Section Part 4 - Radiocommunications (Spectrum Licence Allocation – Multi-band Auction) Determination 2017 - Procedures before auction or allocation for a pre-determined price | Zoe
Part 4Procedures before auction or allocation for a pre-determined price
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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.