Part 8

Part 8—Miscellaneous

79 Simplified outline of this Part

This Part sets out rules that apply throughout and after the allocation process, including the following rules.

The ACMA may give notices to applicants or bidders, requiring the production of information or documents.

The ACMA may provide information or documents obtained in the course of the allocation process to the ACCC.

In relation to some breaches of the rules set out in this instrument, the ACMA may make a decision by which it retains a deposit paid by, or enforces the deed of financial security provided by, an applicant or bidder. In this case, the applicant or bidder is not entitled to be issued a spectrum licence. The applicant or bidder may apply to the Federal Court for return of the deposit or the amount paid as a result of enforcing the deed of financial security.

80 Unallocated spectrum

Parts of the spectrum that are offered at auction or for a pre-determined price but not allocated may be later offered for allocation by a procedure to be determined by the ACMA.

Note: The ACMA may make determinations under section 60 of the Act about allocations by auctions or by other procedures.

81 Bidders must not misuse auction system

(1) A bidder must only access and use the auction system in accordance with the information about access and use provided under section 53. (2) A bidder must not attempt to interfere with, disrupt or damage the auction system. (3) A bidder must not attempt to use the auction system to breach a law of the Commonwealth.

82 ACMA may obtain information from applicants and bidders

(1) If the ACMA has reason to believe that an applicant or bidder has information or documents that are relevant to the performance of any of the ACMA’s functions or the exercise of its powers under this instrument, the ACMA may, by written notice, require the applicant or bidder: (a) to give to the ACMA, within the period and in the manner and form specified in the notice, any such information; or (b) to produce to the ACMA, within the period and in the manner specified in the notice, any such documents.

Note: If a requirement in a notice given under this subsection is breached, the ACMA may take action under section 85.

(2) The ACMA may vary a notice given under subsection (1).

83 Use of information and documents by ACMA

(1) The ACMA may use information or documents it obtains in the performance of its functions under this instrument: (a) for the purposes of this instrument, including disclosing or publishing information or documents as provided for in this instrument; and (b) in relation to a spectrum licence issued or to be issued as a result of the allocation process. (2) The ACMA may retain possession of a document or other item given to the ACMA for the purposes of this instrument for as long as necessary for the performance of the ACMA’s functions and exercise of its powers under this instrument or the Act. (3) The ACMA may disclose information or documents in accordance with Part 7A of the Australian Communications and Media Authority Act 2005 or as otherwise authorised by law.

84 ACMA to provide information to ACCC on request

(1) The ACCC may make a request to the ACMA for information in relation to the allocation process or in relation to an applicant or bidder. (2) The ACMA must provide the requested information to the ACCC if the ACMA has the information. (3) Without limiting subsection (1), information that the ACCC may request includes the following: (a) completed application forms; (b) completed preference nomination forms; (c) deeds of confidentiality; (d) information about an applicant’s associates and affiliations; (e) information about any breaches of confidentiality obligations; (f) information about the outcomes of procedures in Part 5; (g) information about bidding during the auction; (h) information about the outcomes of the procedures in Part 7.

85 Retention of deposit or enforcement of deed for breach of procedures

(1) The ACMA on behalf of the Commonwealth may retain a deposit made by an applicant or bidder, or enforce a deed of financial security given by an applicant or bidder; if: (a) the ACMA is satisfied that: (i) the applicant or bidder, or a related person of the applicant or bidder, breached a provision of this instrument; and (ii) the breach affected, or may have affected, the outcome of the allocation process; or (b) the applicant failed to pay the balance of the upfront pre-determined price as required under subsection 45(2); or (c) the applicant failed to pay the first instalment as required under paragraph 46(2)(a); or (d) the applicant failed to give the ACMA the delayed pre-determined price bank guarantee in accordance with subsection 44(6); (e) the ACMA is satisfied that the bidder breached section 61; or (f) the bidder is a winning bidder who failed to give the statement required under section 68; or (g) the bidder is a winning bidder who failed to pay the balance of the upfront winning price as required under paragraph 75(2)(b); or (h) the bidder is a winning bidder who failed to pay the first auction instalment as required under subparagraph 75(3)(b)(i); or (i) the bidder is a winning bidder who failed to give the ACMA the delayed winning price bank guarantee in accordance with subsection 75(7); or (j) the ACMA is satisfied that the applicant or bidder, or a related person of the applicant or bidder, breached the confidentiality obligations under section 17 after the end of the auction period (but before the confidentiality obligations came to an end); or (k) the applicant or bidder failed to comply with a requirement in a notice given under subsection 82(1). (2) The ACMA must notify the applicant or bidder, in writing, of a decision under subsection (1) and the nature of the breach or failure before the later of: (a) six months after: (i) if notice was given to the applicant under subsection 45(1) or 46(1) – the day the notice was given; or (ii) in any other case – the end of the auction period; and (b) 6 months after the day on which the breach of failure mentioned in subsection (1) occurred. (3) A deposit retained under this section, or an amount obtained through enforcement of a deed of financial security, is forfeited to the Commonwealth unless the Federal Court orders the return of the amount under section 88.

86 Effect of retention on allocation to applicants for pre-determined price

If the ACMA makes a decision under subsection 85(1) in relation to an applicant notified under subsection 45(1) or 46(1): (a) despite subsections 44(4) and 44(5), the ACMA must not issue a spectrum licence to the applicant; and (b) section 80 applies to spectrum that, but for this subsection, would have been included in a spectrum licence allocated to the applicant.

87 Effect of retention on winning bidders

If the ACMA makes a decision under subsection 85(1) in relation to a winning bidder: (a) despite subsections 70(5), 70(8), 71(4), 71(5) and 71(6), and sections 74 and 76, the ACMA must not issue a spectrum licence to the winning bidder; and (b) section 80 applies to spectrum that, but for this subsection, would have been included in a spectrum licence allocated to the winning bidder.

88 Application to Federal Court for return of retained amount

(1) An applicant or bidder who has been notified by the ACMA under subsection 85(2) may, within one year of receiving the notice, apply to the Federal Court for return of all or part of a deposit or an amount secured by a deed of financial security. (2) On application, the Federal Court may: (a) if the Court is not satisfied that the applicant or bidder committed the breach or failure identified in the notice given by the ACMA – order the return of all the amount retained by the ACMA; or (b) if the Court is satisfied that the applicant or bidder committed the breach or failure, but considers that it would be disproportionate for the full amount to be retained – order the return of part of the amount retained by the ACMA. (3) This section does not enable the Federal Court to order that a spectrum licence be issued to an applicant or bidder. (4) This section does not remove any existing jurisdiction of a court.

89 Liability of ACMA, auction manager and the Commonwealth

Neither the ACMA, the auction manager nor the Commonwealth is liable to pay damages or cost arising from an act or omission of any person in relation to the allocation procedures set out in this instrument.

90 Other rights not affected

This instrument does not limit any other right of action or remedy which the ACMA or the Commonwealth has against a person.

91 Auction manager may delegate functions and powers

The auction manager may delegate any of the auction manager’s functions and powers under this instrument.