38

38  Requirements for new application

 (1) If the members of a group of affiliated applicants notified by the ACMA under subsection 37(1) decide that a new applicant (new applicant) is 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 8 working days of the ACMA notifying the affiliated applicants under subsection 37(1):

 (a) give the ACMA a completed application form; and

 (b) pay the application fee.

 (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 in applications as the associates of the other applicants.

 (4) The updated information does not need to include those applicants who have already withdrawn.

 (5) If:

 (a) the new applicant is a set-aside applicant; and

 (b) the completed application form given under subsection (2) states that the set-aside applicant elects to take up a set-aside lot of both the 900 upper major population product and the 900 upper regional product;

 (c) subsection 62(1), if it did not already apply, applies in relation to the auction; and

 (d) the new applicant is a set-aside participant.

 (6) An application is not valid unless the new applicant, no later than 3 working days after the ACMA gives the new applicant the updated information (or, if the ACMA agrees to a later time, the agreed time):

 (a) gives the ACMA a deed of acknowledgement executed by the new applicant; and

 (b) gives the ACMA a deed of confidentiality executed by the new applicant; and

 (c) makes and gives the ACMA a statutory declaration that the new applicant is not affiliated with any other applicant mentioned in the updated information.

 (7) The new applicant must, no later than the eligibility deadline or extended eligibility deadline (if there is one), whichever is the case (or if the ACMA agrees to a later time, the agreed time):

 (a) give the ACMA:

 (i) a completed eligibility nomination form, which includes the matters set out in paragraph 31(7)(a); or

 (ii) a completed updated eligibility nomination form, which includes the matters set out in subsection 46(2);

  as appropriate; and

Note: If the eligibility payment or deed of financial security, or both, is not for the amount calculated in accordance with section 42, that may have consequences for the new applicant in the auction.

 (8) If a deed of financial security (for subparagraph (7)(b)(ii) or (iii)) is given to the ACMA by email before the time specified in subsection (7), the original deed must be received by the ACMA no later than 3 working days after the eligibility deadline (or, if the ACMA agrees to a later time, the agreed time).

 (9) Subject to Division 5, if the new applicant fails to comply with subsection (7) or subsection (8):

 (a) for a set-aside participant – the set-aside participant is not entitled to bid during the primary stage and the secondary stage; or

 (b) in any other case – the new applicant is taken to have withdrawn its application.

 (10) If, at any time before the new applicant is registered as a bidder, the ACMA is satisfied that the new applicant is affiliated with one or more other applicants who have not withdrawn their applications (including another applicant who has applied under this section), the new applicant and each of the other applicants is taken to have withdrawn its application.

 (11) The ACMA must tell an applicant in writing:

 (a) for a set-aside participant – that under paragraph (9)(a) it is not entitled to bid during the primary stage and the secondary stage; or

 (b) for a new applicant – that it is taken to have withdrawn its application under paragraph (9)(b) or subsection (10) or its application is not valid under subsection (6); or

 (c) for any applicant – that it is taken to have withdrawn its application under subsection (10).

Note: If subsection (10) applies to a set-aside participant, see section 40 of this instrument and paragraph 6(2)(c) of the spectrum licence limits direction.