Turn the raw legal text into a practical explanation grounded in Radiocommunications (Spectrum Licence Allocation – Multi-band Auction) Determination 2017.
This Part deals with the procedures to be undertaken if, for a lot, there is only one applicant that has nominated the lot as one of its preferred lots.
In these circumstances, the ACMA will offer to allocate a spectrum licence for the lot to that applicant. An applicant who accepts the offer must pay the balance of the pre-determined price for the lot (the starting price, less any deposit paid) before the applicant is entitled to be issued the licence.
37 Allocation for a pre-determined price without an auction
(1) If, before the auction manager sets the start date and time for the first and second rounds of the auction under section 56, the ACMA is satisfied that, for a lot, there is only one applicant that has nominated the lot as one of its preferred lots, the ACMA may offer to allocate the spectrum licence for the lot for a pre-determined price, as set out in this Part.
(2) An offer of a spectrum licence is conditional on payment of the pre-determined price.
Note: See sections 40, 41 and 44.
38 ACMA must have regard to applicants’ requirements
In deciding under subsection 37(1) whether it is satisfied that, for a lot, there is only one applicant that has nominated the lot as one of its preferred lots, and in identifying lots for the purposes of that subsection, the ACMA must only have regard to:
(a) each applicant’s preferred lots; and
(b) such other information about an applicant’s preferred lots that the applicant may provide to the ACMA.
Note 1: The 1800 MHz allocation limits may affect the lots an applicant may have included in a licence.
Note 2: The amount of the deposit paid or deed of financial security given (or both) may affect an applicant’s preferred lots.
39 The pre-determined price
(1) The pre-determined price for a spectrum licence is worked out as follows:
(a) identify each lot to be included in the spectrum licence;
(b) add up the starting prices for each of those lots.
Note: The starting price is set by the ACMA under section 26.
(2) The balance of the pre-determined price for a spectrum licence is the pre-determined price less the amount of any deposit paid by the applicant.
40 Offer of spectrum licence – licences for lots other than the 1800 MHz lots
(1) This section applies to each lot other than a 1800 MHz lot.
(2) If the ACMA is satisfied under subsection 37(1) that, for a lot or a combination of lots, there is only one applicant that has nominated the lot, or each of the lots in the combination, as one of its preferred lots, the ACMA may offer the applicant a spectrum licence for that lots or those lots.
(3) The ACMA must send the applicant, by registered mail:
(a) a draft of the spectrum licence; and
(b) a notice stating:
(i) that the applicant is offered a spectrum licence for the lots to be included in that licence; and
(ii) the amount of the pre-determined price for the licence offered to the applicant; and
(iii) the amount of any deposit paid by the applicant and held by the ACMA on behalf of the Commonwealth; and
(iv) the balance of the pre-determined price.
(4) An applicant may accept the ACMA’s offer by notifying the ACMA in writing within 10 working days of receiving the offer and agreeing, in writing, to pay the balance of the pre-determined price for the spectrum licence in accordance with section 44.
(5) If an applicant accepts the offer of the spectrum licence and agrees to pay the balance of the pre-determined price for the spectrum licence in accordance with section 44, the applicant is entitled to be issued the spectrum licence offered to it on payment of the balance of the pre-determined price in accordance with section 44.
Section Part 5 - Radiocommunications (Spectrum Licence Allocation – Multi-band Auction) Determination 2017 - Allocation for a pre-determined price | Zoe
Note 1: If an applicant does not accept the offer of a spectrum licence, section 45 applies.
Note 2: For the issue of spectrum licences, see section 62 of the Act.
41 Offer of spectrum licence – licences for 1800 MHz lots
(1) This section applies to each 1800 MHz lot.
(2) If the ACMA is satisfied under subsection 37(1) that, for a lot or a combination of lots, there is only one applicant that has nominated the lot, or each of the lots in the combination, as one of its preferred lots, the ACMA may offer the applicant a spectrum licence for that lots or those lots.
(3) Before the ACMA offers the applicant a spectrum licence for the lots to be included in that licence, the ACMA must, by written notice given to the applicant:
(a) state the identity of each other applicant that has been, or will be, given a notice under this subsection and the associates of those applicants;
(b) request the following details about each associate of the applicant:
(i) the associate’s name;
(ii) the associate’s ABN, ACN and ARBN, if any;
(iii) the associate’s address or registered office; and
(iv) the nature of the associate’s association with the applicant;
(c) request that the applicant give the ACMA a statement whether the applicant is an affiliate of:
(i) an existing 1800 MHz licensee and, if so, identifying the existing 1800 MHz licensee and giving details of the affiliation; or
(ii) another applicant that has been or will be, given a notice under this subsection and, if so, identifying the other applicant and giving details of the affiliation.
Note 1: Giving false or misleading information is a serious offence under section 137.1 of the Criminal Code.
Note 2: Section 136.1 of the Criminal Code also makes it an offence to make a false or misleading statement in connection with an application for a spectrum licence.
(4) If:
(a) an applicant receives a notice under subsection (3); and
(b) the applicant does not:
(i) give the ACMA the details requested in accordance with paragraph (3)(b); or
(ii) give the ACMA the statement requested in accordance with paragraph (3)(c);
within 5 working days, or such longer time as determined by the ACMA, of receiving the notice;
the ACMA must not offer a spectrum licence to the applicant under this section.
Note: This subsection does not affect the ability of the applicant to participate in an auction.
(5) If:
(a) an applicant receives a notice under subsection (3); and
(b) subsection (4) does not apply in relation to the applicant; and
(c) the ACMA is satisfied that the aggregate of:
(i) the lot size of the lots, to be included in the spectrum licence mentioned in subsection (2); and
(ii) the part or parts of the spectrum that the applicant, or the specified group of persons that includes the applicant, may use in the 1800 MHz band;
does not exceed the 1800 MHz allocation limits;
the ACMA must send the applicant, by registered mail:
(d) a draft of the spectrum licence; and
(e) a notice stating:
(i) that the applicant is offered a spectrum licence for the lots to be included in that licence; and
(ii) the amount of the pre-determined price for the licence offered to the applicant; and
(iii) the amount of any deposit paid by the applicant and held by the ACMA on behalf of the Commonwealth; and
(iv) the balance of the pre-determined price.
(6) An applicant may accept the ACMA’s offer by notifying the ACMA in writing within 10 working days of receiving the offer and agreeing, in writing, to pay the balance of the pre-determined price for the spectrum licence in accordance with section 44.
(7) If an applicant accepts the offer of the spectrum licence and agrees to pay the balance of the pre-determined price for the spectrum licence in accordance with section 44, the applicant is entitled to be issued the spectrum licence offered to it on payment of the balance of the pre-determined price in accordance with section 44.
Note 1: If an applicant does not accept the offer of a spectrum licence, section 45 applies.
Note 2: For the issue of spectrum licences, see section 62 of the Act.
42 Offer of reduced spectrum licence – licences for 1800 MHz lots
(1) This section applies in relation to an applicant if:
(a) the applicant receives a notice under subsection 41(3); and
(b) subsection 41(4) does not apply in relation to the applicant; and
(c) subsection 41(5) does not apply to the applicant.
Note: If an applicant is the only applicant that nominated a combination of 1800 MHz lots as its preferred lots, but issuing a spectrum licence for some or all of those lots to the applicant would exceed the 1800 MHz allocation limits, this section applies to the applicant.
(2) The ACMA must identify, in relation to the combination of 1800 MHz lots mentioned in subsection 41(2) for the applicant (the total lots), each lot where the aggregate of:
(a) the lot size of the lot; and
(b) the part or parts of the spectrum that the applicant, or the specified group of persons that includes the applicant, may use in the 1800 MHz band;
does not exceed the 1800 MHz allocation limits.
(3) If no total lot can be identified under subsection (2), section 43 applies in relation to the applicant.
(4) If the ACMA identifies one or more total lots under subsection (2), the ACMA must send the applicant, by registered mail:
(a) a draft spectrum licence for those lots; and
(b) a notice stating:
(i) that the applicant is offered a spectrum licence for the lots to be included in that licence; and
(ii) the amount of the pre-determined price for the licence offered to the applicant; and
(iii) the amount of any deposit paid by the applicant and held by the ACMA on behalf of the Commonwealth; and
(iv) the balance of the pre-determined price.
(5) An applicant may accept the ACMA’s offer by notifying the ACMA in writing within 10 working days of receiving the offer and agreeing, in writing, to pay the balance of the pre-determined price for the spectrum licence in accordance with section 44.
(6) If an applicant accepts the offer of the spectrum licence and agrees to pay the balance of the pre-determined price for the spectrum licence in accordance with section 44, the applicant is entitled to be issued the spectrum licence offered to it on payment of the balance of the pre-determined price in accordance with section 44.
Note 1: If an applicant does not accept the offer of a spectrum licence, section 45 applies.
Note 2: For the issue of spectrum licences, see section 62 of the Act.
(7) Section 76 applies to a total lot that is not identified under subsection (2).
43 No offer of a spectrum licence – licences for 1800 MHz lots
If this section applies in relation to an applicant:
(a) the ACMA must notify the applicant, in writing, that if the applicant were to be issued a spectrum licence for any of the 1800 MHz lots it has nominated as its preferred lots, the 1800 MHz allocation limits would be exceeded; and
(b) the ACMA must not offer the applicant a spectrum licence for one or more 1800 MHz lots under this Part; and
(c) the allocation of spectrum licences to other applicants under this instrument is not affected.
44 Payment of the balance of the pre-determined price
(1) If an applicant accepts the offer of a spectrum licence and agrees to pay the balance of the pre-determined price for the licence, the ACMA must notify the applicant by registered mail that the ACMA has received the applicant’s acceptance.
(2) The balance of the pre-determined price for a spectrum licence is payable no later than 10 working days after the date the applicant is notified under subsection (1).
Note: For information on how the balance of the pre-determined price is paid, see section 7.
45 Allocation if offer refused
If an applicant does not accept, in accordance with subsection 40(4), subsection 41(6) or subsection 42(5), section 76 applies to a lot that would have been included in the spectrum licence.
46 Default
If an applicant:
(a) accepts the offer of a spectrum licence and agrees to pay the balance of the pre-determined price for the licence in accordance with subsection 40(4), subsection 41(6) or subsection 42(5); and
(b) does not pay the balance of the pre-determined price for the licence in accordance with section 44;
then:
(c) the spectrum licence is not allocated to the applicant; and
(d) the allocation of spectrum licences under this instrument to other applicants is not affected; and
(e) section 76 applies to each lot that, but for this section, would have been included in a spectrum licence allocated to the applicant.
Note: See section 86, in relation to the rights of the ACMA and the Commonwealth.
47 Publication of results
The ACMA must announce or publish the following information about the allocation process after the ACMA has notified all relevant applicants under subsection 44(1):
(a) the names of the persons to whom spectrum licences are to be issued;
(b) the spectrum allocated to each person;
(c) the pre-determined price for each spectrum licence to be issued to each person.