1.9
(2) The ACA may approve more than 1 form of a document.
1.6 Auction manager
The ACA must, by writing, appoint a person (the auction manager) to manage an auction.
1.7 Ways in which the ACA gives information
(1) The ACA may give any information or documents to a person under this determination:
(a) by letter; or
(b) by telephone; or
(c) by fax.
(2) The ACA may make information available to a person:
(a) if the person is using the auction computer system — by making the information available on the system; or
(b) by publishing the information on the internet.
1.8 Communicating with ACA
Once an auction has started, a form or notice required to be given to the ACA in relation to the auction must be given by fax to a number shown in the Applicant Information Package as the number for giving notices by fax.
Note Bidding must, except in emergencies, be done electronically: see section 4.8.
1.9 Method of payment of monies to ACA
(1) All payments to the ACA must be made in Australian currency.
(2) Monies due to the ACA for any of the purposes set out in subsection (3) must be paid using the real-time gross settlement system (RTGS) operated by the Reserve Bank of Australia.
(3) Monies due to the ACA for the following purposes must be paid by the date required by this determination and in accordance with this determination:
(a) entry fee;
(b) eligibility payment;
(c) any additional eligibility payment as required by section 4.25
(d) any further eligibility payment as required by subsection 2.5 (3);
(e) monies payable under a performance payment;
(f) 10% of the balance of the bid price;
(g) the remainder of the balance of the bid price;
(h) the balance of the pre-determined price.
(4) An applicant making a payment must notify the auction centre and the Receiver of Public Monies by fax of the proposed payment before making the transfer.
Note See paragraph 2.3 (1) (n) for notification of relevant fax numbers.
(5) For subsection (4), each notification must include the following details:
(a) the name and address of the applicant;
(b) if the applicant is an Australian registered company, the ACN or ARBN of the applicant;
(c) the ACA client number of the applicant (if available);
(d) the name, address, telephone and fax numbers of the contact person regarding the funds transfer;
(e) the amount of the payment being transferred;
(f) the purpose for which the payment is being made.
(6) A payment by RTGS must be paid into the ACA’s bank account, details of which are as follows:
(a) Bank — Reserve Bank of Australia;
(b) Branch — Canberra City;
(c) BSB number — 092-009;
(d) Account number — 92276-5;
(e) Account name — Australian Communications Authority Clearing Account.
(7) A payment by RTGS is not effective unless the funds have been paid into the ACA’s bank account by the date required by this determination.
(8) The applicant must pay all bank charges and Government imposed duties in respect of the transfer, and a payment will not be regarded as having been made unless the full amount net of any such charges is received by the ACA.
Example A payment by RTGS for an entry fee or an eligibility payment must have been credited to the ACA’s bank account by the time the application documents are lodged. The applicant must pay all bank charges and Government duties on the transfer.
Part 1A—Limits on Allocations of Spectrum
Division 1—Preliminary
1A.1 Purpose of Part
The purpose of this Part is:
(a) to impose limits on the aggregate parts of the spectrum that, as a result of the allocation of spectrum licences under this determination, may be used by:
(i) a person; or
(ii) a specified group of persons; and
(b) to determine procedures to ensure those limits are not exceeded.
Notes:
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The Minister has given a written direction to the ACA under subsection 60(10) of the Act about the exercise of the ACA’s power to determine procedures to be applied in allocating spectrum licences for imposing limits on the aggregate parts of the spectrum that may be used by a person or specified group of persons.
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The following terms used in this Part are defined in section 1A.30 at the end of this Part:
• associate • major city
• relevant agreement • specified group of persons.
- Other terms used in this Part are defined in section 1.4.
Division 2—The allocation limits
1A.2 Imposition of allocation limits
(1) This section imposes the limits on the aggregate parts of the spectrum that, as a result of the allocation of spectrum licences under this determination, may be used by particular classes of persons.
(2) (a) Telstra and any related body corporate may not use spectrum in the frequency bands 3425 MHz to 3492.5 MHz and 3542.5 MHz to 3575 MHz to operate radiocommunications devices anywhere within a major population auction lot area;
(b) Telstra and any related body corporate may not use more than an aggregate of 22 MHz of spectrum in the 3442.5 MHz to 3475 MHz band to operate radiocommunications devices within an auction lot area which is not a major population auction lot area;
(c) Telstra and any related body corporate may not use more than an aggregate of 22 MHz of spectrum in the 3542.5 MHz to 3575 MHz band to operate radiocommunications devices within an auction lot area which is not a major population auction lot area; and
(d) no other person or specified group of persons may use more than an aggregate of 67.5 MHz of the spectrum in the frequency bands 3425 MHz to 3492.5 MHz and 3542.5 MHz to 3575 MHz to operate radiocommunications devices within a major population auction lot area.
1A.2A Bidding not to exceed limits
(1) A person or specified group of persons must not bid in a way that would be in breach of the limits in section 1A.2(2).
(2) A person or specified group of persons who bids in breach of the limits will be excluded from taking any further part in the auction and therefore from obtaining a spectrum licence in the allocation process.
1A.2B Consequences of exclusion
(1) The entry fee of an applicant who is excluded from obtaining a spectrum licence because of bidding in contravention of the limits in subsection 1A.2(2) (an excluded applicant) is not refundable.
(2) The eligibility payment of an excluded applicant is refundable.
(3) However, before refunding the eligibility payment of an excluded applicant, the ACA must deduct any bid withdrawal penalties (see Part 4) from the amount to be refunded.
(4) In working out the bid withdrawal penalties deductable under subsection (3), a high bid of the excluded applicant that was current immediately before the applicant was excluded is taken to be withdrawn.
Note: Because it is not possible to work out any bid withdrawal penalties until the end of the auction, the eligibility payment cannot be refunded until then.
Division 3—Matters relevant to considering whether applicants are associated
1A.3 Matters relevant to considering whether applicants are associated
When considering, for this Part, whether 2 or more applicants are associated, the ACA must have regard to:
(a) statutory declarations made under section 1A.5, 1A.15 or 1A.22; and
(b) any advice given by the ACCC in response to the material sent to it under section 1A.4; and
(c) any other matter that the ACA considers relevant.
Division 4—Procedures before auction
1A.4 ACA to send applications to ACCC
The ACA must send a copy of each applicant’s application documents to the ACCC within 5 working days of receiving them.
1A.5 Applicants to provide statutory declarations
(1) No more than 10 working days after the closing date, the ACA must:
(a) give each applicant details about the identity of all other applicants; and
(b) ask each applicant to make a statutory declaration stating whether the applicant is an associate of another applicant and, if so, giving details of the other applicant and the association.
(2) The ACA must state a date, not less than 10 working days after the date of the request, by which the statutory declaration must be received by the ACA.
(3) Each applicant must give the ACA a statutory declaration in accordance with this section.
(4) A statutory declaration by an applicant that is a corporation must be made by a director of the corporation.
1A.6 Exclusion of applicants because of failure to make statutory declaration
An applicant who does not give the ACA a statutory declaration in accordance with section 1A.5 is excluded from taking any further part in the auction and therefore from obtaining a spectrum licence in the allocation process.
1A.7 Consequences of exclusion
(1) The entry fee of an applicant who is excluded from obtaining a spectrum licence because of failure to make a statutory declaration (an excluded applicant) is not refundable.
(2) The eligibility payment of an excluded applicant is refundable.
1A.8 Options available to associated applicants
(1) If the ACA considers that a group (an applicant group) of 2 or more applicants are associated with one another, the ACA must:
(a) return the application documents to each member of the applicant group; and
(b) tell each member the basis on which the ACA considers them to be associated; and
(c) tell the members of the group of the options available to them under subsection (2); and
(d) tell each member of the effect of section 1A.10.
(2) The following options are available to the members of the group:
(a) withdrawing applications in accordance with subsection (3); or
(b) choosing not to withdraw.
(3) For subsection (2), the following ways of withdrawing applications are permissible:
(a) withdrawal of applications by all members of the group (whether or not the group then takes advantage of section 1A.11 to make a new application); or
(b) withdrawal of applications by all but 1 member of the group.
(4) Within 10 days of the ACA returning their application documents, the members of the group must tell the ACA, in writing, which option they propose to take, by giving the ACA a completed approved form appropriate to the proposed option and, if an application is to be made under section 1A.11, a completed application form for the purposes of that section.
Note: By virtue of subsection 1A.11 (3), other documents (referred to in paragraphs 2.4 (2)(b) and (c)), the entry fee and eligibility payment must all accompany the completed application form.
1A.9 Consequences of withdrawal
(1) The entry fee of an applicant who withdraws is not refundable.
(2) The eligibility payment of an applicant who withdraws is refundable.
1A.10 Consequences of applicants choosing not to withdraw
(1) A decision of members of an applicant group choosing not to withdraw in accordance with paragraph 1A.8 (2) (b), has the following consequences:
(a) each member of the group (member) will be jointly and severally liable for all bids made using the common bidder identification number and encryption keys and transaction code keys allocated to members;
(b) spectrum licences will only be issued for lots on which the members are successful in accordance with an authority and direction, in the approved form, given jointly by the members to the ACA indicating how the spectrum won by them at auction is to be allocated between them, within the allocation limits;
(c) the applicant group will be subject to the same consequences as a single applicant under subsection 1A.14 (2).
(2) Members choosing not to withdraw must acknowledge the consequences mentioned in subsection (1) when completing the approved form.
1A.11 Making a new application
(1) If all applications by the members of an applicant group are withdrawn, a new applicant may apply to the ACA for registration.
(2) The new applicant must be a legal entity made up of only 1 or more members of the same applicant group who have withdrawn their individual applications under paragraph 1A.8 (3) (a) and who wish to take part in making the new application.
(3) Section 2.4 applies to a new application, except that the new application must be made by using the approved form, and not by using the application form referred to in that section.
(4) The new application must be accompanied by a statutory declaration by the new applicant that it is not associated with any person except a person making up the entity.
1A.12 New application—limit on acceptance
The ACA must not accept a new application unless it is satisfied that the new applicant is not associated with:
(a) any other applicant who has not withdrawn; or
(b) if there is, or may be, another new applicant—the other new applicant.
1A.13 Designation of applicants as associated applicants
(1) If an applicant group does not tell the ACA that it is exercising 1 of the options under subsection 1A.8 (2) within the period mentioned in subsection 1A.8 (4), the ACA must designate the members of the group who have not withdrawn as associated applicants.
(2) The ACA must tell the applicants, in writing, that they have been designated as associated applicants and that the decision is reviewable by the Administrative Appeals Tribunal.
Notes:
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For the contents of a notice telling the applicants that they have been designated as associated applicants, see the Code of Practice made under s 27B of the Administrative Appeals Tribunal Act 1975.
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For the right to have a decision designating applicants as associated applicants reviewed by the Administrative Appeals Tribunal, see section 1A.29.
1A.14 Consequences of designation as associated applicants
(1) If the ACA designates members of a group of applicants as associated applicants (a designated applicant group), the members of the group are to be taken, for this determination, to be a single applicant.
(2) The ACA must deal with members of a designated applicant group taken to be a single applicant for subsection (1) by:
(a) registering the designated applicant group as a separate bidding entity for the auction; and
(b) issuing a common bidder identification number (BIN), password, and set of encryption keys and transaction code keys for use by all members of the designated applicant group; and
(c) setting the eligibility of each member of the designated applicant group as the sum of the initial eligibility nominated by each member of the group at the time that the member applied for registration under this determination, but so as not to exceed the allocation limits under this determination; and
(d) setting the number of waivers for each member of the designated applicant group at the same number as other applicants who are not members of a designated applicant group; and
(e) accepting the first relevant bidding instruction file mentioned in section 4.9 that is received by the ACA as the only bid file of members of the designated applicant group; and
(f) treating any bid or automatic rebid, bid withdrawal, or exercise of waiver by a member of a designated applicant
group as if it had been made, withdrawn or exercised by each other member of that group.
(3) For subsection (2), a relevant bidding instruction file is a bid file that was created using the common bidder identification number and set of encryption keys and transaction code keys mentioned in paragraph (2) (b).
Notes:
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A BIN is allocated on registration, as are a set of transaction code keys (subsection 2.14 (2)).
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Acceptance of the first relevant bidding instruction file mentioned in section 4.16 that is received by the ACA as the only bid file of members of the designated applicant group may have the result that other members of the designated applicant group may fail to meet activity levels and so progressively lose eligibility.
Division 5—Procedures during auction
1A.15 Detection of associated applicants during auction
(1) If at any time during the auction the ACA considers that 2 or more applicants, that have not been designated as associated applicants, may be associates, the ACA must:
(a) suspend the auction from the end of the current round; and
(b) tell each of the applicants concerned, listing identification details about the other applicants that the ACA believes to be associated and stating the basis of its belief; and
(c) ask each of the applicants concerned to make a statutory declaration stating whether the applicant is an associate of any of the other listed applicants and, if so, giving details of the listed applicant and the association.
(2) The ACA must state a date, not more than 5 working days after the date of the request, by which the statutory declaration must be received by the ACA.
(3) An applicant asked to make a statutory declaration in accordance with this section must comply with the request.
(4) A statutory declaration by an applicant that is a corporation must be given by a director of the corporation.
1A.16 Exclusion of applicants because of failure to make statutory declaration
An applicant who does not give the ACA a statutory declaration in accordance with section 1A.15 is excluded from taking any further part in the auction and therefore from obtaining a spectrum licence in the allocation process.
1A.17 Consequences of exclusion
(1) The entry fee of an applicant who is excluded from obtaining a spectrum licence because of failure to make a statutory declaration (an excluded applicant) is not refundable.
(2) The eligibility payment and additional eligibility payment (if any) of an excluded applicant is refundable.
(3) However, before refunding the eligibility payment and additional eligibility payment (if any) of an excluded applicant, the ACA must deduct any bid withdrawal penalties (see Part 4) from the amount to be refunded.
(4) In working out the bid withdrawal penalties deductable under subsection (3), a high bid of the applicant that was current immediately before the applicant was excluded is taken to be withdrawn.
Note: Because it is not possible to work out any bid withdrawal penalties until the end of the auction, the eligibility payment and additional eligibility payment (if any) cannot be refunded until then.
1A.18 Designation of associated applicants during auction
(1) If, during the auction, the ACA considers that 2 or more applicants who have not been excluded are associated, the ACA must designate the applicants as associated applicants.
(2) The ACA must tell the applicants, in writing, that they have been designated as associated applicants and that the decision is reviewable by the Administrative Appeals Tribunal.
Notes:
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For the contents of a notice telling the applicants that they have been designated as associated applicants, see the Code of Practice made under s 27B of the Administrative Appeals Tribunal Act 1975.
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For the right to have a decision designating applicants as associated applicants reviewed by the Administrative Appeals Tribunal, see section 1A.29.
1A.19 Consequences of designation as associated applicants
(1) If the ACA designates members of a group of applicants as associated applicants (a designated applicant group), the members of the group are to be taken, for this determination, to be a single applicant.
(2) The ACA must deal with members of a designated applicant group taken to be a single applicant for subsection (1) by:
(a) revoking the bidder identification numbers, encryption code keys and transaction code keys previously issued to the members of the designated applicant group (members); and
(b) issuing a new common bidder identification number (BIN), password, encryption code keys and transaction code keys for use, from the time the auction resumes, to all members; and
(c) setting the eligibility of each member of the designated applicant group as the sum of the current eligibility of each of the members at the end of the round immediately before the suspension of the auction, but so as not to exceed the allocation limits under this determination; and
(d) setting the number of waivers for each member of the designated applicant group at the highest number held by any of the members at the end of the round immediately before the suspension; and
(e) treating any bid or automatic rebid, bid withdrawal, or exercise of waiver by a member of a designated applicant group as if it had been made, withdrawn or exercised by each other member of that group.
1A.20 Effect of designation of associated applicants on bidding
(1) When the ACA revokes bidder identification numbers of members of a designated applicant group, it will remove any high bid held against those bidder identification numbers.
(2) When the ACA removes a high bid:
(a) the ACA is taken to be the highest bidder for the lot, at the next highest bid (whether the next highest bid was made in that round or a previous round); and
(b) the ACA will be identified by the bidder identification number 9999; and
(c) the minimum bid for the lot in the next round is equal to that next highest bid.
(3) For subsection (2), if there is no next highest bid for a lot:
(a) the amount of the high bid to be recorded is taken to be zero; and
(b) the starting bid for the lot will be worked out under subsection 2.17(2)
Note: No bid withdrawal penalty will apply to an applicant if the ACA removes a high bid under subsection 1A.20 (1).
(4) Before the auction restarts, the ACA must recalculate the results of the auction at the end of the round in which the suspension of the auction took effect, taking into account the removal of any high bids under subsection (1) and publish these using the auction computer system and the internet.
1A.21 Telling other applicants of designation of associated applicants
(1) If the ACA designates any applicants as associated applicants under section 1A.18, the ACA must tell all other applicants before the auction restarts.
(2) The ACA must also tell all other applicants:
(a) that the ACA will reject any instructions about taking part in the auction (ie bidding, withdrawal of a bid or waiver) received from a member of a designated applicant group if those instructions are inconsistent with earlier instructions that the ACA has received from another member of that group;and
(b) the date and time of the resumption of the auction.
(3) For paragraph (2) (a), instructions are taken to be inconsistent with earlier instructions if it is not open to a single applicant, under this determination, to give the subsequent instructions.
Note: Members of a designated applicant group will have the same BIN.
Division 6—Procedures after auction
1A.22 Successful applicants to make statutory declarations
After the close of the auction, but before licences are issued, the ACA must give each successful applicant identification details of all other successful applicants and ask each successful applicant to make a statutory declaration stating whether the applicant is an associate of any other successful applicant and, if so, giving details of the applicant and the association.
1A.23 Exclusion of applicants because of failure to make statutory declaration
A successful applicant who does not give the ACA a statutory declaration in accordance with section 1A.22 is excluded from obtaining a spectrum licence in the allocation process.
1A.24 Consequences of exclusion
(1) If a successful applicant is excluded from obtaining a spectrum licence, all lots for which the applicant was successful are taken to be unsold lots.
(2) The entry fee of a successful applicant who is excluded from obtaining a spectrum licence because of failure to make a statutory declaration (an excluded applicant) is not refundable.
(3) The eligibility payment and additional eligibility payment (if any) of an excluded applicant is refundable.
(4) However, before refunding the eligibility payment and additional eligibility payment (if any) of an excluded applicant, the ACA must deduct any bid withdrawal penalties (see Part 4) from the amount to be refunded.
(5) In working out the bid withdrawal penalties deductable under subsection (4), all successful bids of the applicant are taken to be withdrawn.
1A.25 Designation of associated applicants after auction
(1) If the ACA considers that 2 or more successful applicants who have not been excluded are associated, the ACA must designate the applicants as associated applicants.
(2) The ACA must tell the applicants, in writing, that they have been designated as associated applicants and that the decision is reviewable by the Administrative Appeals Tribunal.
Notes:
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For the contents of a notice telling the applicants that they have been designated as associated applicants, see the Code of Practice made under s 27B of the Administrative Appeals Tribunal Act 1975.
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For the right to have a decision designating applicants as associated applicants reviewed by the Administrative Appeals Tribunal, see section 1A.29.
1A.26 Consequences of designation as associated applicants
(1) If the ACA designates 2 or more successful applicants as associated applicants, the ACA must combine the lots for which the applicants were successful.
(2) If the issue of a spectrum licence or licences for the combined lots would result in the allocation limits under this determination being exceeded, spectrum licences will be issued only:
(a) up to the allocation limits; and
(b) in accordance with an authority and direction, in the approved form, given jointly by the associated applicants to the ACA indicating how the spectrum won by them at auction is to be allocated between them, within those limits.
1A.27 Unsold lots
A lot left unsold because of section 1A.24 or 1A.26 may be allocated in the manner determined by the ACA as if the lot were an unsold lot for section 6.1.
1A.28 Moneys payable by a successful applicant
(1) Imposition of a limitation on allocation to a successful applicant under subsection 1A.26 (2) does not affect the applicant’s obligation to pay, in the instalments mentioned in section 5.3, the balance of the bid price for all lots on which the applicant was the successful bidder.
(2) Each applicant with which the successful applicant is designated as being associated is liable to pay the balance of the bid price under section 5.3.
Note: For balance of the bid price, see section 1.4 and section 5.3.
(3) If the price obtained for a lot when it is allocated under section 1A.27 is less than the highest bid by the successful applicant at the auction, the applicant is liable to pay to the ACA:
(a) the difference between the price obtained and the highest bid; and
(b) the costs (if any) reasonably incurred by the ACA in allocating the lot.
(4) The ACA may deduct from the money paid by the successful applicant to the ACA (including money payable by the successful applicant under subsection (1)) the amount (if any) for which the applicant is liable under subsection (3).
(5) The balance (if any) of the money remaining after the deduction will be refunded to the successful applicant.
(6) If:
(a) a successful applicant does not pay the money payable under subsection (1); or
(b) the amount paid is not enough to satisfy the liability under subsection (3);
the amount due under subsection (3) is a debt due to the ACA and recoverable from the successful applicant in a court of competent jurisdiction.
Division 7—General
1A.29 Review
An applicant who has been designated as an associated applicant may apply to the Administrative Appeals Tribunal for review of the decision within 10 working days of being told of the decision.
1A.30 Definitions of terms used in this Part
(1) In this Part:
allocation limits means the limits on aggregate parts of spectrum for which licences may be allocated to particular applicants under this determination;
applicant means a person who has applied for registration as an applicant under section 2.14 of this determination;
approved form means a form approved by the ACA;
associate, in relation to a person, means:
(a) for a body corporate:
(i) a director or secretary of the body; or
(ii) a related body corporate; or
(iii) a director or secretary of a related body corporate; or
(iv) a business partner of the body; or
(v) an individual who controls at least 15% of the voting power or holds at least 15% of the issued shares in the body; or
(b) for an individual:
(i) the individual’s spouse; or
(ii) another person who, although not legally married to the individual, lives with the individual on a genuine domestic basis as the spouse of the person; or
(iii) a business partner of the individual; or
(iv) a body corporate in which the individual controls at least 15% of the voting power or holds at least 15% of the issued shares; or
(v) a body corporate of which the individual is a director or secretary; or
(vi) a body corporate that is related to a body corporate of which the individual is a director or secretary; or
(c) for any person - any other person (other than the ACA) who has a relevant agreement with the person that:
(i) entitles 1 of the parties to the agreement to use spectrum licensed to another person under a spectrum licence that relates to a part of the spectrum referred to in a re-allocation declaration; or
(ii) provides for the acquisition of a spectrum licence that relates to a part of the spectrum referred to in a re-allocation declaration;
corporation has the same meaning as in the Corporations Law;
designated applicant group means a group of applicants designated as associated applicants for a provision of this Part;
director, in relation to a corporation, has the same meaning as in the Corporations Law;
major city means a designated area described in the reallocation declaration to the extent that the area is within the territorial limits of Australia;
re-allocation declaration means the Radiocommunications {Spectrum Re-Allocation) Declaration 2000 made under section 153B of the Act on 11 April 2000;
related body corporate has the meaning given by the Corporations Law;
relevant agreement means an agreement, arrangement or understanding:
(a) whether formal or informal or partly formal and partly informal; and
(b) whether written or oral or partly written and partly oral; and
(c) whether or not having legal or equitable force and whether or not based on legal or equitable rights;
other than an agreement between carriers provided for by or under the Telecommunications Act 1997, Part XIC of the Trade Practices Act 1974 or the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997;
specified group of persons means a person and all the associates of that person.
Note: ACCC is defined in the Act.
(2) For this Part, 2 or more specified groups of persons having 1 member in common are taken to be 1 specified group of persons.
Part 2 Preparing for the auction
Division 1 Application and registration
2.1 Entry fee and eligibility payment
Before the ACA publishes a notice inviting applications for an auction it must set:
(a) the amount of the entry fee; and
(b) the amount of the eligibility payment required for each unit of eligibility nominated by an applicant; and
(c) the financial security amount for the auction.
2.2 Publication of notice by ACA
(1) Before holding an auction, the ACA must publish a notice in a newspaper circulating nationally in Australia:
(a) describing the parts of the spectrum to be auctioned; and
(b) giving a brief description of the way the auction will be conducted; and
(c) inviting people to apply to the ACA to take part in the auction; and
(d) stating the closing date and time for applications; and
(e) stating that licences will be auctioned in accordance with this determination; and
(f) stating that further information (the Applicant Information Package) can be obtained from the ACA at the address given in the notice.
(2) If a matter mentioned in the notice changes, the ACA must publish another notice giving details of the change in a newspaper circulating nationally in Australia.
(3) The ACA may publish other information about auctions and may publish that information, and the notices mentioned in subsections (1) and (2), in other ways.