Radiocommunications (Spectrum Licence Allocation – Multi-band Auction) Determination 2017

Part 1—Preliminary

1 Name

This is the Radiocommunications (Spectrum Licence Allocation – Multi-band Auction) Determination 2017.

2 Commencement

This instrument commences at the start of the day after it is registered.

Note: The Federal Register of Legislation may be accessed at www.legislation.gov.au.

3 Authority

This instrument is made under section 60 and section 294 of the Act.

4 Interpretation

(1) In this instrument:

1800 MHz allocation limits: see section 10.

1800 MHz allocation limits direction means the Radiocommunications (Spectrum Licence Limits – Regional 1800 MHz Band) Direction 2015.

1800 MHz band: see clause 2 of Schedule 2.

1800 MHz lot: see clause 3 of Schedule 2.

1800 MHz marketing plan means the Radiocommunications Spectrum Marketing Plan (1800 MHz unallocated lots band) 2017.

1800 MHz re-allocation declaration means the Radiocommunications (Spectrum Re-allocation – Regional 1800 MHz Band) Declaration 2015.

2 GHz and 3.4 GHz designation notice means the Radiocommunications (Spectrum Designation – 2 GHz and 3.4 GHz Bands) Notice 2017.

2 GHz lot: see clause 5 of Schedule 2.

2 GHz marketing plan means the Radiocommunications Spectrum Marketing Plan (2 GHz unallocated lots band) 2017.

2.3 GHz designation notice means the Radiocommunications (Spectrum Designation) Notice No. 1 of 2000 (14/01/2000).

Note: The Federal Register of Legislation number for the 2.3 GHz designation notice is F2004B00494.

2.3 GHz lot: see clause 7 of Schedule 2.

2.3 GHz marketing plan means the Radiocommunications Spectrum Marketing Plan (2.3 GHz unallocated lots band) 2017.

3.4 GHz lot: see clause 9 of Schedule 2.

3.4 GHz marketing plan means the Radiocommunications Spectrum Marketing Plan (3.4 GHz unallocated lots band) 2017.

ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

ACMA staff has the meaning given by section 3 of the Australian Communications and Media Authority Act 2005.

ACN has the meaning given by section 9 of the Corporations Act 2001.

Act means the Radiocommunications Act 1992.

affiliated: see subsections 12(1) and 13(1).

allocation process means the procedures to be applied in allocating spectrum licences, as determined in this instrument, other than the procedures set out in Schedule 4.

applicant means a person who has applied for registration as a bidder.

applicant information package means a package containing the information, forms and other documents set out in subsection 28(1).

application deadline: see paragraph 27(1)(f).

application fee means the amount set under section 24.

application form means the form approved by the ACMA under paragraph 28(1)(l).

ARBN has the meaning given by section 9 of the Corporations Act 2001.

associate: see subsection 11(1).

auction means an auction of lots held in accordance with this instrument.

auction manager means the person appointed under section 23.

auction period means the period commencing on the application deadline and ending at the close of the auction under clause 13 of Schedule 1.

auction system means the system the ACMA makes available to bidders to make bids in the auction.

balance of the pre-determined price: see subsection 39(2).

balance of the winning price: see subsection 69(2).

bid means a bid made on a single lot, and includes a bid taken to be made on a single lot.

bid increment percentage: see section 34.

bidder means a person registered by the ACMA as a bidder under section 51.

carrier has the same meaning as in the Telecommunications Act 1997.

confidential information: see section 16.

continue bid, in relation to a lot, means a bid made on the lot in a round of the auction that is equal to or greater than the specified price of the lot for that round.

deed of acknowledgement means a deed in the form approved under paragraph 28(1)(q) that has been completed and executed by an applicant in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument.

Note: Strict compliance with the form is required.

deed of confidentiality means a deed in the form approved under paragraph 28(1)(r) that has been completed and executed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument.

Note: Strict compliance with the form is required.

deed of financial security means a deed in the form approved under paragraph 28(1)(o) that has been completed and executed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument.

deposit means a payment made by an applicant under section 29 or in accordance with section 33.

existing 1800 MHz licensee means the licensee of a spectrum licence that authorises the operation of radiocommunications devices in a part or parts of the spectrum in the 1800 MHz band.

exit bid, in relation to a lot, means a bid made on the lot in a round of the auction that is:

(a) less than the specified price of the lot for that round; and
(b) either:
(i) in any round other than the first round for bids on the lot – equal to or greater than the specified price of the lot for the previous round of the auction; or
(ii) in the first round for bids on the lot – equal to or greater than the starting price for the lot.

final high bid: see subclause 11(5) of Schedule 1.

Note: Subclause 12(3) of Schedule 1 affects the meaning of final high bid.

final round for bids on a lot: see subclause 11(1) of Schedule 1.

final round for bids on the first product lots: see subclause 11(2) of Schedule 1.

final round for bids on the second product lots: see subclause 11(3) of Schedule 1.

final round of the auction: see subclause 11(4) of Schedule 1.

first product lots: see subsection (3).

lot: see subsection (2).

lot size: see paragraph 3(2)(d) of Schedule 2.

Note: Lot size is only relevant to 1800 MHz lots. These lots comprise two parts of the spectrum. For these lots, each part of the spectrum has the same lot size.

pre-determined price: see subsection 39(1).

preference nomination form means the form approved by the ACMA under subsection 28(1)(m).

preferred lots: see subsection 31(1).

Note 1: An applicant’s preferred lots may be affected by sections 31 to 33.

Note 2: A bidder may not be able to make a bid on one of its preferred lots in the circumstances set out in clause 4 of Schedule 1.

pseudorandom means using computer-generated numbers that satisfy a statistical test for randomness, but are not generated by a truly random physical process.

public mobile telecommunications service has the same meaning as in the Telecommunications Act 1997.

recess day: see subclause 3(1) of Schedule 1.

register means the register of bidders maintained by the ACMA under section 50.

related body corporate has the same meaning as in the Corporations Act 2001.

related person, in relation to an applicant or a bidder that is a body corporate, means any of the following:

(a) a director or secretary of the applicant or bidder;
(b) an employee of the applicant or bidder;
(c) an employee of a related body corporate that provides services to the applicant or bidder.

roaming services agreement means an agreement between carriers for the principal purpose of enabling end-users of public mobile telecommunications services supplied by another carrier, in geographic locations where the first-mentioned carrier’s public mobile telecommunications services are not available.

second product lot: see subsection (4).

specified group of persons means:

(a) in relation to an applicant or bidder – the applicant or bidder and all of the applicant’s or bidder’s associates;
(b) in relation to an existing 1800 MHz licensee – the licensee and all of the licensee’s associates.

Note: The definition of specified group of persons is affected by subsection 12(2) and subsection 13(2).

specified price: see subclauses 5(2) to (8) of Schedule 1.

stage 1 means the rounds of the auction:

(a) commencing with the first round of the auction; and
(b) ending with the final round for bids on the first product lots.

Note: If no bidder has nominated a first product lot as one of its preferred lots, no bids may be made in the first round of the auction, and that round constitutes stage 1.

stage 2 means the rounds of the auction:

(a) commencing with the first round after stage 1 has ended; and
(b) ending with the final round for bids on the second product lots.

Note: If no bidder has nominated a second product lot as one of its preferred lots, no bids may be made in the first round after stage 1 has ended, and that round constitutes stage 2.

stage 3 means the rounds of the auction:

(a) commencing with the first round after stage 2 has ended; and
(b) ending with the final round of the auction.

Note: If no bidder has nominated a third product lot as one of its preferred lots, no bids may be made in the first round after stage 2 has ended, and that round constitutes stage 3.

starting price, for a lot, means the amount set by the ACMA for the lot under section 26.

third product lot: see subsection (5).

winning bid price: see section 68.

winning bidder: see subclause 11(6) of Schedule 1.

Note: Subclause 12(2) of Schedule 1 may affect who is a winning bidder for a lot.

winning price: see subsection 69(1).

working day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory, New South Wales or Victoria.

Note: A number of other expressions used in this instrument are defined in the Act, including the following:

(a) ACCC;
(b) ACMA;
(c) spectrum;
(d) spectrum licence.
In this instrument, register has a different meaning to that given to Register by section 5 of the Act.

(2) In this instrument, each of the following is a lot: (a) each 1800 MHz lot; (b) each 2 GHz lot; (c) each 2.3 GHz lot; (d) each 3.4 GHz lot. (3) In this instrument, each of the following lots is a first product lot: (a) Lot 1 (DUBB01); (b) Lot 2 (MACK01); (c) Lot 3 (MARY01); (d) Lot 4 (REGW01); (e) Lot 5 (TASM01); (f) Lot 6 (CBRB01); (g) Lot 7 (DARW01); (h) Lot 8 (HOBA01). (4) In this instrument, each of the following is a second product lot: (a) Lot 9 (ADEL01); (b) Lot 10 (BRIA01); (c) Lot 11 (CBRA01); (d) Lot 12 (DARW02); (e) Lot 13 (HOBA02); (f) Lot 14 (PERT01). (5) In this instrument, each lot, other than a first product lot or a second product lot, is a third product lot.

Note: The third product lots are the 2.3 GHz lots and the 3.4 GHz lots.

(6) In this instrument, the range of numbers that identifies a frequency range includes the higher, but not the lower, number. (7) In this instrument, a reference to time is a reference to the legal time in the Australian Capital Territory.

5 References to other legislative instruments, and to other instruments or writing

(1) In this instrument, unless the contrary intention appears, a reference to another legislative instrument is a reference to that other legislative instrument as in force from time to time.

Note 1: For references to Commonwealth Acts, see section 10 of the Acts Interpretation Act 1901; and see also subsection 13(1) of the Legislation Act 2003 for the application of the Acts Interpretation Act 1901 to legislative instruments.

Note 2: All Commonwealth Acts and legislative instruments are registered on the Federal Register of Legislation.

(2) In this instrument, unless the contrary intention appears, a reference to an instrument or other writing (other than a legislative instrument) is a reference to that instrument or writing as existing from time to time.

Note: See section 314A of the Act.

6 Giving documents to ACMA

(1) A document may be given to the ACMA under this instrument, other than Schedule 4, by: (a) delivering the document to the physical address specified in the applicant information package; or (b) emailing the document to the email address specified in the applicant information package in accordance with subsection (2); or (c) faxing the document to the fax number specified in the applicant information package in accordance with subsections (3) and (4).

Note 1: Subsection 33(8) has additional requirements for a deed of financial security lodged by email or fax.

Note 2: Schedule 4 contains its own rules for giving a document to the ACMA.

(2) If a document is emailed: (a) the document must be included as an attachment; and (b) the document must be: (i) if the document is a statutory declaration, a statement under subsection 41(3) or section 65, or a deed—in PDF format or another format approved by the auction manager; or (ii) if the document is not a document mentioned in subparagraph (i)—in Word, RTF or PDF format or another format approved by the auction manager. (3) If a document is faxed, the document must be accompanied by a cover sheet that states: (a) the sender’s name, postal address, telephone number and fax number; and (b) the number of pages transmitted, including the cover sheet. (4) If the faxed document is a completed application form, a completed preference nomination form, a statutory declaration, a statement under subsection 41(3) or section 65, or a deed, the cover sheet must also state the type of document.

7 Payment of amounts

(1) An amount paid to the ACMA on behalf of the Commonwealth under this instrument must be paid in Australian currency. (2) An amount must be paid by bank cheque or by electronic transfer. (3) An electronic transfer must be made into the bank account with the following details: (a) Bank—ANZ Bank; (b) Branch—Belconnen; (c) BSB number—012-951; (d) Account number—8379 24272; (e) Account name—ACMA Official Administered Receipts. (4) An amount is taken to have been paid by a deadline specified in this instrument if: (a) the ACMA receives a bank cheque for the full amount on or before the deadline; or (b) both: (i) the ACMA receives evidence that an electronic transfer of the full amount was made on or before the deadline (such as a transfer receipt); and (ii) the amount is received in the ACMA’s bank account specified in subsection (3) no later than 3 working days after the deadline; or (c) the ACMA receives other evidence which satisfies the ACMA that the person making the payment has taken all reasonable steps to pay the amount on or before the deadline. (5) An amount payable under this instrument is not paid in full if bank charges or government duties imposed on a payment reduce the net payment to less than the amount payable.

Note: The effect of this subsection is that an applicant or bidder must add the value of any bank charge or government duty to the amount of a payment.

(6) If an amount payable under this instrument is not an amount of whole dollars, the amount is rounded up to the next dollar.

8 Statutory declaration for body corporate

A statutory declaration required to be made in this instrument by a body corporate must be made by a director or secretary of the body corporate.

1 Name

This is the Radiocommunications (Spectrum Licence Allocation – Multi-band Auction) Determination 2017.

2 Commencement

This instrument commences at the start of the day after it is registered.

Note: The Federal Register of Legislation may be accessed at www.legislation.gov.au.

3 Authority

This instrument is made under section 60 and section 294 of the Act.

4 Interpretation

(1) In this instrument:

1800 MHz allocation limits: see section 10.

1800 MHz allocation limits direction means the Radiocommunications (Spectrum Licence Limits – Regional 1800 MHz Band) Direction 2015.

1800 MHz band: see clause 2 of Schedule 2.

1800 MHz lot: see clause 3 of Schedule 2.

1800 MHz marketing plan means the Radiocommunications Spectrum Marketing Plan (1800 MHz unallocated lots band) 2017.

1800 MHz re-allocation declaration means the Radiocommunications (Spectrum Re-allocation – Regional 1800 MHz Band) Declaration 2015.

2 GHz and 3.4 GHz designation notice means the Radiocommunications (Spectrum Designation – 2 GHz and 3.4 GHz Bands) Notice 2017.

2 GHz lot: see clause 5 of Schedule 2.

2 GHz marketing plan means the Radiocommunications Spectrum Marketing Plan (2 GHz unallocated lots band) 2017.

2.3 GHz designation notice means the Radiocommunications (Spectrum Designation) Notice No. 1 of 2000 (14/01/2000).

Note: The Federal Register of Legislation number for the 2.3 GHz designation notice is F2004B00494.

2.3 GHz lot: see clause 7 of Schedule 2.

2.3 GHz marketing plan means the Radiocommunications Spectrum Marketing Plan (2.3 GHz unallocated lots band) 2017.

3.4 GHz lot: see clause 9 of Schedule 2.

3.4 GHz marketing plan means the Radiocommunications Spectrum Marketing Plan (3.4 GHz unallocated lots band) 2017.

ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

ACMA staff has the meaning given by section 3 of the Australian Communications and Media Authority Act 2005.

ACN has the meaning given by section 9 of the Corporations Act 2001.

Act means the Radiocommunications Act 1992.

affiliated: see subsections 12(1) and 13(1).

allocation process means the procedures to be applied in allocating spectrum licences, as determined in this instrument, other than the procedures set out in Schedule 4.

applicant means a person who has applied for registration as a bidder.

applicant information package means a package containing the information, forms and other documents set out in subsection 28(1).

application deadline: see paragraph 27(1)(f).

application fee means the amount set under section 24.

application form means the form approved by the ACMA under paragraph 28(1)(l).

ARBN has the meaning given by section 9 of the Corporations Act 2001.

associate: see subsection 11(1).

auction means an auction of lots held in accordance with this instrument.

auction manager means the person appointed under section 23.

auction period means the period commencing on the application deadline and ending at the close of the auction under clause 13 of Schedule 1.

auction system means the system the ACMA makes available to bidders to make bids in the auction.

balance of the pre-determined price: see subsection 39(2).

balance of the winning price: see subsection 69(2).

bid means a bid made on a single lot, and includes a bid taken to be made on a single lot.

bid increment percentage: see section 34.

bidder means a person registered by the ACMA as a bidder under section 51.

carrier has the same meaning as in the Telecommunications Act 1997.

confidential information: see section 16.

continue bid, in relation to a lot, means a bid made on the lot in a round of the auction that is equal to or greater than the specified price of the lot for that round.

deed of acknowledgement means a deed in the form approved under paragraph 28(1)(q) that has been completed and executed by an applicant in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument.

Note: Strict compliance with the form is required.

deed of confidentiality means a deed in the form approved under paragraph 28(1)(r) that has been completed and executed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument.

Note: Strict compliance with the form is required.

deed of financial security means a deed in the form approved under paragraph 28(1)(o) that has been completed and executed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument.

deposit means a payment made by an applicant under section 29 or in accordance with section 33.

existing 1800 MHz licensee means the licensee of a spectrum licence that authorises the operation of radiocommunications devices in a part or parts of the spectrum in the 1800 MHz band.

exit bid, in relation to a lot, means a bid made on the lot in a round of the auction that is:

(a) less than the specified price of the lot for that round; and
(b) either:
(i) in any round other than the first round for bids on the lot – equal to or greater than the specified price of the lot for the previous round of the auction; or
(ii) in the first round for bids on the lot – equal to or greater than the starting price for the lot.

final high bid: see subclause 11(5) of Schedule 1.

Note: Subclause 12(3) of Schedule 1 affects the meaning of final high bid.

final round for bids on a lot: see subclause 11(1) of Schedule 1.

final round for bids on the first product lots: see subclause 11(2) of Schedule 1.

final round for bids on the second product lots: see subclause 11(3) of Schedule 1.

final round of the auction: see subclause 11(4) of Schedule 1.

first product lots: see subsection (3).

lot: see subsection (2).

lot size: see paragraph 3(2)(d) of Schedule 2.

Note: Lot size is only relevant to 1800 MHz lots. These lots comprise two parts of the spectrum. For these lots, each part of the spectrum has the same lot size.

pre-determined price: see subsection 39(1).

preference nomination form means the form approved by the ACMA under subsection 28(1)(m).

preferred lots: see subsection 31(1).

Note 1: An applicant’s preferred lots may be affected by sections 31 to 33.

Note 2: A bidder may not be able to make a bid on one of its preferred lots in the circumstances set out in clause 4 of Schedule 1.

pseudorandom means using computer-generated numbers that satisfy a statistical test for randomness, but are not generated by a truly random physical process.

public mobile telecommunications service has the same meaning as in the Telecommunications Act 1997.

recess day: see subclause 3(1) of Schedule 1.

register means the register of bidders maintained by the ACMA under section 50.

related body corporate has the same meaning as in the Corporations Act 2001.

related person, in relation to an applicant or a bidder that is a body corporate, means any of the following:

(a) a director or secretary of the applicant or bidder;
(b) an employee of the applicant or bidder;
(c) an employee of a related body corporate that provides services to the applicant or bidder.

roaming services agreement means an agreement between carriers for the principal purpose of enabling end-users of public mobile telecommunications services supplied by another carrier, in geographic locations where the first-mentioned carrier’s public mobile telecommunications services are not available.

second product lot: see subsection (4).

specified group of persons means:

(a) in relation to an applicant or bidder – the applicant or bidder and all of the applicant’s or bidder’s associates;
(b) in relation to an existing 1800 MHz licensee – the licensee and all of the licensee’s associates.

Note: The definition of specified group of persons is affected by subsection 12(2) and subsection 13(2).

specified price: see subclauses 5(2) to (8) of Schedule 1.

stage 1 means the rounds of the auction:

(a) commencing with the first round of the auction; and
(b) ending with the final round for bids on the first product lots.

Note: If no bidder has nominated a first product lot as one of its preferred lots, no bids may be made in the first round of the auction, and that round constitutes stage 1.

stage 2 means the rounds of the auction:

(a) commencing with the first round after stage 1 has ended; and
(b) ending with the final round for bids on the second product lots.

Note: If no bidder has nominated a second product lot as one of its preferred lots, no bids may be made in the first round after stage 1 has ended, and that round constitutes stage 2.

stage 3 means the rounds of the auction:

(a) commencing with the first round after stage 2 has ended; and
(b) ending with the final round of the auction.

Note: If no bidder has nominated a third product lot as one of its preferred lots, no bids may be made in the first round after stage 2 has ended, and that round constitutes stage 3.

starting price, for a lot, means the amount set by the ACMA for the lot under section 26.

third product lot: see subsection (5).

winning bid price: see section 68.

winning bidder: see subclause 11(6) of Schedule 1.

Note: Subclause 12(2) of Schedule 1 may affect who is a winning bidder for a lot.

winning price: see subsection 69(1).

working day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory, New South Wales or Victoria.

Note: A number of other expressions used in this instrument are defined in the Act, including the following:

(a) ACCC;
(b) ACMA;
(c) spectrum;
(d) spectrum licence.
In this instrument, register has a different meaning to that given to Register by section 5 of the Act.

(2) In this instrument, each of the following is a lot: (a) each 1800 MHz lot; (b) each 2 GHz lot; (c) each 2.3 GHz lot; (d) each 3.4 GHz lot. (3) In this instrument, each of the following lots is a first product lot: (a) Lot 1 (DUBB01); (b) Lot 2 (MACK01); (c) Lot 3 (MARY01); (d) Lot 4 (REGW01); (e) Lot 5 (TASM01); (f) Lot 6 (CBRB01); (g) Lot 7 (DARW01); (h) Lot 8 (HOBA01). (4) In this instrument, each of the following is a second product lot: (a) Lot 9 (ADEL01); (b) Lot 10 (BRIA01); (c) Lot 11 (CBRA01); (d) Lot 12 (DARW02); (e) Lot 13 (HOBA02); (f) Lot 14 (PERT01). (5) In this instrument, each lot, other than a first product lot or a second product lot, is a third product lot.

Note: The third product lots are the 2.3 GHz lots and the 3.4 GHz lots.

(6) In this instrument, the range of numbers that identifies a frequency range includes the higher, but not the lower, number. (7) In this instrument, a reference to time is a reference to the legal time in the Australian Capital Territory.

5 References to other legislative instruments, and to other instruments or writing

(1) In this instrument, unless the contrary intention appears, a reference to another legislative instrument is a reference to that other legislative instrument as in force from time to time.

Note 1: For references to Commonwealth Acts, see section 10 of the Acts Interpretation Act 1901; and see also subsection 13(1) of the Legislation Act 2003 for the application of the Acts Interpretation Act 1901 to legislative instruments.

Note 2: All Commonwealth Acts and legislative instruments are registered on the Federal Register of Legislation.

(2) In this instrument, unless the contrary intention appears, a reference to an instrument or other writing (other than a legislative instrument) is a reference to that instrument or writing as existing from time to time.

Note: See section 314A of the Act.

6 Giving documents to ACMA

(1) A document may be given to the ACMA under this instrument, other than Schedule 4, by: (a) delivering the document to the physical address specified in the applicant information package; or (b) emailing the document to the email address specified in the applicant information package in accordance with subsection (2); or (c) faxing the document to the fax number specified in the applicant information package in accordance with subsections (3) and (4).

Note 1: Subsection 33(8) has additional requirements for a deed of financial security lodged by email or fax.

Note 2: Schedule 4 contains its own rules for giving a document to the ACMA.

(2) If a document is emailed: (a) the document must be included as an attachment; and (b) the document must be: (i) if the document is a statutory declaration, a statement under subsection 41(3) or section 65, or a deed—in PDF format or another format approved by the auction manager; or (ii) if the document is not a document mentioned in subparagraph (i)—in Word, RTF or PDF format or another format approved by the auction manager. (3) If a document is faxed, the document must be accompanied by a cover sheet that states: (a) the sender’s name, postal address, telephone number and fax number; and (b) the number of pages transmitted, including the cover sheet. (4) If the faxed document is a completed application form, a completed preference nomination form, a statutory declaration, a statement under subsection 41(3) or section 65, or a deed, the cover sheet must also state the type of document.

7 Payment of amounts

(1) An amount paid to the ACMA on behalf of the Commonwealth under this instrument must be paid in Australian currency. (2) An amount must be paid by bank cheque or by electronic transfer. (3) An electronic transfer must be made into the bank account with the following details: (a) Bank—ANZ Bank; (b) Branch—Belconnen; (c) BSB number—012-951; (d) Account number—8379 24272; (e) Account name—ACMA Official Administered Receipts. (4) An amount is taken to have been paid by a deadline specified in this instrument if: (a) the ACMA receives a bank cheque for the full amount on or before the deadline; or (b) both: (i) the ACMA receives evidence that an electronic transfer of the full amount was made on or before the deadline (such as a transfer receipt); and (ii) the amount is received in the ACMA’s bank account specified in subsection (3) no later than 3 working days after the deadline; or (c) the ACMA receives other evidence which satisfies the ACMA that the person making the payment has taken all reasonable steps to pay the amount on or before the deadline. (5) An amount payable under this instrument is not paid in full if bank charges or government duties imposed on a payment reduce the net payment to less than the amount payable.

Note: The effect of this subsection is that an applicant or bidder must add the value of any bank charge or government duty to the amount of a payment.

(6) If an amount payable under this instrument is not an amount of whole dollars, the amount is rounded up to the next dollar.

8 Statutory declaration for body corporate

A statutory declaration required to be made in this instrument by a body corporate must be made by a director or secretary of the body corporate.

Part 2—Limits on allocation of spectrum

9 Simplified outline of this Part

This Part deals with the definition and application of the 1800 MHz allocation limits that apply to the allocation of spectrum licences under this instrument.

The Minister has given the ACMA the 1800 MHz allocation limits direction under subsection 60(10) of the Act, which requires the ACMA to determine procedures that impose limits on the aggregate parts of the spectrum that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, may in total be used by members of a specified group of persons in the 1800 MHz band, namely, any person and that person’s associates.

This Part also sets out when two people are affiliated for the purposes of this instrument. Generally, if two people are affiliated, this may affect their ability to be issued spectrum licences for 1800 MHz lots.

This Part also sets out when a person is affiliated with the holder of a spectrum licence in the 1800 MHz band. In determining and applying procedures imposing the allocation limits, the ACMA must take into account spectrum licences to be allocated under this instrument and spectrum licences already issued to a person. Generally, if a person is affiliated with the holder of a spectrum licence in the 1800 MHz band, this may affect the person’s ability to apply for or be issued spectrum licences for 1800 MHz lots.

No allocation limits apply in relation to the 2 GHz lots, the 2.3 GHz lots or the 3.4 GHz lots.

10 Meaning of 1800 MHz allocation limits

In this instrument, a reference to the 1800 MHz allocation limits is a reference to the limits that, under the 1800 MHz allocation limits direction: (a) must be imposed by the procedures determined in this instrument for the allocation of spectrum licences in the 1800 MHz band; and (b) ensure that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, no person or specified group of persons for the 1800 MHz band may use more than the spectrum specified in Schedule 3 in the 1800 MHz band.

Note: The Minister has given a direction to the ACMA, under subsection 60(10) of the Act, that limits be imposed on the aggregate of the parts of the spectrum in the 1800 MHz band that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, may be used by a person or specified group of persons for the 1800 MHz band. See the 1800 MHz allocation limits direction.

11 Meaning of associate

(1) In this instrument, associate, in relation to a person, means: (a) if the person is 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) 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) if the person is an individual: (i) the individual’s spouse; or (ii) the individual’s de facto partner within the meaning given by the Acts Interpretation Act 1901; or (iii) 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 (iv) a body corporate of which the individual is a director or secretary; or (v) a body corporate that is related to a body corporate of which the individual is a director or secretary; or (c) in all cases – any other person (other than the Commonwealth when represented by the ACMA) who has a relevant agreement with the person that: (i) is for the use by a party to the agreement of spectrum licensed to either of those parties under a spectrum licence for a part of the spectrum referred to in the 1800 MHz re-allocation declaration; or (ii) relates to the acquisition of a spectrum licence for a part of the spectrum referred to in the 1800 MHz re-allocation declaration.

Note: The spectrum referred to in the 1800 MHz re-allocation declaration is the 1800 MHz band.

(2) For paragraph (1)(c), a 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 a roaming services agreement or an agreement between carriers provided for by or under the Telecommunications Act 1997 or Part XIC of the Competition and Consumer Act 2010.

12 Affiliation between applicants or bidders

(1) Two applicants or bidders are affiliated if: (a) the applicants or bidders are associates of each other; or (b) the specified group of persons in relation to one applicant or bidder has at least one member in common with the specified group of persons in relation to the other applicant or bidder.

Note: Paragraph 12(1)(b) means that 2 applicants or bidders are affiliated if they have an associate in common.

(2) If 2 applicants or bidders are affiliated, they are taken to be in a single specified group of persons for the purpose of the 1800 MHz allocation limits.

Note: Section 12 is recursive, so that more than 2 applicants or bidders may be taken to be in a single specified group of persons for the purposes of the 1800 MHz allocation limits. See also the definition of specified group of persons in the 1800 MHz allocation limits direction.

13 Affiliation between applicant or bidder and existing licensee

(1) An applicant or bidder is affiliated with an existing 1800 MHz licensee if: (a) the applicant or bidder and the existing 1800 MHz licensee are associates of each other; or (b) the specified group of persons in relation to the applicant or bidder has at least one member in common with the specified group of persons in relation to the existing 1800 MHz licensee.

Note 1: Paragraph 13(1)(b) means that an applicant or bidder is affiliated with an existing 1800 MHz band licensee if the applicant or bidder and the licensee have an associate in common.

Note 2: An existing 1800 MHz licensee may also be an applicant or bidder.

(2) If an applicant or bidder is affiliated with an existing 1800 MHz licensee, the applicant or bidder and the licensee are taken to be in a single specified group of persons for the purpose of the 1800 MHz allocation limits.

Note: Section 13 is recursive, so that one or more existing 1800 MHz licensees, and one or more of the applicants or bidders, may be taken to be in a single specified group of persons for the purposes of the 1800 MHz limits. See also the definition of specified group of persons in the 1800 MHz allocation limits direction.

14 Information relevant to considering whether applicants, bidders or existing 1800 MHz licensees are affiliated

(1) When considering under this instrument: (a) whether 2 or more applicants or bidders are affiliated; or (b) whether one or more applicants or bidders are affiliated with one or more existing 1800 MHz licensees; the ACMA must have regard to: (c) application forms given under paragraph 29(1)(a); and (d) statutory declarations and statements made under this instrument.

Note: The ACMA will only consider whether two people are affiliated in relation to the auction process if at least one of them has nominated a 1800 MHz lot as one of its preferred lots.

(2) The ACMA may have regard to any other information that it considers relevant.

9 Simplified outline of this Part

This Part deals with the definition and application of the 1800 MHz allocation limits that apply to the allocation of spectrum licences under this instrument.

The Minister has given the ACMA the 1800 MHz allocation limits direction under subsection 60(10) of the Act, which requires the ACMA to determine procedures that impose limits on the aggregate parts of the spectrum that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, may in total be used by members of a specified group of persons in the 1800 MHz band, namely, any person and that person’s associates.

This Part also sets out when two people are affiliated for the purposes of this instrument. Generally, if two people are affiliated, this may affect their ability to be issued spectrum licences for 1800 MHz lots.

This Part also sets out when a person is affiliated with the holder of a spectrum licence in the 1800 MHz band. In determining and applying procedures imposing the allocation limits, the ACMA must take into account spectrum licences to be allocated under this instrument and spectrum licences already issued to a person. Generally, if a person is affiliated with the holder of a spectrum licence in the 1800 MHz band, this may affect the person’s ability to apply for or be issued spectrum licences for 1800 MHz lots.

No allocation limits apply in relation to the 2 GHz lots, the 2.3 GHz lots or the 3.4 GHz lots.

10 Meaning of 1800 MHz allocation limits

In this instrument, a reference to the 1800 MHz allocation limits is a reference to the limits that, under the 1800 MHz allocation limits direction: (a) must be imposed by the procedures determined in this instrument for the allocation of spectrum licences in the 1800 MHz band; and (b) ensure that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, no person or specified group of persons for the 1800 MHz band may use more than the spectrum specified in Schedule 3 in the 1800 MHz band.

Note: The Minister has given a direction to the ACMA, under subsection 60(10) of the Act, that limits be imposed on the aggregate of the parts of the spectrum in the 1800 MHz band that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, may be used by a person or specified group of persons for the 1800 MHz band. See the 1800 MHz allocation limits direction.

11 Meaning of associate

(1) In this instrument, associate, in relation to a person, means: (a) if the person is 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) 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) if the person is an individual: (i) the individual’s spouse; or (ii) the individual’s de facto partner within the meaning given by the Acts Interpretation Act 1901; or (iii) 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 (iv) a body corporate of which the individual is a director or secretary; or (v) a body corporate that is related to a body corporate of which the individual is a director or secretary; or (c) in all cases – any other person (other than the Commonwealth when represented by the ACMA) who has a relevant agreement with the person that: (i) is for the use by a party to the agreement of spectrum licensed to either of those parties under a spectrum licence for a part of the spectrum referred to in the 1800 MHz re-allocation declaration; or (ii) relates to the acquisition of a spectrum licence for a part of the spectrum referred to in the 1800 MHz re-allocation declaration.

Note: The spectrum referred to in the 1800 MHz re-allocation declaration is the 1800 MHz band.

(2) For paragraph (1)(c), a 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 a roaming services agreement or an agreement between carriers provided for by or under the Telecommunications Act 1997 or Part XIC of the Competition and Consumer Act 2010.

12 Affiliation between applicants or bidders

(1) Two applicants or bidders are affiliated if: (a) the applicants or bidders are associates of each other; or (b) the specified group of persons in relation to one applicant or bidder has at least one member in common with the specified group of persons in relation to the other applicant or bidder.

Note: Paragraph 12(1)(b) means that 2 applicants or bidders are affiliated if they have an associate in common.

(2) If 2 applicants or bidders are affiliated, they are taken to be in a single specified group of persons for the purpose of the 1800 MHz allocation limits.

Note: Section 12 is recursive, so that more than 2 applicants or bidders may be taken to be in a single specified group of persons for the purposes of the 1800 MHz allocation limits. See also the definition of specified group of persons in the 1800 MHz allocation limits direction.

13 Affiliation between applicant or bidder and existing licensee

(1) An applicant or bidder is affiliated with an existing 1800 MHz licensee if: (a) the applicant or bidder and the existing 1800 MHz licensee are associates of each other; or (b) the specified group of persons in relation to the applicant or bidder has at least one member in common with the specified group of persons in relation to the existing 1800 MHz licensee.

Note 1: Paragraph 13(1)(b) means that an applicant or bidder is affiliated with an existing 1800 MHz band licensee if the applicant or bidder and the licensee have an associate in common.

Note 2: An existing 1800 MHz licensee may also be an applicant or bidder.

(2) If an applicant or bidder is affiliated with an existing 1800 MHz licensee, the applicant or bidder and the licensee are taken to be in a single specified group of persons for the purpose of the 1800 MHz allocation limits.

Note: Section 13 is recursive, so that one or more existing 1800 MHz licensees, and one or more of the applicants or bidders, may be taken to be in a single specified group of persons for the purposes of the 1800 MHz limits. See also the definition of specified group of persons in the 1800 MHz allocation limits direction.

14 Information relevant to considering whether applicants, bidders or existing 1800 MHz licensees are affiliated

(1) When considering under this instrument: (a) whether 2 or more applicants or bidders are affiliated; or (b) whether one or more applicants or bidders are affiliated with one or more existing 1800 MHz licensees; the ACMA must have regard to: (c) application forms given under paragraph 29(1)(a); and (d) statutory declarations and statements made under this instrument.

Note: The ACMA will only consider whether two people are affiliated in relation to the auction process if at least one of them has nominated a 1800 MHz lot as one of its preferred lots.

(2) The ACMA may have regard to any other information that it considers relevant.

Part 3—Confidentiality

15 Simplified outline of this Part

This Part imposes a confidentiality obligation on participants in the allocation process.

A person who makes an application to be registered as a bidder in an auction must keep particular information confidential, including information about the person’s bidding strategy and about the amount the person is willing to pay for a spectrum licence, subject to some permitted disclosures (such as to the ACMA).

Others who know this information may also be subject to an obligation to keep the information confidential (including some employees of the person).

There is also an obligation on the person making the application to report any disclosures of confidential information.

16 Meaning of confidential information

In this instrument, confidential information, in relation to an applicant or bidder, means: (a) documents the applicant or bidder has given to the ACMA for the purpose of the allocation process; and (b) information provided to the bidder under subsection 51(2) for the purpose of participating in the auction; and (c) a bid made by the bidder in the auction; and (d) a bid proposed to be made by the applicant or bidder or a bid under consideration by the applicant or bidder; and (e) the applicant’s or bidder’s bidding strategy; and (f) the amount the applicant or bidder is willing to pay for: (i) a lot; or (ii) a combination of lots; and (g) information that, if disclosed, could be reasonably expected to affect or be capable of affecting: (i) bids made or proposed to be made by another applicant or bidder; or (ii) another applicant or bidder’s bidding strategy; and (h) information that, if disclosed, could be reasonably expected to affect or be capable of affecting the outcome of the allocation process.

17 Obligation not to disclose confidential information

(1) An applicant or bidder, or a related person who has knowledge of the applicant’s or bidder’s confidential information, must not, either directly or indirectly, disclose the applicant’s or bidder’s confidential information about the allocation process to any person. (2) Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, disclosing information about the allocation process: (a) for the purpose of obtaining advice relating to the allocation process from a person in the person’s professional capacity; or (b) for the purpose of obtaining finance to make a payment in relation to the allocation process; or (c) to the ACMA; or (d) for an applicant or bidder – to a related person of that applicant or bidder; or (e) for a related person of an applicant or bidder – to that applicant or bidder, or to another related person of the same applicant or bidder; or (f) as authorised by this instrument or as otherwise required by law.

Note: In some cases, the person to whom the information is disclosed may become a related person who is required to give a deed of confidentiality to the ACMA – see section 21.

(3) Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, disclosing information about the allocation process if: (a) the information is already publicly available; and (b) the information was not made available because of a breach of this section.

18 Duration of confidentiality obligations

Section 17 applies to an applicant or bidder and a related person of the applicant or bidder until: (a) for confidential information that relates to a spectrum licence allocated or to be allocated in accordance with Part 5 of this instrument – the applicant is notified under subsection 44(1) that the ACMA has received the applicant’s acceptance of an offer of a spectrum licence; or (b) the bidder is notified under subsection 64(1) that the bidder is not a winning bidder; or (c) the applicant, as a withdrawn applicant, is notified under subsection 64(3) that the applicant’s confidentiality obligations are at an end; or (d) the bidder, as a winning bidder, makes a statement under section 65.

19 Reporting breach of confidentiality

An applicant or bidder, or related person of an applicant or bidder, who discloses confidential information in breach of section 17 or who receives the confidential information of another applicant or bidder must report the disclosure or receipt to the ACMA in writing as soon as possible, but no later than 2 working days after becoming aware the disclosure or receipt has occurred.

20 Notice of breach of confidentiality

(1) If the ACMA has reason to believe that an applicant or bidder, or a related person of the applicant or bidder, may have disclosed confidential information in breach of section 17 or received confidential information as a result of a breach of section 17, the ACMA must: (a) tell the applicant or bidder, giving details of the matter; and (b) ask the applicant or bidder to make submissions about the matter; and (c) state a deadline for the receipt of submissions that is no more than 5 working days after the date of the request. (2) If the ACMA forms the belief before: (a) for confidential information that relates to a spectrum licence allocated or to be allocated in accordance with Part 5 of this instrument – notifying the applicant under subsection 44(1) that the ACMA has received the applicant’s acceptance of an offer of a spectrum licence; or (b) in any other case – the end of the auction period; the ACMA is not required to tell the applicant or bidder before that time, but must tell the applicant or bidder as soon as practicable after that time.

21 Deed of confidentiality required from related persons

(1) A related person of an applicant or bidder who has knowledge of the applicant’s or bidder’s confidential information must give the ACMA a deed of confidentiality if the person is: (a) an employee of the applicant or bidder; or (b) an employee of a related body corporate of the applicant or bidder that provides services to the applicant or bidder. (2) If a person mentioned in paragraph (1)(a) or (b) receives knowledge of the applicant’s confidential information before the application deadline, the person must give the ACMA the deed of confidentiality before the application deadline.

Note: A deed of confidentiality form must be provided by the ACMA as part of the applicant information package on the ACMA’s website at www.acma.gov.au – see section 27 and paragraph 28(1)(r).

15 Simplified outline of this Part

This Part imposes a confidentiality obligation on participants in the allocation process.

A person who makes an application to be registered as a bidder in an auction must keep particular information confidential, including information about the person’s bidding strategy and about the amount the person is willing to pay for a spectrum licence, subject to some permitted disclosures (such as to the ACMA).

Others who know this information may also be subject to an obligation to keep the information confidential (including some employees of the person).

There is also an obligation on the person making the application to report any disclosures of confidential information.

16 Meaning of confidential information

In this instrument, confidential information, in relation to an applicant or bidder, means: (a) documents the applicant or bidder has given to the ACMA for the purpose of the allocation process; and (b) information provided to the bidder under subsection 51(2) for the purpose of participating in the auction; and (c) a bid made by the bidder in the auction; and (d) a bid proposed to be made by the applicant or bidder or a bid under consideration by the applicant or bidder; and (e) the applicant’s or bidder’s bidding strategy; and (f) the amount the applicant or bidder is willing to pay for: (i) a lot; or (ii) a combination of lots; and (g) information that, if disclosed, could be reasonably expected to affect or be capable of affecting: (i) bids made or proposed to be made by another applicant or bidder; or (ii) another applicant or bidder’s bidding strategy; and (h) information that, if disclosed, could be reasonably expected to affect or be capable of affecting the outcome of the allocation process.

17 Obligation not to disclose confidential information

(1) An applicant or bidder, or a related person who has knowledge of the applicant’s or bidder’s confidential information, must not, either directly or indirectly, disclose the applicant’s or bidder’s confidential information about the allocation process to any person. (2) Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, disclosing information about the allocation process: (a) for the purpose of obtaining advice relating to the allocation process from a person in the person’s professional capacity; or (b) for the purpose of obtaining finance to make a payment in relation to the allocation process; or (c) to the ACMA; or (d) for an applicant or bidder – to a related person of that applicant or bidder; or (e) for a related person of an applicant or bidder – to that applicant or bidder, or to another related person of the same applicant or bidder; or (f) as authorised by this instrument or as otherwise required by law.

Note: In some cases, the person to whom the information is disclosed may become a related person who is required to give a deed of confidentiality to the ACMA – see section 21.

(3) Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, disclosing information about the allocation process if: (a) the information is already publicly available; and (b) the information was not made available because of a breach of this section.

18 Duration of confidentiality obligations

Section 17 applies to an applicant or bidder and a related person of the applicant or bidder until: (a) for confidential information that relates to a spectrum licence allocated or to be allocated in accordance with Part 5 of this instrument – the applicant is notified under subsection 44(1) that the ACMA has received the applicant’s acceptance of an offer of a spectrum licence; or (b) the bidder is notified under subsection 64(1) that the bidder is not a winning bidder; or (c) the applicant, as a withdrawn applicant, is notified under subsection 64(3) that the applicant’s confidentiality obligations are at an end; or (d) the bidder, as a winning bidder, makes a statement under section 65.

19 Reporting breach of confidentiality

An applicant or bidder, or related person of an applicant or bidder, who discloses confidential information in breach of section 17 or who receives the confidential information of another applicant or bidder must report the disclosure or receipt to the ACMA in writing as soon as possible, but no later than 2 working days after becoming aware the disclosure or receipt has occurred.

20 Notice of breach of confidentiality

(1) If the ACMA has reason to believe that an applicant or bidder, or a related person of the applicant or bidder, may have disclosed confidential information in breach of section 17 or received confidential information as a result of a breach of section 17, the ACMA must: (a) tell the applicant or bidder, giving details of the matter; and (b) ask the applicant or bidder to make submissions about the matter; and (c) state a deadline for the receipt of submissions that is no more than 5 working days after the date of the request. (2) If the ACMA forms the belief before: (a) for confidential information that relates to a spectrum licence allocated or to be allocated in accordance with Part 5 of this instrument – notifying the applicant under subsection 44(1) that the ACMA has received the applicant’s acceptance of an offer of a spectrum licence; or (b) in any other case – the end of the auction period; the ACMA is not required to tell the applicant or bidder before that time, but must tell the applicant or bidder as soon as practicable after that time.

21 Deed of confidentiality required from related persons

(1) A related person of an applicant or bidder who has knowledge of the applicant’s or bidder’s confidential information must give the ACMA a deed of confidentiality if the person is: (a) an employee of the applicant or bidder; or (b) an employee of a related body corporate of the applicant or bidder that provides services to the applicant or bidder. (2) If a person mentioned in paragraph (1)(a) or (b) receives knowledge of the applicant’s confidential information before the application deadline, the person must give the ACMA the deed of confidentiality before the application deadline.

Note: A deed of confidentiality form must be provided by the ACMA as part of the applicant information package on the ACMA’s website at www.acma.gov.au – see section 27 and paragraph 28(1)(r).

Part 4—Procedures before auction or allocation for a pre-determined price

Division 1—Simplified outline

22 Simplified outline of this Part

This Part deals with the procedures to be undertaken before conducting the auction or allocating spectrum licences for a pre-determined price.

The ACMA must make decisions in relation to the allocation process, including setting deadlines by which persons wishing to participate in the allocation process must give the ACMA completed forms and information. The ACMA must also advertise the auction and prepare an applicant information package.

Persons wishing to participate in the allocation process must complete forms, deeds and declarations, and give them to the ACMA by the relevant deadlines. Some of the forms and declarations will contain information about the associates of the person. The ACMA will use this information to work out whether any applicants are affiliated with each other, or with the holder of a spectrum licence, for the purpose of the 1800 MHz allocation limits. If there are such affiliations, this may have consequences for the applicant’s ability to participate in the allocation process in relation to the 1800 MHz lots.

This Part also requires those applicants who are able to participate in the allocation process to pay a deposit, or provide a deed of financial security, in relation to the lots on which those applicants wish to bid.

Division 2—Preliminary

23 Auction manager

The ACMA must, in writing, appoint: (a) a member, within the meaning of the Australian Communications and Media Authority Act 2005; or (b) a member of the ACMA staff; or (c) a person whose services are made available for the purposes of the ACMA under paragraph 55(1)(a) of the Australian Communications and Media Authority Act 2005; to manage the auction.

24 Setting application fee

Before the ACMA publishes a notice inviting applications for the auction, it must, in writing, set the amount of the application fee.

25 Application fee not refundable

An application fee paid under this instrument is not refundable in any circumstances, including if an applicant withdraws or is taken to withdraw from the auction, or is not permitted to make a bid on a lot in the auction.

26 Starting prices

The ACMA must set a starting price for each lot.

Division 3—Advertising the auction

27 Advertising of auction by ACMA

(1) The ACMA must publish on its website a notice that: (a) describes the parts of the spectrum to be auctioned; and (b) gives a brief description of the way the auction will be conducted; and (c) states that the auction will be conducted in accordance with this instrument; and (d) states that the ACMA may conclude that it can allocate a spectrum licence or licences for lots at a pre-determined price without having to conduct an auction; and (e) invites persons to apply to the ACMA to take part in the auction; and (f) states the date and time (the application deadline) before which: (i) completed application forms must be received by the ACMA; and (ii) the application fee must be paid to the ACMA on behalf of the Commonwealth; and (iii) completed preference nomination forms must be received by the ACMA; and (iv) deposits must be paid to the ACMA on behalf of the Commonwealth or deeds of financial security must be given to the ACMA on behalf of the Commonwealth; and (g) states that applications may not be withdrawn after the application deadline; and (h) states that the applicant information package can be obtained from the ACMA’s website at the electronic address given in the notice. (2) If a matter mentioned in the notice changes, the ACMA must publish another notice giving details of the change on its website. (3) The ACMA may publish the information required by subsections (1) and (2) by additional methods, and may publish other information about the auction by any method.

28 Applicant information package

(1) The applicant information package must contain the following documents and information: (a) the 1800 MHz re-allocation declaration; (b) the 2 GHz and 3.4 GHz designation notice; (c) the 2.3 GHz designation notice; (d) the 1800 MHz marketing plan; (e) the 2 GHz marketing plan; (f) the 2.3 GHz marketing plan; (g) the 3.4 GHz marketing plan; (h) this instrument; (i) the 1800 MHz allocation limits direction; (j) a guide to the auction; (k) a statement that the ACMA may offer to allocate spectrum licences for lots for a pre-determined price, including under Schedule 4; (l) an application form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (m) a preference nomination form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (n) the starting price for each lot; (o) a deed of financial security form approved by the ACMA; (p) information about providing a deed of financial security as an alternative to a deposit; (q) a deed of acknowledgment form approved by the ACMA, that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument; (r) a deed of confidentiality form approved by the ACMA, that includes a statement that an applicant (or related person of an applicant) agrees not to disclose confidential information before section 17 ceases to apply to the relevant applicant or the related person; (s) statutory declaration forms for the purposes of this instrument; (t) the amount of the application fee for the auction; (u) the application deadline; (v) the physical address for giving documents to the ACMA; (w) the email address for giving documents to the ACMA; (x) the fax number for giving documents to the ACMA.

Note: An application form approved for paragraph (l) may require an applicant that has nominated a 1800 MHz lot as one of its preferred lots to provide details about the associates of the applicant.

(2) The applicant information package may also contain other information about the allocation process. (3) The applicant information package must be published on the ACMA’s website. (4) If the ACMA makes any change to the contents of the applicant information package after it is published, the ACMA must publish a notice giving details of the change on its website.

Division 4—Application to participate in auction

29 Making an application

(1) A person may apply to become registered as a bidder in the auction by: (a) giving the ACMA a completed application form; and (b) giving the ACMA a deed of acknowledgement; and (c) giving the ACMA a deed of confidentiality executed by the applicant; and (d) giving the ACMA a completed preference nomination form; and (e) paying the application fee; and (f) doing one of the following: (i) paying a deposit of an amount to the ACMA on behalf of the Commonwealth; or (ii) giving the ACMA on behalf of the Commonwealth a deed of financial security, for an amount; or (iii) paying a deposit of part of an amount and giving a deed of financial security for the remainder; and (g) if: (i) the applicant has nominated one or more 1800 MHz lots in its preference nomination form; and (ii) the applicant is not an existing 1800 MHz licensee; giving the ACMA a statutory declaration stating whether the applicant is affiliated with an existing 1800 MHz licensee; before the application deadline.

Note 1: For information on how the application fee must be paid, see section 7.

Note 2: For information on how a deposit is paid, see section 7. For information on how a deed of financial security is given, see section 6 and subsection 33(8).

(2) An applicant may give the ACMA an updated document for paragraphs (1)(a) to (d), or subparagraphs (1)(f)(ii) or (iii), at any time until the application deadline, but not after the deadline. (3) An applicant may give the ACMA an updated document for paragraph (1)(g) at any time. (4) For paragraph (1)(f), amount, in relation to a person, has the meaning given by subsection 33(1).

30 Applicants to notify ACMA if application information incorrect

If an applicant knows that any of the information in the application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.

31 Preferred lots

(1) Subject to this section and sections 32 and 33, an applicant’s preferred lots are the lots nominated as the applicant’s preferred lots in the completed preference nomination form. (2) Subject to this section and sections 32 and 33, an applicant may nominate one or more lots as its preferred lots. (3) An existing 1800 MHz licensee must not nominate a lot, or a combination of lots, if the aggregate of: (a) the lot size of that lot, or of that combination of lots; and (b) the part of the spectrum that the licensee, or the specified group of persons for the 1800 MHz band that includes the licensee, may use in the 1800 MHz band; exceeds the 1800 MHz allocation limits. (4) If an applicant: (a) must not nominate a lot, or a combination of lots, under subsection (3); and (b) purports to nominate that lot, or that combination of lots; the applicant is taken not to have nominated the lot, or the combination of lots, and the ACMA must tell an applicant in writing that it is taken not to have nominated the lot or lots.

32 Procedure if applicant affiliated with existing 1800 MHz licensee

(1) If: (a) in a statutory declaration given under section 29 an applicant (the affiliated applicant) has stated that it is affiliated with an existing 1800 MHz licensee; and (b) the affiliated applicant has nominated, in a preference nomination form, one or more 1800 MHz lots (the nominated lots) as its preferred lots; and (c) the aggregate of: (i) the lot size of one or more of the nominated lots; and (ii) the part or parts of the spectrum that the existing 1800 MHz licensee, or the specified group of persons that includes the affiliated applicant and the existing 1800 MHz licensee, may use in the 1800 MHz band; exceeds the 1800 MHz allocation limits; the ACMA must, in writing, notify the affiliated applicant that: (d) the applicant is affiliated with the existing 1800 MHz licensee; and (e) if the affiliated applicant were to be the winning bidder for one or more 1800 MHz lots, the 1800 MHz allocation limits would be exceeded; and (f) to participate in stage 1 of the auction, in relation to the 1800 MHz lots, the affiliated applicant must give the ACMA a new preference nomination form.

Note: This section applies whether or not the existing 1800 MHz licensee is an applicant.

(2) Within 5 working days of the ACMA notifying the affiliated applicant under subsection (1), the applicant must give the ACMA a new preference nomination form (revised preference nomination form). (3) If an affiliated applicant does not comply with subsection (2), the affiliated applicant is taken not to have nominated any 1800 MHz lots as its preferred lots. (4) If: (a) the affiliated applicant complies with subsection (2); and (b) the aggregate of: (i) the lot size of one or more of the lots nominated by the affiliated applicant in the revised preference nomination form; and (ii) the part or parts of the spectrum that the existing 1800 MHz licensee, or the specified group of persons that includes the affiliated applicant and the existing 1800 MHz licensee, may use in the 1800 MHz band; exceeds the 1800 MHz allocation limits; the affiliated applicant is taken not to have nominated any 1800 MHz lots as its preferred lots. (5) The ACMA must tell an applicant in writing if, under subsection (3) or (4), it is taken not to have nominated any 1800 MHz lots as its preferred lots. (6) Subject to subsections (3) and (4), if an affiliated applicant complies with subsection (2), the applicant’s preferred lots are the lots nominated as the applicant’s preferred lots in the revised preference nomination form.

Note 1: An applicant’s ability to nominate preferred lots in the auction may be restricted as a result of the application of the 1800 MHz allocation limits to the lots to be auctioned under this instrument and the spectrum licences held by existing 1800 MHz licensees.

Note 2: An applicant’s preferred lots may also be affected by section 33.

33 Amount of deposit or deed of financial security required

(1) For the purposes of paragraph 29(1)(f), the amount required, in relation to an applicant, is 10 percent of the sum of the starting prices of each of the applicant’s preferred lots nominated in the preference nomination form.

Note: If an applicant gives the ACMA a revised preference nomination form under section 32, the amount required does not increase or decrease proportionally to any change in the sum of the starting prices of the applicant’s preferred lots.

(2) If an applicant pays a deposit or gives a deed of financial security (or both) for an amount less than the amount under subsection (1), the ACMA must, in writing, notify the applicant that: (a) the applicant has paid a deposit or given a deed of financial security (or both), whichever the case may be, for less than the amount under subsection (1); and (b) the applicant must, before the application deadline or no later than 3 working days after the date of the notice (whichever is the later), pay a deposit or give a deed of financial security (or both) for the remainder of the amount under subsection (1). (3) If the applicant does not comply with the notice given under subsection (2), the applicant’s preferred lots are to be worked out by the ACMA removing from the applicant’s preference nomination form the lot or lots with the lowest starting price until the remaining preferred lots result in an amount under subsection (1) that is equal to, or less than, the deposit paid or the deed of financial security given (or both).

Note 1: The removal of lots is not specific or confined to a single band. If an applicant has nominated lots in multiple bands, the lot with the lowest starting price will be the first removed under this subsection, regardless of the band the lot is in.

Note 2: See subsection (13) for dealing with lots with the same starting price.

(4) If, after the ACMA removes lots from an applicant’s preference nomination form in accordance with subsection (3), no lots remain, the applicant is taken to have withdrawn its application. (5) The ACMA must tell an applicant in writing if: (a) the applicant has had its preferred lots worked out in accordance with subsection (3); or (b) the applicant is taken to have withdrawn its application under subsection (4). (6) A deed of financial security must be executed by an Australian-owned authorised deposit-taking institution (as defined in the Banking Act 1959) which is a bank. (7) If a deed of financial security is executed by a person acting under a power of attorney for a body corporate, the applicant must give the ACMA a copy of the power of attorney with the deed. (8) If a deed of financial security is given to the ACMA by email or fax before the application deadline, the original deed must be received by the ACMA no later than 3 working days after the application deadline (or, if the ACMA agrees to a later time, the agreed time) for the deed to be taken to have been given to the ACMA. (9) An applicant is taken to have withdrawn its application if the ACMA is not satisfied that the person executing a deed of financial security is a person mentioned in subsection (6). (10) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (9). (11) If: (a) the ACMA removes a lot from an applicant’s preference nomination form in accordance with subsection (3); and (b) the applicant has given the ACMA a revised preference nomination form under section 32; and (c) the lot is included in the revised preference nomination form; and (d) the lots nominated in the revised preference nomination form are the applicant’s preferred lots; the lot is taken to be removed from the applicant’s revised preference nomination form. (12) The ACMA must tell an applicant in writing if a lot is taken to be removed from a revised preference nomination form under subsection (11). (13) For the purposes of subsection (3), if: (a) two or more lots in a preference nomination form have the same starting price; (b) no other lot remaining in the preference nomination form has a lower starting price; the ACMA may select any of those lots to be the lot with the lowest starting price.

Division 5—Other matters

34 Bid increment percentage

After the application deadline, the ACMA must set a bid increment percentage for each lot as a percentage of the starting price for the lot in the first round, and of the specified price for the lot in any other round.

Note: The auction manager may vary the percentage set under section 34 – see clause 6 of Schedule 1.

35 Withdrawal of application

(1) An applicant may withdraw its application before the application deadline, by giving the ACMA notice in writing. (2) If an applicant who withdraws its application under subsection (1), or who is taken to have withdrawn its application under another section of this instrument, has paid a deposit under section 29 or in accordance with section 33, the ACMA must refund the deposit in accordance with subsection 64(4). (3) Subsection (2) is subject to sections 81 and 84. (4) An applicant may not withdraw its application after the application deadline. (5) An applicant must not be re-admitted to the allocation process after withdrawing its application.

Part 4—Procedures before auction or allocation for a pre-determined price

Division 1—Simplified outline

22 Simplified outline of this Part

This Part deals with the procedures to be undertaken before conducting the auction or allocating spectrum licences for a pre-determined price.

The ACMA must make decisions in relation to the allocation process, including setting deadlines by which persons wishing to participate in the allocation process must give the ACMA completed forms and information. The ACMA must also advertise the auction and prepare an applicant information package.

Persons wishing to participate in the allocation process must complete forms, deeds and declarations, and give them to the ACMA by the relevant deadlines. Some of the forms and declarations will contain information about the associates of the person. The ACMA will use this information to work out whether any applicants are affiliated with each other, or with the holder of a spectrum licence, for the purpose of the 1800 MHz allocation limits. If there are such affiliations, this may have consequences for the applicant’s ability to participate in the allocation process in relation to the 1800 MHz lots.

This Part also requires those applicants who are able to participate in the allocation process to pay a deposit, or provide a deed of financial security, in relation to the lots on which those applicants wish to bid.

Division 2—Preliminary

23 Auction manager

The ACMA must, in writing, appoint: (a) a member, within the meaning of the Australian Communications and Media Authority Act 2005; or (b) a member of the ACMA staff; or (c) a person whose services are made available for the purposes of the ACMA under paragraph 55(1)(a) of the Australian Communications and Media Authority Act 2005; to manage the auction.

24 Setting application fee

Before the ACMA publishes a notice inviting applications for the auction, it must, in writing, set the amount of the application fee.

25 Application fee not refundable

An application fee paid under this instrument is not refundable in any circumstances, including if an applicant withdraws or is taken to withdraw from the auction, or is not permitted to make a bid on a lot in the auction.

26 Starting prices

The ACMA must set a starting price for each lot.

Division 3—Advertising the auction

27 Advertising of auction by ACMA

(1) The ACMA must publish on its website a notice that: (a) describes the parts of the spectrum to be auctioned; and (b) gives a brief description of the way the auction will be conducted; and (c) states that the auction will be conducted in accordance with this instrument; and (d) states that the ACMA may conclude that it can allocate a spectrum licence or licences for lots at a pre-determined price without having to conduct an auction; and (e) invites persons to apply to the ACMA to take part in the auction; and (f) states the date and time (the application deadline) before which: (i) completed application forms must be received by the ACMA; and (ii) the application fee must be paid to the ACMA on behalf of the Commonwealth; and (iii) completed preference nomination forms must be received by the ACMA; and (iv) deposits must be paid to the ACMA on behalf of the Commonwealth or deeds of financial security must be given to the ACMA on behalf of the Commonwealth; and (g) states that applications may not be withdrawn after the application deadline; and (h) states that the applicant information package can be obtained from the ACMA’s website at the electronic address given in the notice. (2) If a matter mentioned in the notice changes, the ACMA must publish another notice giving details of the change on its website. (3) The ACMA may publish the information required by subsections (1) and (2) by additional methods, and may publish other information about the auction by any method.

28 Applicant information package

(1) The applicant information package must contain the following documents and information: (a) the 1800 MHz re-allocation declaration; (b) the 2 GHz and 3.4 GHz designation notice; (c) the 2.3 GHz designation notice; (d) the 1800 MHz marketing plan; (e) the 2 GHz marketing plan; (f) the 2.3 GHz marketing plan; (g) the 3.4 GHz marketing plan; (h) this instrument; (i) the 1800 MHz allocation limits direction; (j) a guide to the auction; (k) a statement that the ACMA may offer to allocate spectrum licences for lots for a pre-determined price, including under Schedule 4; (l) an application form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (m) a preference nomination form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (n) the starting price for each lot; (o) a deed of financial security form approved by the ACMA; (p) information about providing a deed of financial security as an alternative to a deposit; (q) a deed of acknowledgment form approved by the ACMA, that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument; (r) a deed of confidentiality form approved by the ACMA, that includes a statement that an applicant (or related person of an applicant) agrees not to disclose confidential information before section 17 ceases to apply to the relevant applicant or the related person; (s) statutory declaration forms for the purposes of this instrument; (t) the amount of the application fee for the auction; (u) the application deadline; (v) the physical address for giving documents to the ACMA; (w) the email address for giving documents to the ACMA; (x) the fax number for giving documents to the ACMA.

Note: An application form approved for paragraph (l) may require an applicant that has nominated a 1800 MHz lot as one of its preferred lots to provide details about the associates of the applicant.

(2) The applicant information package may also contain other information about the allocation process. (3) The applicant information package must be published on the ACMA’s website. (4) If the ACMA makes any change to the contents of the applicant information package after it is published, the ACMA must publish a notice giving details of the change on its website.

Division 4—Application to participate in auction

29 Making an application

(1) A person may apply to become registered as a bidder in the auction by: (a) giving the ACMA a completed application form; and (b) giving the ACMA a deed of acknowledgement; and (c) giving the ACMA a deed of confidentiality executed by the applicant; and (d) giving the ACMA a completed preference nomination form; and (e) paying the application fee; and (f) doing one of the following: (i) paying a deposit of an amount to the ACMA on behalf of the Commonwealth; or (ii) giving the ACMA on behalf of the Commonwealth a deed of financial security, for an amount; or (iii) paying a deposit of part of an amount and giving a deed of financial security for the remainder; and (g) if: (i) the applicant has nominated one or more 1800 MHz lots in its preference nomination form; and (ii) the applicant is not an existing 1800 MHz licensee; giving the ACMA a statutory declaration stating whether the applicant is affiliated with an existing 1800 MHz licensee; before the application deadline.

Note 1: For information on how the application fee must be paid, see section 7.

Note 2: For information on how a deposit is paid, see section 7. For information on how a deed of financial security is given, see section 6 and subsection 33(8).

(2) An applicant may give the ACMA an updated document for paragraphs (1)(a) to (d), or subparagraphs (1)(f)(ii) or (iii), at any time until the application deadline, but not after the deadline. (3) An applicant may give the ACMA an updated document for paragraph (1)(g) at any time. (4) For paragraph (1)(f), amount, in relation to a person, has the meaning given by subsection 33(1).

30 Applicants to notify ACMA if application information incorrect

If an applicant knows that any of the information in the application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.

31 Preferred lots

(1) Subject to this section and sections 32 and 33, an applicant’s preferred lots are the lots nominated as the applicant’s preferred lots in the completed preference nomination form. (2) Subject to this section and sections 32 and 33, an applicant may nominate one or more lots as its preferred lots. (3) An existing 1800 MHz licensee must not nominate a lot, or a combination of lots, if the aggregate of: (a) the lot size of that lot, or of that combination of lots; and (b) the part of the spectrum that the licensee, or the specified group of persons for the 1800 MHz band that includes the licensee, may use in the 1800 MHz band; exceeds the 1800 MHz allocation limits. (4) If an applicant: (a) must not nominate a lot, or a combination of lots, under subsection (3); and (b) purports to nominate that lot, or that combination of lots; the applicant is taken not to have nominated the lot, or the combination of lots, and the ACMA must tell an applicant in writing that it is taken not to have nominated the lot or lots.

32 Procedure if applicant affiliated with existing 1800 MHz licensee

(1) If: (a) in a statutory declaration given under section 29 an applicant (the affiliated applicant) has stated that it is affiliated with an existing 1800 MHz licensee; and (b) the affiliated applicant has nominated, in a preference nomination form, one or more 1800 MHz lots (the nominated lots) as its preferred lots; and (c) the aggregate of: (i) the lot size of one or more of the nominated lots; and (ii) the part or parts of the spectrum that the existing 1800 MHz licensee, or the specified group of persons that includes the affiliated applicant and the existing 1800 MHz licensee, may use in the 1800 MHz band; exceeds the 1800 MHz allocation limits; the ACMA must, in writing, notify the affiliated applicant that: (d) the applicant is affiliated with the existing 1800 MHz licensee; and (e) if the affiliated applicant were to be the winning bidder for one or more 1800 MHz lots, the 1800 MHz allocation limits would be exceeded; and (f) to participate in stage 1 of the auction, in relation to the 1800 MHz lots, the affiliated applicant must give the ACMA a new preference nomination form.

Note: This section applies whether or not the existing 1800 MHz licensee is an applicant.

(2) Within 5 working days of the ACMA notifying the affiliated applicant under subsection (1), the applicant must give the ACMA a new preference nomination form (revised preference nomination form). (3) If an affiliated applicant does not comply with subsection (2), the affiliated applicant is taken not to have nominated any 1800 MHz lots as its preferred lots. (4) If: (a) the affiliated applicant complies with subsection (2); and (b) the aggregate of: (i) the lot size of one or more of the lots nominated by the affiliated applicant in the revised preference nomination form; and (ii) the part or parts of the spectrum that the existing 1800 MHz licensee, or the specified group of persons that includes the affiliated applicant and the existing 1800 MHz licensee, may use in the 1800 MHz band; exceeds the 1800 MHz allocation limits; the affiliated applicant is taken not to have nominated any 1800 MHz lots as its preferred lots. (5) The ACMA must tell an applicant in writing if, under subsection (3) or (4), it is taken not to have nominated any 1800 MHz lots as its preferred lots. (6) Subject to subsections (3) and (4), if an affiliated applicant complies with subsection (2), the applicant’s preferred lots are the lots nominated as the applicant’s preferred lots in the revised preference nomination form.

Note 1: An applicant’s ability to nominate preferred lots in the auction may be restricted as a result of the application of the 1800 MHz allocation limits to the lots to be auctioned under this instrument and the spectrum licences held by existing 1800 MHz licensees.

Note 2: An applicant’s preferred lots may also be affected by section 33.

33 Amount of deposit or deed of financial security required

(1) For the purposes of paragraph 29(1)(f), the amount required, in relation to an applicant, is 10 percent of the sum of the starting prices of each of the applicant’s preferred lots nominated in the preference nomination form.

Note: If an applicant gives the ACMA a revised preference nomination form under section 32, the amount required does not increase or decrease proportionally to any change in the sum of the starting prices of the applicant’s preferred lots.

(2) If an applicant pays a deposit or gives a deed of financial security (or both) for an amount less than the amount under subsection (1), the ACMA must, in writing, notify the applicant that: (a) the applicant has paid a deposit or given a deed of financial security (or both), whichever the case may be, for less than the amount under subsection (1); and (b) the applicant must, before the application deadline or no later than 3 working days after the date of the notice (whichever is the later), pay a deposit or give a deed of financial security (or both) for the remainder of the amount under subsection (1). (3) If the applicant does not comply with the notice given under subsection (2), the applicant’s preferred lots are to be worked out by the ACMA removing from the applicant’s preference nomination form the lot or lots with the lowest starting price until the remaining preferred lots result in an amount under subsection (1) that is equal to, or less than, the deposit paid or the deed of financial security given (or both).

Note 1: The removal of lots is not specific or confined to a single band. If an applicant has nominated lots in multiple bands, the lot with the lowest starting price will be the first removed under this subsection, regardless of the band the lot is in.

Note 2: See subsection (13) for dealing with lots with the same starting price.

(4) If, after the ACMA removes lots from an applicant’s preference nomination form in accordance with subsection (3), no lots remain, the applicant is taken to have withdrawn its application. (5) The ACMA must tell an applicant in writing if: (a) the applicant has had its preferred lots worked out in accordance with subsection (3); or (b) the applicant is taken to have withdrawn its application under subsection (4). (6) A deed of financial security must be executed by an Australian-owned authorised deposit-taking institution (as defined in the Banking Act 1959) which is a bank. (7) If a deed of financial security is executed by a person acting under a power of attorney for a body corporate, the applicant must give the ACMA a copy of the power of attorney with the deed. (8) If a deed of financial security is given to the ACMA by email or fax before the application deadline, the original deed must be received by the ACMA no later than 3 working days after the application deadline (or, if the ACMA agrees to a later time, the agreed time) for the deed to be taken to have been given to the ACMA. (9) An applicant is taken to have withdrawn its application if the ACMA is not satisfied that the person executing a deed of financial security is a person mentioned in subsection (6). (10) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (9). (11) If: (a) the ACMA removes a lot from an applicant’s preference nomination form in accordance with subsection (3); and (b) the applicant has given the ACMA a revised preference nomination form under section 32; and (c) the lot is included in the revised preference nomination form; and (d) the lots nominated in the revised preference nomination form are the applicant’s preferred lots; the lot is taken to be removed from the applicant’s revised preference nomination form. (12) The ACMA must tell an applicant in writing if a lot is taken to be removed from a revised preference nomination form under subsection (11). (13) For the purposes of subsection (3), if: (a) two or more lots in a preference nomination form have the same starting price; (b) no other lot remaining in the preference nomination form has a lower starting price; the ACMA may select any of those lots to be the lot with the lowest starting price.

Division 5—Other matters

34 Bid increment percentage

After the application deadline, the ACMA must set a bid increment percentage for each lot as a percentage of the starting price for the lot in the first round, and of the specified price for the lot in any other round.

Note: The auction manager may vary the percentage set under section 34 – see clause 6 of Schedule 1.

35 Withdrawal of application

(1) An applicant may withdraw its application before the application deadline, by giving the ACMA notice in writing. (2) If an applicant who withdraws its application under subsection (1), or who is taken to have withdrawn its application under another section of this instrument, has paid a deposit under section 29 or in accordance with section 33, the ACMA must refund the deposit in accordance with subsection 64(4). (3) Subsection (2) is subject to sections 81 and 84. (4) An applicant may not withdraw its application after the application deadline. (5) An applicant must not be re-admitted to the allocation process after withdrawing its application.

22 Simplified outline of this Part

This Part deals with the procedures to be undertaken before conducting the auction or allocating spectrum licences for a pre-determined price.

The ACMA must make decisions in relation to the allocation process, including setting deadlines by which persons wishing to participate in the allocation process must give the ACMA completed forms and information. The ACMA must also advertise the auction and prepare an applicant information package.

Persons wishing to participate in the allocation process must complete forms, deeds and declarations, and give them to the ACMA by the relevant deadlines. Some of the forms and declarations will contain information about the associates of the person. The ACMA will use this information to work out whether any applicants are affiliated with each other, or with the holder of a spectrum licence, for the purpose of the 1800 MHz allocation limits. If there are such affiliations, this may have consequences for the applicant’s ability to participate in the allocation process in relation to the 1800 MHz lots.

This Part also requires those applicants who are able to participate in the allocation process to pay a deposit, or provide a deed of financial security, in relation to the lots on which those applicants wish to bid.

Part 4—Procedures before auction or allocation for a pre-determined price

Division 1—Simplified outline

22 Simplified outline of this Part

This Part deals with the procedures to be undertaken before conducting the auction or allocating spectrum licences for a pre-determined price.

The ACMA must make decisions in relation to the allocation process, including setting deadlines by which persons wishing to participate in the allocation process must give the ACMA completed forms and information. The ACMA must also advertise the auction and prepare an applicant information package.

Persons wishing to participate in the allocation process must complete forms, deeds and declarations, and give them to the ACMA by the relevant deadlines. Some of the forms and declarations will contain information about the associates of the person. The ACMA will use this information to work out whether any applicants are affiliated with each other, or with the holder of a spectrum licence, for the purpose of the 1800 MHz allocation limits. If there are such affiliations, this may have consequences for the applicant’s ability to participate in the allocation process in relation to the 1800 MHz lots.

This Part also requires those applicants who are able to participate in the allocation process to pay a deposit, or provide a deed of financial security, in relation to the lots on which those applicants wish to bid.

Division 2—Preliminary

23 Auction manager

The ACMA must, in writing, appoint: (a) a member, within the meaning of the Australian Communications and Media Authority Act 2005; or (b) a member of the ACMA staff; or (c) a person whose services are made available for the purposes of the ACMA under paragraph 55(1)(a) of the Australian Communications and Media Authority Act 2005; to manage the auction.

24 Setting application fee

Before the ACMA publishes a notice inviting applications for the auction, it must, in writing, set the amount of the application fee.

25 Application fee not refundable

An application fee paid under this instrument is not refundable in any circumstances, including if an applicant withdraws or is taken to withdraw from the auction, or is not permitted to make a bid on a lot in the auction.

26 Starting prices

The ACMA must set a starting price for each lot.

Division 3—Advertising the auction

27 Advertising of auction by ACMA

(1) The ACMA must publish on its website a notice that: (a) describes the parts of the spectrum to be auctioned; and (b) gives a brief description of the way the auction will be conducted; and (c) states that the auction will be conducted in accordance with this instrument; and (d) states that the ACMA may conclude that it can allocate a spectrum licence or licences for lots at a pre-determined price without having to conduct an auction; and (e) invites persons to apply to the ACMA to take part in the auction; and (f) states the date and time (the application deadline) before which: (i) completed application forms must be received by the ACMA; and (ii) the application fee must be paid to the ACMA on behalf of the Commonwealth; and (iii) completed preference nomination forms must be received by the ACMA; and (iv) deposits must be paid to the ACMA on behalf of the Commonwealth or deeds of financial security must be given to the ACMA on behalf of the Commonwealth; and (g) states that applications may not be withdrawn after the application deadline; and (h) states that the applicant information package can be obtained from the ACMA’s website at the electronic address given in the notice. (2) If a matter mentioned in the notice changes, the ACMA must publish another notice giving details of the change on its website. (3) The ACMA may publish the information required by subsections (1) and (2) by additional methods, and may publish other information about the auction by any method.

28 Applicant information package

(1) The applicant information package must contain the following documents and information: (a) the 1800 MHz re-allocation declaration; (b) the 2 GHz and 3.4 GHz designation notice; (c) the 2.3 GHz designation notice; (d) the 1800 MHz marketing plan; (e) the 2 GHz marketing plan; (f) the 2.3 GHz marketing plan; (g) the 3.4 GHz marketing plan; (h) this instrument; (i) the 1800 MHz allocation limits direction; (j) a guide to the auction; (k) a statement that the ACMA may offer to allocate spectrum licences for lots for a pre-determined price, including under Schedule 4; (l) an application form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (m) a preference nomination form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (n) the starting price for each lot; (o) a deed of financial security form approved by the ACMA; (p) information about providing a deed of financial security as an alternative to a deposit; (q) a deed of acknowledgment form approved by the ACMA, that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument; (r) a deed of confidentiality form approved by the ACMA, that includes a statement that an applicant (or related person of an applicant) agrees not to disclose confidential information before section 17 ceases to apply to the relevant applicant or the related person; (s) statutory declaration forms for the purposes of this instrument; (t) the amount of the application fee for the auction; (u) the application deadline; (v) the physical address for giving documents to the ACMA; (w) the email address for giving documents to the ACMA; (x) the fax number for giving documents to the ACMA.

Note: An application form approved for paragraph (l) may require an applicant that has nominated a 1800 MHz lot as one of its preferred lots to provide details about the associates of the applicant.

(2) The applicant information package may also contain other information about the allocation process. (3) The applicant information package must be published on the ACMA’s website. (4) If the ACMA makes any change to the contents of the applicant information package after it is published, the ACMA must publish a notice giving details of the change on its website.

Division 4—Application to participate in auction

29 Making an application

(1) A person may apply to become registered as a bidder in the auction by: (a) giving the ACMA a completed application form; and (b) giving the ACMA a deed of acknowledgement; and (c) giving the ACMA a deed of confidentiality executed by the applicant; and (d) giving the ACMA a completed preference nomination form; and (e) paying the application fee; and (f) doing one of the following: (i) paying a deposit of an amount to the ACMA on behalf of the Commonwealth; or (ii) giving the ACMA on behalf of the Commonwealth a deed of financial security, for an amount; or (iii) paying a deposit of part of an amount and giving a deed of financial security for the remainder; and (g) if: (i) the applicant has nominated one or more 1800 MHz lots in its preference nomination form; and (ii) the applicant is not an existing 1800 MHz licensee; giving the ACMA a statutory declaration stating whether the applicant is affiliated with an existing 1800 MHz licensee; before the application deadline.

Note 1: For information on how the application fee must be paid, see section 7.

Note 2: For information on how a deposit is paid, see section 7. For information on how a deed of financial security is given, see section 6 and subsection 33(8).

(2) An applicant may give the ACMA an updated document for paragraphs (1)(a) to (d), or subparagraphs (1)(f)(ii) or (iii), at any time until the application deadline, but not after the deadline. (3) An applicant may give the ACMA an updated document for paragraph (1)(g) at any time. (4) For paragraph (1)(f), amount, in relation to a person, has the meaning given by subsection 33(1).

30 Applicants to notify ACMA if application information incorrect

If an applicant knows that any of the information in the application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.

31 Preferred lots

(1) Subject to this section and sections 32 and 33, an applicant’s preferred lots are the lots nominated as the applicant’s preferred lots in the completed preference nomination form. (2) Subject to this section and sections 32 and 33, an applicant may nominate one or more lots as its preferred lots. (3) An existing 1800 MHz licensee must not nominate a lot, or a combination of lots, if the aggregate of: (a) the lot size of that lot, or of that combination of lots; and (b) the part of the spectrum that the licensee, or the specified group of persons for the 1800 MHz band that includes the licensee, may use in the 1800 MHz band; exceeds the 1800 MHz allocation limits. (4) If an applicant: (a) must not nominate a lot, or a combination of lots, under subsection (3); and (b) purports to nominate that lot, or that combination of lots; the applicant is taken not to have nominated the lot, or the combination of lots, and the ACMA must tell an applicant in writing that it is taken not to have nominated the lot or lots.

32 Procedure if applicant affiliated with existing 1800 MHz licensee

(1) If: (a) in a statutory declaration given under section 29 an applicant (the affiliated applicant) has stated that it is affiliated with an existing 1800 MHz licensee; and (b) the affiliated applicant has nominated, in a preference nomination form, one or more 1800 MHz lots (the nominated lots) as its preferred lots; and (c) the aggregate of: (i) the lot size of one or more of the nominated lots; and (ii) the part or parts of the spectrum that the existing 1800 MHz licensee, or the specified group of persons that includes the affiliated applicant and the existing 1800 MHz licensee, may use in the 1800 MHz band; exceeds the 1800 MHz allocation limits; the ACMA must, in writing, notify the affiliated applicant that: (d) the applicant is affiliated with the existing 1800 MHz licensee; and (e) if the affiliated applicant were to be the winning bidder for one or more 1800 MHz lots, the 1800 MHz allocation limits would be exceeded; and (f) to participate in stage 1 of the auction, in relation to the 1800 MHz lots, the affiliated applicant must give the ACMA a new preference nomination form.

Note: This section applies whether or not the existing 1800 MHz licensee is an applicant.

(2) Within 5 working days of the ACMA notifying the affiliated applicant under subsection (1), the applicant must give the ACMA a new preference nomination form (revised preference nomination form). (3) If an affiliated applicant does not comply with subsection (2), the affiliated applicant is taken not to have nominated any 1800 MHz lots as its preferred lots. (4) If: (a) the affiliated applicant complies with subsection (2); and (b) the aggregate of: (i) the lot size of one or more of the lots nominated by the affiliated applicant in the revised preference nomination form; and (ii) the part or parts of the spectrum that the existing 1800 MHz licensee, or the specified group of persons that includes the affiliated applicant and the existing 1800 MHz licensee, may use in the 1800 MHz band; exceeds the 1800 MHz allocation limits; the affiliated applicant is taken not to have nominated any 1800 MHz lots as its preferred lots. (5) The ACMA must tell an applicant in writing if, under subsection (3) or (4), it is taken not to have nominated any 1800 MHz lots as its preferred lots. (6) Subject to subsections (3) and (4), if an affiliated applicant complies with subsection (2), the applicant’s preferred lots are the lots nominated as the applicant’s preferred lots in the revised preference nomination form.

Note 1: An applicant’s ability to nominate preferred lots in the auction may be restricted as a result of the application of the 1800 MHz allocation limits to the lots to be auctioned under this instrument and the spectrum licences held by existing 1800 MHz licensees.

Note 2: An applicant’s preferred lots may also be affected by section 33.

33 Amount of deposit or deed of financial security required

(1) For the purposes of paragraph 29(1)(f), the amount required, in relation to an applicant, is 10 percent of the sum of the starting prices of each of the applicant’s preferred lots nominated in the preference nomination form.

Note: If an applicant gives the ACMA a revised preference nomination form under section 32, the amount required does not increase or decrease proportionally to any change in the sum of the starting prices of the applicant’s preferred lots.

(2) If an applicant pays a deposit or gives a deed of financial security (or both) for an amount less than the amount under subsection (1), the ACMA must, in writing, notify the applicant that: (a) the applicant has paid a deposit or given a deed of financial security (or both), whichever the case may be, for less than the amount under subsection (1); and (b) the applicant must, before the application deadline or no later than 3 working days after the date of the notice (whichever is the later), pay a deposit or give a deed of financial security (or both) for the remainder of the amount under subsection (1). (3) If the applicant does not comply with the notice given under subsection (2), the applicant’s preferred lots are to be worked out by the ACMA removing from the applicant’s preference nomination form the lot or lots with the lowest starting price until the remaining preferred lots result in an amount under subsection (1) that is equal to, or less than, the deposit paid or the deed of financial security given (or both).

Note 1: The removal of lots is not specific or confined to a single band. If an applicant has nominated lots in multiple bands, the lot with the lowest starting price will be the first removed under this subsection, regardless of the band the lot is in.

Note 2: See subsection (13) for dealing with lots with the same starting price.

(4) If, after the ACMA removes lots from an applicant’s preference nomination form in accordance with subsection (3), no lots remain, the applicant is taken to have withdrawn its application. (5) The ACMA must tell an applicant in writing if: (a) the applicant has had its preferred lots worked out in accordance with subsection (3); or (b) the applicant is taken to have withdrawn its application under subsection (4). (6) A deed of financial security must be executed by an Australian-owned authorised deposit-taking institution (as defined in the Banking Act 1959) which is a bank. (7) If a deed of financial security is executed by a person acting under a power of attorney for a body corporate, the applicant must give the ACMA a copy of the power of attorney with the deed. (8) If a deed of financial security is given to the ACMA by email or fax before the application deadline, the original deed must be received by the ACMA no later than 3 working days after the application deadline (or, if the ACMA agrees to a later time, the agreed time) for the deed to be taken to have been given to the ACMA. (9) An applicant is taken to have withdrawn its application if the ACMA is not satisfied that the person executing a deed of financial security is a person mentioned in subsection (6). (10) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (9). (11) If: (a) the ACMA removes a lot from an applicant’s preference nomination form in accordance with subsection (3); and (b) the applicant has given the ACMA a revised preference nomination form under section 32; and (c) the lot is included in the revised preference nomination form; and (d) the lots nominated in the revised preference nomination form are the applicant’s preferred lots; the lot is taken to be removed from the applicant’s revised preference nomination form. (12) The ACMA must tell an applicant in writing if a lot is taken to be removed from a revised preference nomination form under subsection (11). (13) For the purposes of subsection (3), if: (a) two or more lots in a preference nomination form have the same starting price; (b) no other lot remaining in the preference nomination form has a lower starting price; the ACMA may select any of those lots to be the lot with the lowest starting price.

Division 5—Other matters

34 Bid increment percentage

After the application deadline, the ACMA must set a bid increment percentage for each lot as a percentage of the starting price for the lot in the first round, and of the specified price for the lot in any other round.

Note: The auction manager may vary the percentage set under section 34 – see clause 6 of Schedule 1.

35 Withdrawal of application

(1) An applicant may withdraw its application before the application deadline, by giving the ACMA notice in writing. (2) If an applicant who withdraws its application under subsection (1), or who is taken to have withdrawn its application under another section of this instrument, has paid a deposit under section 29 or in accordance with section 33, the ACMA must refund the deposit in accordance with subsection 64(4). (3) Subsection (2) is subject to sections 81 and 84. (4) An applicant may not withdraw its application after the application deadline. (5) An applicant must not be re-admitted to the allocation process after withdrawing its application.

23 Auction manager

The ACMA must, in writing, appoint: (a) a member, within the meaning of the Australian Communications and Media Authority Act 2005; or (b) a member of the ACMA staff; or (c) a person whose services are made available for the purposes of the ACMA under paragraph 55(1)(a) of the Australian Communications and Media Authority Act 2005; to manage the auction.

24 Setting application fee

Before the ACMA publishes a notice inviting applications for the auction, it must, in writing, set the amount of the application fee.

25 Application fee not refundable

An application fee paid under this instrument is not refundable in any circumstances, including if an applicant withdraws or is taken to withdraw from the auction, or is not permitted to make a bid on a lot in the auction.

26 Starting prices

The ACMA must set a starting price for each lot.

Part 4—Procedures before auction or allocation for a pre-determined price

Division 1—Simplified outline

22 Simplified outline of this Part

This Part deals with the procedures to be undertaken before conducting the auction or allocating spectrum licences for a pre-determined price.

The ACMA must make decisions in relation to the allocation process, including setting deadlines by which persons wishing to participate in the allocation process must give the ACMA completed forms and information. The ACMA must also advertise the auction and prepare an applicant information package.

Persons wishing to participate in the allocation process must complete forms, deeds and declarations, and give them to the ACMA by the relevant deadlines. Some of the forms and declarations will contain information about the associates of the person. The ACMA will use this information to work out whether any applicants are affiliated with each other, or with the holder of a spectrum licence, for the purpose of the 1800 MHz allocation limits. If there are such affiliations, this may have consequences for the applicant’s ability to participate in the allocation process in relation to the 1800 MHz lots.

This Part also requires those applicants who are able to participate in the allocation process to pay a deposit, or provide a deed of financial security, in relation to the lots on which those applicants wish to bid.

Division 2—Preliminary

23 Auction manager

The ACMA must, in writing, appoint: (a) a member, within the meaning of the Australian Communications and Media Authority Act 2005; or (b) a member of the ACMA staff; or (c) a person whose services are made available for the purposes of the ACMA under paragraph 55(1)(a) of the Australian Communications and Media Authority Act 2005; to manage the auction.

24 Setting application fee

Before the ACMA publishes a notice inviting applications for the auction, it must, in writing, set the amount of the application fee.

25 Application fee not refundable

An application fee paid under this instrument is not refundable in any circumstances, including if an applicant withdraws or is taken to withdraw from the auction, or is not permitted to make a bid on a lot in the auction.

26 Starting prices

The ACMA must set a starting price for each lot.

Division 3—Advertising the auction

27 Advertising of auction by ACMA

(1) The ACMA must publish on its website a notice that: (a) describes the parts of the spectrum to be auctioned; and (b) gives a brief description of the way the auction will be conducted; and (c) states that the auction will be conducted in accordance with this instrument; and (d) states that the ACMA may conclude that it can allocate a spectrum licence or licences for lots at a pre-determined price without having to conduct an auction; and (e) invites persons to apply to the ACMA to take part in the auction; and (f) states the date and time (the application deadline) before which: (i) completed application forms must be received by the ACMA; and (ii) the application fee must be paid to the ACMA on behalf of the Commonwealth; and (iii) completed preference nomination forms must be received by the ACMA; and (iv) deposits must be paid to the ACMA on behalf of the Commonwealth or deeds of financial security must be given to the ACMA on behalf of the Commonwealth; and (g) states that applications may not be withdrawn after the application deadline; and (h) states that the applicant information package can be obtained from the ACMA’s website at the electronic address given in the notice. (2) If a matter mentioned in the notice changes, the ACMA must publish another notice giving details of the change on its website. (3) The ACMA may publish the information required by subsections (1) and (2) by additional methods, and may publish other information about the auction by any method.

28 Applicant information package

(1) The applicant information package must contain the following documents and information: (a) the 1800 MHz re-allocation declaration; (b) the 2 GHz and 3.4 GHz designation notice; (c) the 2.3 GHz designation notice; (d) the 1800 MHz marketing plan; (e) the 2 GHz marketing plan; (f) the 2.3 GHz marketing plan; (g) the 3.4 GHz marketing plan; (h) this instrument; (i) the 1800 MHz allocation limits direction; (j) a guide to the auction; (k) a statement that the ACMA may offer to allocate spectrum licences for lots for a pre-determined price, including under Schedule 4; (l) an application form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (m) a preference nomination form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (n) the starting price for each lot; (o) a deed of financial security form approved by the ACMA; (p) information about providing a deed of financial security as an alternative to a deposit; (q) a deed of acknowledgment form approved by the ACMA, that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument; (r) a deed of confidentiality form approved by the ACMA, that includes a statement that an applicant (or related person of an applicant) agrees not to disclose confidential information before section 17 ceases to apply to the relevant applicant or the related person; (s) statutory declaration forms for the purposes of this instrument; (t) the amount of the application fee for the auction; (u) the application deadline; (v) the physical address for giving documents to the ACMA; (w) the email address for giving documents to the ACMA; (x) the fax number for giving documents to the ACMA.

Note: An application form approved for paragraph (l) may require an applicant that has nominated a 1800 MHz lot as one of its preferred lots to provide details about the associates of the applicant.

(2) The applicant information package may also contain other information about the allocation process. (3) The applicant information package must be published on the ACMA’s website. (4) If the ACMA makes any change to the contents of the applicant information package after it is published, the ACMA must publish a notice giving details of the change on its website.

Division 4—Application to participate in auction

29 Making an application

(1) A person may apply to become registered as a bidder in the auction by: (a) giving the ACMA a completed application form; and (b) giving the ACMA a deed of acknowledgement; and (c) giving the ACMA a deed of confidentiality executed by the applicant; and (d) giving the ACMA a completed preference nomination form; and (e) paying the application fee; and (f) doing one of the following: (i) paying a deposit of an amount to the ACMA on behalf of the Commonwealth; or (ii) giving the ACMA on behalf of the Commonwealth a deed of financial security, for an amount; or (iii) paying a deposit of part of an amount and giving a deed of financial security for the remainder; and (g) if: (i) the applicant has nominated one or more 1800 MHz lots in its preference nomination form; and (ii) the applicant is not an existing 1800 MHz licensee; giving the ACMA a statutory declaration stating whether the applicant is affiliated with an existing 1800 MHz licensee; before the application deadline.

Note 1: For information on how the application fee must be paid, see section 7.

Note 2: For information on how a deposit is paid, see section 7. For information on how a deed of financial security is given, see section 6 and subsection 33(8).

(2) An applicant may give the ACMA an updated document for paragraphs (1)(a) to (d), or subparagraphs (1)(f)(ii) or (iii), at any time until the application deadline, but not after the deadline. (3) An applicant may give the ACMA an updated document for paragraph (1)(g) at any time. (4) For paragraph (1)(f), amount, in relation to a person, has the meaning given by subsection 33(1).

30 Applicants to notify ACMA if application information incorrect

If an applicant knows that any of the information in the application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.

31 Preferred lots

(1) Subject to this section and sections 32 and 33, an applicant’s preferred lots are the lots nominated as the applicant’s preferred lots in the completed preference nomination form. (2) Subject to this section and sections 32 and 33, an applicant may nominate one or more lots as its preferred lots. (3) An existing 1800 MHz licensee must not nominate a lot, or a combination of lots, if the aggregate of: (a) the lot size of that lot, or of that combination of lots; and (b) the part of the spectrum that the licensee, or the specified group of persons for the 1800 MHz band that includes the licensee, may use in the 1800 MHz band; exceeds the 1800 MHz allocation limits. (4) If an applicant: (a) must not nominate a lot, or a combination of lots, under subsection (3); and (b) purports to nominate that lot, or that combination of lots; the applicant is taken not to have nominated the lot, or the combination of lots, and the ACMA must tell an applicant in writing that it is taken not to have nominated the lot or lots.

32 Procedure if applicant affiliated with existing 1800 MHz licensee

(1) If: (a) in a statutory declaration given under section 29 an applicant (the affiliated applicant) has stated that it is affiliated with an existing 1800 MHz licensee; and (b) the affiliated applicant has nominated, in a preference nomination form, one or more 1800 MHz lots (the nominated lots) as its preferred lots; and (c) the aggregate of: (i) the lot size of one or more of the nominated lots; and (ii) the part or parts of the spectrum that the existing 1800 MHz licensee, or the specified group of persons that includes the affiliated applicant and the existing 1800 MHz licensee, may use in the 1800 MHz band; exceeds the 1800 MHz allocation limits; the ACMA must, in writing, notify the affiliated applicant that: (d) the applicant is affiliated with the existing 1800 MHz licensee; and (e) if the affiliated applicant were to be the winning bidder for one or more 1800 MHz lots, the 1800 MHz allocation limits would be exceeded; and (f) to participate in stage 1 of the auction, in relation to the 1800 MHz lots, the affiliated applicant must give the ACMA a new preference nomination form.

Note: This section applies whether or not the existing 1800 MHz licensee is an applicant.

(2) Within 5 working days of the ACMA notifying the affiliated applicant under subsection (1), the applicant must give the ACMA a new preference nomination form (revised preference nomination form). (3) If an affiliated applicant does not comply with subsection (2), the affiliated applicant is taken not to have nominated any 1800 MHz lots as its preferred lots. (4) If: (a) the affiliated applicant complies with subsection (2); and (b) the aggregate of: (i) the lot size of one or more of the lots nominated by the affiliated applicant in the revised preference nomination form; and (ii) the part or parts of the spectrum that the existing 1800 MHz licensee, or the specified group of persons that includes the affiliated applicant and the existing 1800 MHz licensee, may use in the 1800 MHz band; exceeds the 1800 MHz allocation limits; the affiliated applicant is taken not to have nominated any 1800 MHz lots as its preferred lots. (5) The ACMA must tell an applicant in writing if, under subsection (3) or (4), it is taken not to have nominated any 1800 MHz lots as its preferred lots. (6) Subject to subsections (3) and (4), if an affiliated applicant complies with subsection (2), the applicant’s preferred lots are the lots nominated as the applicant’s preferred lots in the revised preference nomination form.

Note 1: An applicant’s ability to nominate preferred lots in the auction may be restricted as a result of the application of the 1800 MHz allocation limits to the lots to be auctioned under this instrument and the spectrum licences held by existing 1800 MHz licensees.

Note 2: An applicant’s preferred lots may also be affected by section 33.

33 Amount of deposit or deed of financial security required

(1) For the purposes of paragraph 29(1)(f), the amount required, in relation to an applicant, is 10 percent of the sum of the starting prices of each of the applicant’s preferred lots nominated in the preference nomination form.

Note: If an applicant gives the ACMA a revised preference nomination form under section 32, the amount required does not increase or decrease proportionally to any change in the sum of the starting prices of the applicant’s preferred lots.

(2) If an applicant pays a deposit or gives a deed of financial security (or both) for an amount less than the amount under subsection (1), the ACMA must, in writing, notify the applicant that: (a) the applicant has paid a deposit or given a deed of financial security (or both), whichever the case may be, for less than the amount under subsection (1); and (b) the applicant must, before the application deadline or no later than 3 working days after the date of the notice (whichever is the later), pay a deposit or give a deed of financial security (or both) for the remainder of the amount under subsection (1). (3) If the applicant does not comply with the notice given under subsection (2), the applicant’s preferred lots are to be worked out by the ACMA removing from the applicant’s preference nomination form the lot or lots with the lowest starting price until the remaining preferred lots result in an amount under subsection (1) that is equal to, or less than, the deposit paid or the deed of financial security given (or both).

Note 1: The removal of lots is not specific or confined to a single band. If an applicant has nominated lots in multiple bands, the lot with the lowest starting price will be the first removed under this subsection, regardless of the band the lot is in.

Note 2: See subsection (13) for dealing with lots with the same starting price.

(4) If, after the ACMA removes lots from an applicant’s preference nomination form in accordance with subsection (3), no lots remain, the applicant is taken to have withdrawn its application. (5) The ACMA must tell an applicant in writing if: (a) the applicant has had its preferred lots worked out in accordance with subsection (3); or (b) the applicant is taken to have withdrawn its application under subsection (4). (6) A deed of financial security must be executed by an Australian-owned authorised deposit-taking institution (as defined in the Banking Act 1959) which is a bank. (7) If a deed of financial security is executed by a person acting under a power of attorney for a body corporate, the applicant must give the ACMA a copy of the power of attorney with the deed. (8) If a deed of financial security is given to the ACMA by email or fax before the application deadline, the original deed must be received by the ACMA no later than 3 working days after the application deadline (or, if the ACMA agrees to a later time, the agreed time) for the deed to be taken to have been given to the ACMA. (9) An applicant is taken to have withdrawn its application if the ACMA is not satisfied that the person executing a deed of financial security is a person mentioned in subsection (6). (10) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (9). (11) If: (a) the ACMA removes a lot from an applicant’s preference nomination form in accordance with subsection (3); and (b) the applicant has given the ACMA a revised preference nomination form under section 32; and (c) the lot is included in the revised preference nomination form; and (d) the lots nominated in the revised preference nomination form are the applicant’s preferred lots; the lot is taken to be removed from the applicant’s revised preference nomination form. (12) The ACMA must tell an applicant in writing if a lot is taken to be removed from a revised preference nomination form under subsection (11). (13) For the purposes of subsection (3), if: (a) two or more lots in a preference nomination form have the same starting price; (b) no other lot remaining in the preference nomination form has a lower starting price; the ACMA may select any of those lots to be the lot with the lowest starting price.

Division 5—Other matters

34 Bid increment percentage

After the application deadline, the ACMA must set a bid increment percentage for each lot as a percentage of the starting price for the lot in the first round, and of the specified price for the lot in any other round.

Note: The auction manager may vary the percentage set under section 34 – see clause 6 of Schedule 1.

35 Withdrawal of application

(1) An applicant may withdraw its application before the application deadline, by giving the ACMA notice in writing. (2) If an applicant who withdraws its application under subsection (1), or who is taken to have withdrawn its application under another section of this instrument, has paid a deposit under section 29 or in accordance with section 33, the ACMA must refund the deposit in accordance with subsection 64(4). (3) Subsection (2) is subject to sections 81 and 84. (4) An applicant may not withdraw its application after the application deadline. (5) An applicant must not be re-admitted to the allocation process after withdrawing its application.

27 Advertising of auction by ACMA

(1) The ACMA must publish on its website a notice that: (a) describes the parts of the spectrum to be auctioned; and (b) gives a brief description of the way the auction will be conducted; and (c) states that the auction will be conducted in accordance with this instrument; and (d) states that the ACMA may conclude that it can allocate a spectrum licence or licences for lots at a pre-determined price without having to conduct an auction; and (e) invites persons to apply to the ACMA to take part in the auction; and (f) states the date and time (the application deadline) before which: (i) completed application forms must be received by the ACMA; and (ii) the application fee must be paid to the ACMA on behalf of the Commonwealth; and (iii) completed preference nomination forms must be received by the ACMA; and (iv) deposits must be paid to the ACMA on behalf of the Commonwealth or deeds of financial security must be given to the ACMA on behalf of the Commonwealth; and (g) states that applications may not be withdrawn after the application deadline; and (h) states that the applicant information package can be obtained from the ACMA’s website at the electronic address given in the notice. (2) If a matter mentioned in the notice changes, the ACMA must publish another notice giving details of the change on its website. (3) The ACMA may publish the information required by subsections (1) and (2) by additional methods, and may publish other information about the auction by any method.

28 Applicant information package

(1) The applicant information package must contain the following documents and information: (a) the 1800 MHz re-allocation declaration; (b) the 2 GHz and 3.4 GHz designation notice; (c) the 2.3 GHz designation notice; (d) the 1800 MHz marketing plan; (e) the 2 GHz marketing plan; (f) the 2.3 GHz marketing plan; (g) the 3.4 GHz marketing plan; (h) this instrument; (i) the 1800 MHz allocation limits direction; (j) a guide to the auction; (k) a statement that the ACMA may offer to allocate spectrum licences for lots for a pre-determined price, including under Schedule 4; (l) an application form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (m) a preference nomination form approved by the ACMA, with instructions for completing and giving the form to the ACMA; (n) the starting price for each lot; (o) a deed of financial security form approved by the ACMA; (p) information about providing a deed of financial security as an alternative to a deposit; (q) a deed of acknowledgment form approved by the ACMA, that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument; (r) a deed of confidentiality form approved by the ACMA, that includes a statement that an applicant (or related person of an applicant) agrees not to disclose confidential information before section 17 ceases to apply to the relevant applicant or the related person; (s) statutory declaration forms for the purposes of this instrument; (t) the amount of the application fee for the auction; (u) the application deadline; (v) the physical address for giving documents to the ACMA; (w) the email address for giving documents to the ACMA; (x) the fax number for giving documents to the ACMA.

Note: An application form approved for paragraph (l) may require an applicant that has nominated a 1800 MHz lot as one of its preferred lots to provide details about the associates of the applicant.

(2) The applicant information package may also contain other information about the allocation process. (3) The applicant information package must be published on the ACMA’s website. (4) If the ACMA makes any change to the contents of the applicant information package after it is published, the ACMA must publish a notice giving details of the change on its website.