Part 1Preliminary

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.