first auction instalment of the delayed winning price, the winning bidder is not entitled to be issued the licence.
Division 2—Application of this Part
66 This Part applies if an auction is conducted
This Part applies if an auction is conducted under Part 6.
Division 3—Confirmation of auction results
67 Notice and refunds to unsuccessful bidders and withdrawn applicants
(1) As soon as practicable after the end of the auction period, the ACMA must notify each bidder that is not a winning bidder that:
(a) the bidder was unsuccessful in the auction; and
(b) the bidder’s confidentiality obligations under section 17 have ended.
(2) If the unsuccessful bidder paid a deposit, the ACMA must refund the payment no later than 6 months after sending the notice under subsection (1) unless the ACMA has made a decision to retain the deposit under section 85.
Note: Section 85 enables the ACMA to retain a deposit if it is satisfied certain breaches of this instrument have occurred.
(3) As soon as practicable after the end of the auction period, the ACMA must notify each applicant that withdrew, or was taken to have withdrawn, its application that the applicant’s confidentiality obligations under section 17 have ended.
68 Winning bidder to make statement about affiliations
(1) As soon as practicable after the end of the auction period, the ACMA must:
(a) give each winning bidder details about the identity of all other winning bidders; and
(b) ask the bidder to make a statement whether the bidder is an affiliate of another winning bidder or a previous successful bidder and, if so, identifying the other bidder or the previous successful bidder and giving details of the affiliation.
(2) The ACMA must state a deadline, at least 10 working days after the date of the request, before which the statement must be received by the ACMA.
(3) A winning bidder must give the ACMA the statement by the deadline.
Note 1: Giving false or misleading information is a serious offence under section 137.1 of the Criminal Code.
Note 2: Section 136.1 of the Criminal Code also makes it an offence to make a false or misleading statement in connection with an application for a spectrum licence.
69 Notification that winning bidders are affiliated, or winning bidder is affiliated with previous successful bidder
(1) If the ACMA is satisfied that 2 winning bidders have become affiliated after the end of the auction period (but were not affiliated during the auction period), the ACMA must notify the bidders in writing and tell them the basis on which the ACMA is satisfied the bidders are affiliated.
(2) If the ACMA is satisfied that a winning bidder is affiliated with a previous successful bidder, the ACMA must notify the winning bidder in writing and tell the bidder the basis on which the ACMA is satisfied that the bidder and the previous successful bidder are affiliated.
Note: If the previous successful bidder is also a winning bidder, notification is given under subsection (1).
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.
Note: If issuing a spectrum licence for the 5 MHz lot to either of the bidders would exceed the allocation limits, then issuing a spectrum licence for the 10 MHz lot, or for both the 5 MHz and 10 MHz lots, would exceed the allocation limits.
(10) If the ACMA must not issue a spectrum licence for a lot to a bidder under this section, section 80 applies to that lot.
71 Consequences of affiliation with previous successful bidder
(1) If:
(a) the ACMA notifies a winning bidder under subsection 69(2) that it is satisfied the bidder is affiliated with a previous successful bidder; and
(b) the previous successful bidder is not also a winning bidder; and
(c) the number of lots won by the winning bidder, 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:
(d) must not issue spectrum licences to the winning bidder that would exceed the allocation limits; and
(e) must not issue spectrum licences to the winning bidder except in accordance with this section.
(2) If:
(a) the winning bidder won both the 10 MHz lot and the 5 MHz lot; and
(b) issuing a spectrum licence for only the 10 MHz lot to the bidder would not exceed the allocation limits;
the bidder may give a direction to the ACMA specifying either:
(c) that the bidder wishes to be issued a spectrum licence for the 10 MHz lot; or
(d) that the bidder wishes to be issued a spectrum licence for the 5 MHz lot.
(3) The direction must be given by the winning bidder to the ACMA within 5 working days after the winning bidder received notification under subsection 69(2).
(4) 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 the bidder.
(5) If the ACMA does not receive a direction within 5 working days, subject to the Act and this instrument, the ACMA must issue a spectrum licence for the 10 MHz lot to the bidder.
(6) If:
(a) the winning bidder won both the 10 MHz lot and the 5 MHz lot; and
(b) issuing a spectrum licence for only the 10 MHz lot to the bidder would exceed the allocation limits;
then:
(c) the ACMA must not issue a spectrum licence for the 10 MHz lot to the bidder; and
(d) subject to the Act and this instrument, the ACMA must issue a spectrum licence for the 5 MHz lot to the bidder.
(7) If:
(a) the winning bidder won only the 10 MHz lot; and
(b) issuing a spectrum licence for only the 10 MHz lot to the bidder would exceed the allocation limits;
then the ACMA must not issue a spectrum licence for the 10 MHz lot to that bidder.
(8) If issuing a spectrum licence for the 5 MHz lot to the winning bidder would exceed the allocation limits, the ACMA must not issue a spectrum licence for the 10 MHz lot, or the 5 MHz lot, or both, to that bidder.
Note: If issuing a spectrum licence for the 5 MHz lot to the bidder would exceed the allocation limits, then issuing a spectrum licence for the 10 MHz lot, or for both the 5 MHz and 10 MHz lots, would exceed the allocation limits.
(9) If the ACMA must not issue a spectrum licence for a lot to a bidder under this section, section 80 applies to that lot.
Division 4—Payment and issue of spectrum licences
72 The winning price for a lot
The winning price for a lot won by a bidder at auction is:
(a) if there is only one bid on the lot – the starting price for the lot; or
(b) if there is more than one bid on the lot – the highest bid made for the lot by any bidder, during any round, other than the final high bid.
73 The upfront winning price and the delayed winning price
(1) The upfront winning price for a winning bidder is the sum of the winning prices for the lots won by the bidder at auction.
(2) The balance of the upfront winning price for a winning bidder is the upfront winning price less the amount of any deposit paid by the winning bidder.
(3) The delayed winning price for a winning bidder is the sum of:
(a) the deposit paid by the winning bidder for the licence under section 38 (if any);
(b) the first auction instalment for the winning bidder;
(c) the second auction instalment for the winning bidder; and
(d) the third auction instalment for the winning bidder.
Note: The first, second and third auction instalments to be paid in relation to a spectrum licence are calculated by reference to the winning prices for the lots to be included in the licence (see section 75).
Note 2: The sum of the present value of each of the instalments, and of the deposit (if any), is the same as the sum of the winning prices for the lots to be included in the licence, when calculated in accordance with the Radiocommunications (Spectrum Licence Allocation—Residual 700 MHz Spectrum) Direction 2016.
74 Sufficient deposit – issue of spectrum licence without further payment
(1) If, for a winning bidder, the balance of the upfront winning price is less than zero:
(a) the ACMA must refund the deposit in excess of the total of the upfront winning price for the winning bidder; and
(b) the bidder is entitled to be issued a spectrum licence for each part of the spectrum allocated to the winner without further payment.
(2) If, for a winning bidder, the balance of the upfront winning price is zero, the bidder is entitled to be issued a spectrum licence for each part of the spectrum allocated to the winner without further payment.
75 Payment of balance of winning price
(1) If, for a winning bidder, the balance of the upfront winning price is greater than zero, the ACMA must notify the bidder by registered mail of:
(a) the balance of the upfront winning price;
(b) the delayed winning price;
(c) the dates on which the three instalments for the delayed winning price must be paid;
(d) the amounts of those instalments (including the effect of the deposit (if any) paid under section 38 on the first auction instalment); and
(e) the date, not earlier than 10 working days after the date of the notice, by which the bidder must give the ACMA written notice whether it elects to pay:
(i) the balance of the upfront winning price; or
(ii) the delayed winning price.
(2) If a winning bidder gives the ACMA written notice that it elects to pay the balance of the upfront winning price by the date mentioned in paragraph (1)(e):
(a) the ACMA must notify the winning bidder by registered mail that the ACMA has received the bidder’s election; and
(b) the balance of the upfront winning price must be paid by the winning bidder to the ACMA on behalf of the Commonwealth no later than 31 January 2018.
Note: For information on how the balance of the upfront winning price must be paid, see section 7.
(3) If a winning bidder gives the ACMA written notice that it elects to pay the delayed winning price by the date mentioned in paragraph (1)(e):
(a) the ACMA must notify the winning bidder by registered mail that the ACMA has received the bidder’s election; and
(b) the delayed winning price must be paid by the winning bidder to the ACMA on behalf of the Commonwealth in accordance with the following schedule:
(i) an instalment of:
(A) 48.0051 per cent of the gross auction price; less
(B) the deposit (if any) paid by the bidder under section 38;
(the first auction instalment for the winning bidder) must be paid no later than 31 January 2018;
(ii) an instalment of 26.6315 per cent of the gross auction price, multiplied by 1.05 (the second auction instalment for the winning bidder) must be paid no later than 31 January 2019;
(iii) an instalment of 25.3634 per cent of the gross auction price, multiplied by 1.1025 (the third auction instalment for the winning bidder) must be paid no later than 31 January 2020; and
(c) the winning bidder must give the ACMA the delayed winning price bank guarantee in accordance with subsection (7) by the date mentioned in subparagraph (b)(i).
Note: For information on how the delayed winning price must be paid, see section 7.
(4) If the ACMA becomes aware that a notice under subsection (1) contains a material error, the ACMA must give the winning bidder a revised notice by registered mail.
(5) If a revised notice is given under subsection (4):
(a) the ACMA must include in the revised notice a date, not later than 15 working days after the date of the revised notice, by which the bidder may give the ACMA notice whether it has elected to pay the balance of the upfront winning price or the delayed winning price; and
(b) subsections (2) and (3) apply as if the date mentioned in paragraph (1)(e) were the date included in the revised notice; and
(c) any previous notice given by the winning bidder under subsection (2) or (3) is of no effect.
(6) If a winning bidder does not give the ACMA written notice whether it elects to pay the balance of the upfront winning price or the delayed winning price by the date mentioned in paragraph (1)(e), the bidder is deemed to have given the ACMA written notice that it elects to pay the balance of the upfront winning price, under subsection (2).
(7) If a winning bidder gives the ACMA written notice that it elects to pay the delayed winning price by the date mentioned in paragraph (1)(e), the winning bidder is not entitled to be issued a spectrum licence unless the winning bidder gives the ACMA an irrevocable bank guarantee securing the secured auction 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 winning price bank guarantee), no later than the date mentioned in subparagraph (2)(b)(i).
Note 1: If the winning bidder fails to pay an instalment other than the first auction instalment, the winning bidder 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 subsection 75(3), the ACMA or the Commonwealth may require the authorised deposit-taking institution that has issued the delayed winning price bank guarantee to pay the amounts secured by the delayed winning price bank guarantee.
(8) If a spectrum licence is issued to a winning bidder in accordance with subsection 76(2), each of the first auction instalment, the second auction instalment and the third auction instalment is not refundable in any circumstances.
(9) If a delayed winning price bank guarantee is given to the ACMA by email or fax before the date mentioned in subsection (7), 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.
(10) For the purposes of subsection (3), the gross auction price for a winning bidder is worked out as follows:
(a) identify each lot to be included in the licence;
(b) add up the winning price of each such lot.
(11) For the purposes of subsection (7), the secured auction amount is:
(a) in the period commencing on the date mentioned in subparagraph (3)(b)(i) and ending on the date (if any) the second auction instalment is paid – 5 per cent of the sum of the second auction instalment and the third auction instalment;
(b) in the period commencing on the day after the date the second auction instalment is paid and ending on the date (if any) the third auction instalment is paid – 5 per cent of the third auction instalment.
76 Issue of spectrum licence
(1) If a winning bidder:
(a) elects to pay the balance of the upfront winning price; and
(b) pays the balance of the upfront winning price in accordance with subsection 75(2);
the winning bidder is entitled to be issued a spectrum licence for each part of the spectrum allocated to the bidder.
Note: For the issue of spectrum licences, see section 62 of the Act.
(2) If a winning bidder:
(a) elects to pay the delayed winning price; and
(b) pays the first auction instalment in accordance with subparagraph 75(3)(b)(i); and
(c) gives the ACMA the delayed winning price bank guarantee in accordance with subsection 75(7);
the winning bidder is entitled to be issued a spectrum licence for each part of the spectrum allocated to the bidder.
Note 1: If the winning bidder fails to pay an instalment other than the first auction instalment, the winning bidder 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 subsection (3), the ACMA or the Commonwealth may require the authorised deposit-taking institution that has issued the delayed winning price bank guarantee to pay the amount secured by the delayed winning price bank guarantee.
Note 3: See section 90, in relation to the rights of the ACMA and the Commonwealth.
Note 4: For the issue of spectrum licences, see section 62 of the Act.
77 Default
(1) If a winning bidder:
(a) elects to pay the balance of the upfront winning price; and
(b) does not pay the balance of the upfront winning price in accordance with subsection 75(2);
then:
(c) the spectrum licence is not allocated to the winning bidder; and
(d) the allocation of spectrum licences under this instrument to other applicants is not affected; and
(e) section 80 applies to spectrum that, but for this subsection, would have been included in a spectrum licence allocated to the winning bidder.
(2) If a winning bidder:
(a) elects to pay the delayed winning price; and
(b) either, or both:
(i) does not pay the first auction instalment in accordance with subparagraph 75(3)(b)(i); or
(ii) does not give the ACMA the delayed winning price bank guarantee in accordance with subsection 75(7);
then:
(c) the spectrum licence is not allocated to the winning bidder; and
(d) the allocation of spectrum licences under this instrument to other applicants is not affected; and
(e) section 80 applies to spectrum that, but for this subsection, would have been included in a spectrum licence allocated to the winning bidder.
Note 1: If the applicant fails to pay an instalment other than the first auction 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 subsection 75(3), 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.
78 Publication of auction results
The ACMA must announce or publish the following information about the auction after the end of the auction period:
(a) the names of winning bidders;
(b) the spectrum allocated to each winning bidder;
(c) the winning price for each lot won by each winning bidder.