Radiocommunications (Spectrum Licence Allocation - Open Outcry Auction) Determination 1998

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Commonwealth of Australia

Radiocommunications Act 1992

Radiocommunications (Spectrum Licence Allocation—Open Outcry Auction)

Determination 1998

CONTENTS

Clause Page

PART 1—PRELIMINARY

1. Name of Determination 2

2. Commencement 2

3. Definitions 2

4. Application of the Determination 3

PART 2—PREPARING FOR THE AUCTION

5. Entry fee and financial security amount 4

6. Publication of notice by ACA 4

7. Applicant Information Package 5

8. Approval of forms and notices 5

9. Payments of monies due to ACA 6

PART 3—REGISTRATION OF APPLICANTS

10. Applications 7

11. Lodging of applications 8

12. Eligibility to bid 8

13. Deed of Financial Security or performance bond 9

14. Failure to lodge Deed of Financial Security or performance bond 9

15. Performance bond 10

15A. Forfeiture and refund of secured monies 10

16. Register of applicants 11

17. Registration of applicants 11

18. Lodgment of Form of Authority in special circumstances 12

19. Distribution of Bidder Identification Forms 13

20. Reserve Prices 13

PART 4—CONDUCT OF THE ALLOCATION SYSTEM

21. Appointment of bid co-ordinator 13

22. Holding an allocation 13

23. Registration of bidders by ACA 13

24. Bidding for a licence 14

25. Meeting with ACA and tender of deposit 15

26. Applicant not entitled to a lot if deposit not paid 16

27. Allocation of licence to nominated applicant 16

PART 5—CONSEQUENCES OF DEFAULT

28. Liability for failure to comply with requirements of this Determination 16

29. Lots offered at auction but not sold 17

PART 6LIMITS ON ALLOCATION OF SPECTRUM

Division 1—Preliminary

30. Definitions 18

31. Purpose of Part 19

Division 2—The allocation limits

32. Imposition of allocation limits 20

Division 3—Matters relevant to considering whether persons associated

33. Matters relevant to considering whether persons associated 20

Division 4—Procedures before auction

34. ACA to send applications to ACCC 20

35. Information to be provided 20

Division 5—Procedures after auction

36. Nominated applicants to make statutory declarations 21

37. Exclusion of nominated applicant because of failure to make statutory declaration 21

38. Designation of associate group after auction 22

39. Consequences of designation of associate group 22

40. Liability for balance of bid price 23

41. Consequences of reallocation of excess lots 23

Division 6—General

42. Review 24

PART 7—MISCELLANEOUS

43. ACA’s liability under the allocation system 24

44. Information provided by applicant 24

45. Recovery of damages by ACA 24

46. Giving of information by ACA 25

Commonwealth of Australia

Radiocommunications Act 1992

Radiocommunications (Spectrum Licence Allocation—Open Outcry Auction)

Determination 1998

The Australian Communications Authority, under section 60 of the Radiocommunications Act 1992, determines the following procedures to be applied in allocating spectrum licences by auction.

Dated 31 July 1998.

A.J SHAW

Chairman

G.S.G GRAINGER Associate Member

Australian Communications Authority

PART 1—PRELIMINARY

Name of Determination

1. This Determination is the Radiocommunications (Spectrum Licence Allocation—Open Outcry Auction) Determination 1998.

Commencement

2. This Determination commences on 31 July 1998.

Definitions

3. (1) In this Determination:

allocation limits means the limits on aggregate parts of spectrum for which licences may be allocated to particular applicants under this Determination.

applicant means a person who applies to take part in an auction for the allocation of part of the spectrum by lot under this Determination.

auction centre means the auction centre located at the Canberra office of the ACA.

balance of bid price means the total of all the highest bids made at the auction for successful lots by the nominated applicant, less the total of all deposits (if any) given for those lots.

bank cheque means a bank cheque issued by a bank licensed to operate in Australia.

bid co-ordinator means a person appointed under clause 21.

Bidder Identification Form means the document approved by the ACA under paragraph 8 (1) (d).

Bidder’s Acknowledgment means the document approved by the ACA under paragraph 8 (1) (e).

bid price means the amount bid by or on behalf of a nominated applicant for the purposes of subclause 24 (4).

class of lot means a group of lots of the same kind, each lot being:

(a) a metropolitan lot; or

(b) a regional lot; or

closing date means the day advertised as the last day on which a person may give the ACA an application form in the notice published by the ACA under clause 6.

company means:

(a) a company within the meaning of the Corporations Law; or

(b) a foreign corporation within the meaning of the Commonwealth Constitution.

Deed of Acknowledgment means the document approved by the ACA under paragraph 8 (1) (b).

Deed of Financial Security means the document approved by the ACA under subclause 8 (2).

entry fee means a non-refundable amount set under paragraph 5 (a).

financial security amount means the amount required by a Deed of Financial Security or a performance bond for the class or classes of lot for which the applicant nominates to bid.

Form of Authority means the document approved by the ACA under paragraph 8 (1) (c).

lot means a lot, as defined in the Marketing Plan, being part of the spectrum for allocation by auction in accordance with this Determination..

Marketing Plan, in relation to the auction of part of the spectrum, means the Marketing Plan prepared by the ACA for issuing spectrum licences for that part of the spectrum.

metropolitan lot means a lot that is in a “Metropolitan area” as defined in the Marketing Plan.

outback lot means a lot that is in an “Outback area” as defined in the Marketing Plan.

performance bond means security lodged with the ACA under clause 15.

nominated applicant means an applicant referred to in subclause 24 (4).

regional lot means a lot that is in a “Regional area” as defined in the Marketing Plan.

registered applicant means an applicant who is registered under clause 17.

registered bidder means an individual who is registered under clause 23.

reserve price, in relation to a licence, means the price set for the licence by the ACA under clause 20.

the Act means the Radiocommunications Act 1992.

Note A number of expressions used in this Determination are defined in the Act:

ACA	frequency band
ACCC	spectrum
Marketing Plan	spectrum licence

(2) A note used in this Determination does not form part of the Determination.

Application of the Determination

4. This Determination applies to the allocation of lots for which the ACA may allocate spectrum licences subject to the allocation limits in Part 6.

PART 2—PREPARING FOR THE AUCTION

Entry fee and financial security amount

5. Before the ACA publishes a notice inviting applications for an auction, it must, by writing, set:

(a) the amount of the entry fee for participating in the auction; and

(b) the financial security amount for:

(i) the metropolitan lots for auction; and

(ii) the regional lots for auction; and

(iii) the outback lots for auction; and

Note For paragraph (b), this would be the value of the Deed of Financial Security or performance bond to be provided based on the class or classes of lot the applicant nominates to bid on.

Publication of notice by ACA

6. (1) Before holding an auction, the ACA must publish a notice in a newspaper circulating nationally in Australia:

(a) describing the parts of the spectrum to be auctioned; and

(b) giving a brief description of the way the auction will be conducted; and

(d) stating the closing date and time for applications; and

(e) stating that lots will be auctioned in accordance with this Determination; and

(f) stating that further information (the Applicant Information Package) can be obtained from the ACA at the address given in the notice.

(2) If there is a change in a matter mentioned in the notice, the ACA must publish another notice giving details of the change in a newspaper circulating nationally in Australia.

(3) The ACA may publish other information about auctions and may publish that information, and the notices mentioned in subclauses (1) and (2), in other ways.

Applicant Information Package

7. (1) The Applicant Information Package must contain the following information and documents:

(a) if a part of the spectrum to be auctioned was the subject of a notice by the Minister under section 36 of the Act designating the relevant part that has not previously been allocated—the notice;

(b) if a part of the spectrum to be auctioned was the subject of a spectrum re-allocation declaration by the Minister under section 153B of the Act—the declaration;

(d) the Marketing Plan;

(e) this Determination;

(f) the application form, with instructions for completing and lodging the form;

(g) the Deed of Financial Security;

(h) information about the performance bond as an alternative to providing a Deed of Financial Security;

(i) the Deed of Acknowledgment;

(j) the Form of Authority;

(k) the amount of the entry fee for the auction set by the ACA under paragraph 5 (a);

(l) the financial security amounts for different classes of lot set by the ACA under paragraph 5 (b);

(m) any allocation limits imposed on the amount of spectrum that can be used by a person or group of persons as a result of the allocation;

(n) the closing time and date for applications;

(o) the address of the auction centre;

(p) the fax numbers of the auction centre and the Receiver of Public Monies for payment of monies made by electronic funds transfer.

Note The Minister may direct the ACA to limit the amount of spectrum that can be used in certain circumstances: see subsection 60 (10) of the Act and Part 6 of this Determination.

(2) The Applicant Information Package may also contain other information about the auction.

Approval of forms and notices

8. (1) The ACA must, in writing, approve the following documents:

(a) an application form for paragraph 10 (2) (a);

(b) a Deed of Acknowledgment for paragraph 10 (2) (c);

(d) a Bidder Identification Form for clause 19;

(e) a Bidder’s Acknowledgment for clause 23.

(2) The ACA must, in writing, approve the form of a Deed of Financial Security which must include a statement to the effect that the person giving the Deed will, on demand, pay to the ACA the financial security amount set out in the Deed.

Note Subclause 13 (4) mentions who may give the Deed of Financial Security.

Payments of monies due to ACA

9. (1) All payments to the ACA must be made in Australian currency.

(2) Payment of monies for an entry fee and for a performance bond (if tendered as an alternative to a Deed of Financial Security) to the ACA must be made in full:

(a) by a single bank cheque; or

(b) by telegraphic transfer; or

(3) A nominated applicant must pay the balance of bid price to the ACA for all lots for which the applicant is the nominated applicant within 15 working days after the end of the auction.

(4) Payment of the balance of the bid price must be made in full:

(a) by a single bank cheque lodged at:

(i) the auction centre; or

(ii) the Sydney Area Office of the ACA; or

(iii) the Melbourne Area Office of the ACA; or

(b) by telegraphic transfer; or

(5) If a payment is made by electronic funds transfer, the applicant must notify the auction centre and the Receiver of Public Monies by fax of the proposed payment before making the transfer.

Note See paragraph 7 (1) (p) for notification of relevant fax numbers.

(6) A payment by electronic funds transfer is not effective unless the funds have been paid into the ACA’s bank account by the due date in accordance with this Determination.

(7) For subclause (5), each notification must include the following details:

(a) the name and address of the applicant;

(b) if the applicant is an Australian registered company—the ACN or ARBN of the applicant;

(d) the name, address, telephone and fax numbers of the contact person regarding the funds transfer;

(e) the amount of the payment being transferred in Australian currency;

(f) the purpose for which the payment is being made.

Note ACN and ARBN are the relevant registration numbers for a company or body under the Corporations Law.

(8) A payment by electronic funds transfer must be paid into the ACA’s bank account, details of which are as follows:

(a) Bank—Reserve Bank of Australia;

(b) Branch—Canberra City;

(d) Account number—92276-5;

(e) Account name—Australian Communications Authority Clearing Account.

PART 3—REGISTRATION OF APPLICANTS

Applications

10. (1) A person who wants to obtain a spectrum licence under this Determination must apply to the ACA for registration.

(2) The person must give the ACA the following documents (the application documents):

(a) a completed application form; and

(b) a completed Deed of Financial Security, if required under clause 13, or notification in writing that the person has lodged a performance bond; and

(d) a completed Form of Authority.

(3) The application documents must be accompanied by the entry fee and performance bond (if applicable) if not already paid into the ACA’s bank account.

Note A payment by electronic funds transfer for an entry fee and a performance bond (if applicable) must have been credited to the ACA’s bank account by the time the application documents are lodged.

Lodging of applications

11. (1) The application documents, entry fee and performance bond (tendered by the applicant as an alternative to a Deed of Financial Security), if paid by bank cheque, must be lodged with the ACA at the auction centre by the closing time on the advertised closing date.

(2) As soon as practicable after receiving the application documents, the ACA must confirm receipt by fax or by letter (if the ACA does not know the applicant’s fax number) noting particulars of the applicant’s name, address, ACN or ARBN and the class or classes of lot for which the applicant will be able to bid.

(3) If the applicant wishes to change any of the details in subclause (2), the applicant must give written notice to the ACA, accompanied by a further Deed of Financial Security and a Deed of Acknowledgment, if required, within 5 working days of the date of receiving confirmation from the ACA.

Eligibility to bid

12. (1) When completing the application form, an applicant must nominate the class of lot the applicant wishes to bid on.

(2) The applicant can nominate to bid on one of the following classes of lot:

(a) metropolitan lots; or

(b) regional lots; or

(3) An applicant who nominates to bid on metropolitan lots may also bid on regional and outback lots even though the applicant has not nominated to bid for those classes of lots.

(4) An applicant who nominates to bid on regional lots:

(a) may also bid on outback lots even though the applicant has not nominated to bid for that class of lot; and

(b) cannot bid on metropolitan lots.

(5) An applicant who nominates to bid for outback lots cannot bid on regional lots or metropolitan lots.

(6) During the auction process, an applicant cannot bid for lots of a class having a higher financial security amount than the class or classes of lot nominated by the applicant on the application form.

Example An applicant cannot nominate to bid for “regional lots” and then seek to bid on the “metropolitan lots” during the auction.

Deed of Financial Security or performance bond

13. (1) A person who wishes to be registered as an applicant must give the ACA a Deed of Financial Security or a performance bond unless:

(a) the applicant satisfies the ACA that it is an authority of the Commonwealth, a State or a Territory; or

(b) the applicant satisfies the ACA that it is a subsidiary, within the meaning of the Corporations Law, of an authority of the Commonwealth, a State or a Territory; or

(2) If a company (other than a company which is incorporated outside of Australia) satisfies the ACA that it does not carry on business for profit, the ACA:

(a) may decide that the company need not give the ACA a Deed of Financial Security or a performance bond; and

(b) must notify the company in writing of the decision as soon as practicable after making the decision.

(3) The financial security amount of the Deed of Financial Security or performance bond required is the amount set:

(a) if the applicant nominated for metropolitan lots—under subparagraph 5 (b) (i); or

(b) if the applicant nominated for regional lots—under subparagraph 5 (b) (ii); or

(4) A Deed of Financial Security must be made by:

(a) a bank licensed to operate in Australia; or

(b) a person authorised to carry on business in Australia as an insurer under the Insurance Act 1973; or

(5) For this clause, a company makes a Deed of Financial Security by:

(a) affixing the corporation’s common or official seal to the Deed in accordance with the corporation’s constitution; or

(b) a person signing the Deed under a power of attorney given by the corporation and registered in a State or Territory.

Failure to lodge Deed of Financial Security or performance bond

14. (1) This clause applies if:

(a) an applicant who is required to lodge a Deed of Financial Security or performance bond does not comply with subclauses 10 (2) and (3); or

(b) the ACA is not satisfied that the person who made the Deed of Financial Security is a person who complies with subclause 13 (4) or (5).

(2) The applicant’s registration is of no effect.

(3) The applicant is excluded from taking part (or any further part) in the auction and from obtaining a spectrum licence.

Performance bond

15. (1) This clause applies if an applicant gives the ACA a performance bond instead of a Deed of Financial Security.

(2) The amount of a performance bond is equal to the financial security amount required for a Deed of Financial Security and is payable to the ACA as provided by clause 9.

Forfeiture and refund of secured monies

15A. (1) In the event of any undischarged obligation owed by the applicant to the ACA for the matters mentioned in subclause (2), monies will be forfeited to the ACA that:

(a) are secured by the performance bond; or

(b) are secured by the Deed of Financial Security; or

(2) For subclause (1), the matters include:

(a) any act or omission by the applicant, its officers, employees, agents, volunteers, subcontractors or associates in connection with the applicant’s participation in an allocation process conducted under this Determination; or

(b) any breach or default by the applicant of its obligations or warranties under the Deed of Acknowledgment, this Determination, or both.

(3) Following the allocation process conducted under this Determination, the ACA must, in the case of an unsuccessful applicant, refund the performance bond or any monies paid to the ACA under subclause (1).

16. (1) The ACA must maintain a register of applicants.

Note The register may be in electronic form.

(2) For each applicant, the register must contain details of:

(a) the name and address of the applicant; and

(b) the applicant’s telephone and fax numbers; and

(d) if the applicant is a company or a registrable body—the applicant’s ACN or ARBN.

(3) The register may also contain any other information that the ACA considers necessary for the running of the auction.

(4) The ACA must make the changes to the register that the ACA considers necessary or convenient as soon as practicable after:

(a) an applicant tells the ACA of any change of name, address, or telephone or fax numbers; or

(b) the ACA becomes aware that any information on the register is not correct.

Registration of applicants

17. (1) The ACA must register an applicant only if:

(a) the applicant has:

(i) lodged completed application documents; and

(ii) paid the entry fee in accordance with clause 9; and

(b) if a Deed of Financial Security is required—the ACA is satisfied that the person who made the Deed is a person who complies with subclause 13 (4) and (5); and

(c) if a performance bond is given instead of a Deed of Financial Security—the ACA is satisfied that the bond meets the ACA’s requirements for the purposes of this Determination.

(2) At least 5 working days before the start of the auction, the ACA must, in writing, tell each registered applicant:

(a) that the applicant has been registered; and

(b) the class or classes of lot for which the applicant can bid; and

(d) the place of the auction;

(e) the amount of the reserve price for each lot set under clause 20.

(3) The ACA:

(a) may change the details of information mentioned in subclause (2); and

(b) if any change is made—must tell all registered applicants of the change, in writing, as soon as practicable after making the change.

(4) For subclause (2), if the ACA wishes to change the day on which the auction commences, the ACA must not change the day to a day earlier than the day notified to registered applicants under paragraph (2) (c).

Lodgment of Form of Authority in special circumstances

18. (1) This clause applies if:

(a) a registered applicant wishes to have an individual represent the applicant at an auction; and

(b) the individual is not a person for whom the applicant has given the ACA a Form of Authority under paragraph 10 (2) (d).

(2) The applicant must:

(a) give the ACA a completed and legible Form of Authority for the individual no later than 4 pm Australian Eastern Standard Time 2 business days before the auction; and

(b) if the applicant is an individual—sign the form; and

(d) if the applicant is not an individual or a company—duly execute the form; and

(e) if applicants jointly apply—sign or otherwise duly execute the form as joint applicants; and

(f) include with the Form of Authority the reason, in writing, for not having given the ACA a Form of Authority for the individual in accordance with paragraph 10 (2) (d).

(3) The ACA must accept the Form of Authority if it is satisfied that it was not given to the ACA in accordance with paragraph 10 (2) (d) because of special circumstances.

(4) For the avoidance of doubt, a Form of Authority given to the ACA by a registered applicant must have on it the applicant’s original signature or other means of execution.

Distribution of Bidder Identification Forms

19. (1) If a registered applicant is an individual, the ACA must make available to the applicant:

(a) a Bidder Identification Form for the applicant; and

(b) a Bidder Identification Form for each individual (if any) for whom the applicant provided a Form of Authority.

(2) If a registered applicant is not an individual, the ACA must make available to the applicant a Bidder Identification Form for each individual for whom the applicant provided a Form of Authority.

(3) The ACA may, at any time, replace a Bidder Identification Form that it has issued if it is satisfied that the form issued has been lost, destroyed or cannot reasonably be made available to the ACA.

Reserve Prices

20. After the closing date for applications, the ACA must set the reserve price for each lot put up for auction.

PART 4—CONDUCT OF THE ALLOCATION SYSTEM

Appointment of bid co-ordinator

21. The ACA must appoint 1 or more persons to conduct an auction for the allocation of lots.

Holding an allocation

22. The ACA must hold an auction for allocation of lots as indicated to each registered applicant in accordance with this Determination.

Registration of bidders by ACA

23. (1) If an individual for whom the ACA has issued a Bidder Identification Form wishes to bid in the auction, the individual must register as a bidder in relation to a class or classes of lot.

Note Under subclause 24 (1), a bid for a lot may only be made by a registered bidder.

(2) The individual must register:

(a) in the period of 1 hour that ends 30 minutes before bids are expected to be invited for the first lot on the first day of the auction period; or

(b) if the ACA extends that period—before the end of the period set by the ACA.

(3) When registering, the individual must:

(a) either:

(i) show the ACA the Bidder Identification Form issued for the individual; or

(ii) satisfy the ACA that the Bidder Identification Form issued for the individual has been lost, destroyed or cannot reasonably be made available to the ACA; and

(b) show the ACA the evidence of the individual’s identity referred to in the Bidder Identification Form; and

Note Under subclause 19 (3), the ACA may, at any time, replace a Bidder Identification Form that it has issued if it is satisfied that the form it issued has been lost, destroyed or cannot reasonably be made available to the ACA.

(4) If the individual signs a Bidder’s Acknowledgment and has not otherwise complied with subclause (3), the Bidder’s Acknowledgment is of no effect.

(5) On registering an individual as a bidder, the ACA must give each registered bidder:

(a) a bidder’s paddle in relation to the class or classes of lot for which the bidder is registered to bid; or

(b) if the bidder is registered in relation to more than 1 class of lot—a different bidder’s paddle for use for each class of lots.

(6) If an individual shows the ACA more than 1 Bidder Identification Form issued for the individual, or satisfies the ACA that the ACA has issued more than 1 Bidder Identification Form for the individual, the ACA must:

(a) register the individual separately for each Bidder Identification Form; and

(b) give the individual a different bidder’s paddle for each Bidder Identification Form for each class of lot for which the applicant is registered to bid.

Bidding for a licence

24. (1) Only a registered bidder may bid for a lot.

(2) The bid co-ordinator will:

(a) invite bids for 1 lot at a time; and

(b) identify the registered bidder who makes the highest bid for the lot.

(3) In the event of a disputed bid:

(a) the bid co-ordinator is the sole arbiter; and

(b) the bid co-ordinator’s decision is final.

(4) If the highest bid made for a lot is at least equal to the reserve price for the lot, the registered applicant by whom, or on whose behalf, the highest bid is made is the nominated applicant (the nominated applicant) for the lot.

(5) If an unregistered bidder bids for a lot, the making of the bid does not, by itself, affect the validity of:

(a) the identification of the registered bidder who makes the highest bid for the lot; or

(b) the allocation of the lot.

(6) The bid co-ordinator may refuse any bid that, if it were accepted and if it were the highest bid, would result in the allocation limits being exceeded.

Meeting with ACA and tender of deposit

25. (1) Immediately after an applicant is identified as the nominated applicant for a lot:

(a) if the nominated applicant is a registered bidder—the nominated applicant must meet with the ACA; or

(b) if the nominated applicant is not a registered bidder—a registered bidder who has signed a Bidder’s Acknowledgment in relation to the nominated applicant must meet with the ACA.

(2) The person who meets with the ACA must, as directed by the ACA:

(a) identify himself or herself by:

(i) showing the ACA the correct Bidder Identification Form; or

(ii) showing the ACA the correct bidder’s paddle; or

(iii) verifying the bidder’s name and signature as they appear on the relevant Bidder’s Acknowledgment; and

(b) tender a deposit of 10% of the amount of the bid price in full by a single payment consisting of cash, or a personal or company cheque, or a combination of those modes of payment.

Note Subclause 9 (1) provides that all payments must be made in Australian currency.

(3) The person who meets with the ACA must not pay an amount of cash that is equal to or greater than the amount referred to in the definition of “significant cash transaction” in subsection 4 (1) of the Financial Transaction Reports Act 1988.

Note At 1 July 1998, the amount was $10,000.

Applicant not entitled to a lot if deposit not paid

26. If the nominated applicant does not pay the deposit in accordance with paragraph 25 (2) (b) for a lot:

(a) the applicant is not entitled to be allocated the lot that was bid for; and

(b) the lot may be re-offered at the auction by the bid co-ordinator; and

(d) the allocation of lots under this Determination to other applicants is not affected.

Allocation of licence to nominated applicant

27. The nominated applicant is entitled to be allocated a spectrum licence that includes a lot if:

(a) the applicant pays the balance of the bid price for all lots for which the applicant was the nominated applicant in accordance with subclause 9 (3); and

(b) allocation of the licence will not result in the allocation limits in Part 6 being exceeded.

PART 5—CONSEQUENCES OF DEFAULT

Liability for failure to comply with requirements of this Determination

28. (1) If a nominated applicant does not pay the balance of the bid price in accordance with this Determination:

(a) the applicant ceases to be entitled to be allocated the licence for the lots that were bid for; and

(b) any amount paid by the applicant under paragraph 25 (2) (b) is forfeited to the ACA; and

(d) the performance bond (if any) held by the ACA is forfeited to the ACA; and

(e) the affected lots may be re-allocated at the same auction or treated as unsold lots under clause 29.

(2) If a nominated applicant is in default of its financial obligations to the ACA, the amount payable to the ACA, worked out under subclauses (3) or (4), as the case requires, is a debt due to the ACA and is recoverable by the ACA from the nominated applicant in any court of competent jurisdiction.

(3) The amount recoverable under subclause (2) is the balance of the bid price, allowing for the following deductions, as the case requires:

(a) any amounts (other than the entry fee and the deposit) paid to the ACA by the nominated applicant in accordance with this Determination;

(b) if the affected lots are resold at the same auction—the bid price received by the ACA on the resale of the lots;

(d) any amount received by the ACA under a Deed of Financial Security or the Deed of Acknowledgment.

(4) If the affected lots are treated as unsold lots and subsequently allocated in accordance with clause 29, the amount recoverable under subclause (2) is:

(a) if the amount obtained for the lots in a subsequent allocation is less than the balance of the bid price worked out under subclause (3)the difference between those amounts; and

(b) the costs (if any) reasonably incurred by the ACA in allocating the lots in a subsequent allocation.

Lots offered at auction but not sold

29. (1) A lot offered at auction but not sold for any reason may be allocated by the ACA, as the ACA determines:

(a) by another auction; or

(b) by tender; or

(2) The ACA may arrange for 1 or more additional allocations to be held in relation to the lot.

PART 6LIMITS ON ALLOCATION OF SPECTRUM

Division 1—Preliminary

Definitions

30. (1) In this Part:

approved form means a form approved by the ACA.

associate, in relation to a person, means:

(a) for a body corporate:

(i) a director or secretary of the body; or

(ii) a related body corporate; or

(iii) a director or secretary of a related body corporate; or

(iv) a business partner of the body; or

(v) an individual who controls at least 15% of the voting power or holds at least 15% of the issued shares in the body; or

(b) for an individual:

(i) the individual’s spouse; or

(ii) another person who, although not legally married to the individual, lives with the individual on a genuine domestic basis as the spouse of the person; or

(iii) a business partner of the individual; or

(iv) a body corporate in which the individual controls at least 15% of the voting power or holds at least 15% of the issued shares; or

(v) a body corporate of which the individual is a director or secretary; or

(vi) a body corporate that is related to a body corporate of which the individual is a director or secretary; or

(i) entitles 1 of the parties to the agreement to use spectrum licensed to another person under a spectrum licence that relates to a part of the spectrum referred to in a re-allocation declaration; or

(ii) provides for the acquisition of a spectrum licence that relates to a part of the spectrum referred to in a re-allocation declaration.

corporation has the same meaning as in the Corporations Law.

designated associate group means a group of persons designated by the ACA as associates for any allocation of lots by auction under this Determination.

director, in relation to a corporation, has the same meaning as in the Corporations Law.

major capital city means a designated area described in the Schedule to the Spectrum Re-allocation Declaration No. 3 of 1997, made under section 153B of the Act on 15 July 1997, to the extent that the area is within the territorial limits of Australia.

Ministerial Direction means the Radiocommunications (Spectrum Licence Limits—1.8GHz Band) Direction 1998 made on 12 January 1998, as in force from time to time.

re-allocation declaration means the Spectrum Re-Allocation Declaration No.3 of 1997 made under section 153B of the Act on 15 July 1997, as in force from time to time.

related body corporate has the meaning given by the Corporations Law.

relevant agreement, other than an agreement between carriers provided for by or under the Telecommunications Act 1997, Part XIC of the Trade Practices Act 1974 or the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997, 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

specified group of persons means a person and all the associates of that person.

(2) For this Part, 2 or more specified groups of persons having 1 member in common are taken to be 1 specified group of persons.

Note Other terms used in this Part are defined in clause 3.

Purpose of Part

31. The purpose of this Part is:

(a) to impose limits on the aggregate parts of the spectrum that, as a result of the allocation of spectrum licences under this Determination or under any other determination to which the Ministerial Direction applies, may be used by:

(i) a person; or

(ii) a specified group of persons; and

(b) to determine procedures to ensure those limits are not exceeded.

Note The Minister has given a written direction to the ACA under subsection 60 (10) of the Act about the exercise of the ACA’s power to determine procedures to be applied in allocating spectrum licences for imposing limits on the aggregate parts of the spectrum that may be used by a person or specified group of persons.

Division 2—The allocation limits

Imposition of allocation limits

32. (1) This clause imposes the limits on the aggregate parts of the spectrum that, as a result of the allocation of spectrum licences under this Determination or under any other determination to which the Ministerial Direction applies, may be used by particular classes of persons.

(2) No person or specified group of persons may use more than:

(a) 15 MHz of spectrum in any major capital city in the frequency band 1710 MHz to 1755 MHz; and

(b) 15 MHz of spectrum in any major capital city in the frequency band 1805 MHz to 1850 MHz.

Division 3—Matters relevant to considering whether persons associated

Matters relevant to considering whether persons associated

33. When considering, for this Part, whether 2 or more persons are associated, the ACA must have regard to:

(a) statutory declarations made under clause 36 or 37; and

(b) any advice given by the ACCC in response to the material sent to it under clause 34; and

Division 4—Procedures before auction

ACA to send applications to ACCC

34. The ACA must send a copy of each applicant’s application documents to the ACCC within 5 working days of receiving them.

Information to be provided

35. (1) After the period for receiving applications has closed, the ACA must send details of the identity of each applicant and each person holding a spectrum licence for part of the radiofrequency spectrum to which the Ministerial Direction applies to each other applicant before the auction commences.

(2) For subclause (1), an applicant, after receiving details of other applicants and persons, must advise the ACA in writing within 5 working days, if the applicant is an associate of the other applicants or persons.

(3) If, on the basis of information supplied, the ACA is satisfied that an applicant is an associate of another applicant or another person holding a spectrum licence for part of the radiofrequency spectrum to which the Ministerial Direction applies, that association of applicants or persons, or both, will be treated by the ACA as a single entity.

Division 5—Procedures after auction

Nominated applicants to make statutory declarations

36. (1) After the close of the auction, but before licences are issued the ACA must:

(a) give each nominated applicant a notice setting out details of all other nominated applicants for the allocation of licences and all persons to whom spectrum licences have been issued in all previous allocations to which the Ministerial Direction applies; and

(b) ask each nominated applicant to make a statutory declaration stating whether the applicant is an associate of any other nominated applicant, or any other person to whom a spectrum licence has been issued in any previous allocation to which the Ministerial Direction applies.

(2) For paragraph (1) (b), if a nominated applicant is an associate of any other nominated applicant, or any other person holding a spectrum licence for part of the radiofrequency spectrum to which the Ministerial Direction applies, the first mentioned applicant must give the ACA a statutory declaration setting out details of the relevant association with:

(a) the other nominated applicant or applicants; and

(b) the other person or persons.

Exclusion of nominated applicant because of failure to make statutory declaration

37. (1) Within 15 working days of the issue of a notice under clause 36 or the date by which payment of the balance of the bid price must be paid, whichever is the earlier, a nominated applicant must give the ACA a statutory declaration in accordance with that clause.

(2) If a nominated applicant is excluded from obtaining a spectrum licence under subclause (1), all lots for which the applicant was successful are taken to be unsold lots.

Designation of associate group after auction

38. (1) If the ACA considers that 1 or more than 1 nominated applicant are associates of another nominated applicant or any other person holding a spectrum licence for part of the radiofrequency spectrum to which the Ministerial Direction applies, the ACA must designate the nominated applicant or applicants and other person, or persons, if relevant, as associates.

(2) The ACA must, as soon as practicable, by writing, tell each person included in a designated associate group about the identity of each other person designated as an associate in the group, and that the ACA’s decision is reviewable by the ACA, on written application, within 5 days of being told of the decision.

Note See clause 42 for review process.

Consequences of designation of associate group

39. (1) For each designated associate group, the ACA must combine the lots for which the nominated applicants were successful in the auction conducted under this Determination together with any spectrum licences held by each member of the designated associate group for part of the radiofrequency spectrum to which the Ministerial Direction applies.

(2) In considering the application of the allocation limits for each designated associate group, the ACA must take into account the aggregate parts of the radiofrequency spectrum:

(a) that may be allocated to nominated applicants included in the group as a result of the allocation of spectrum licences under this Determination; and

(b) held by nominated applicants or other persons included in the group under spectrum licences for part of the radiofrequency spectrum to which the Ministerial Direction applies.

(3) Subclause (4) applies for a designated associate group if:

(a) the issue of a spectrum licence or licences for the combined lots in an auction conducted under this Determination is combined with spectrum licences for part of the radiofrequency spectrum to which the Ministerial Direction applies; and

(b) the aggregate parts of the spectrum arising from the combination of the lots and those spectrum licences would result in the allocation limits under this Determination being exceeded.

(4) For subclause (3), spectrum licences for the aggregate parts of the spectrum, for the designated associate group, will be issued only:

(a) up to the allocation limits; and

(b) in accordance with an authority and direction, in the approved form, given jointly by the associated applicants included in the group to the ACA indicating how the spectrum won by them at auction is to be allocated between them within those limits.

(5) If a lot remains unsold as a result of the application of the allocation limits for a designated associate group, the lot may be re-allocated at the same auction or treated as an unsold lot under clause 29.

Liability for balance of bid price

40. (1) Imposition of a limitation on the allocation of a spectrum licence to a nominated applicant under clause 39 does not affect the applicant’s obligation to pay the deposit under paragraph 25 (2) (b) and the balance of the bid price for all lots on which the applicant was the successful bidder under subclause 9 (3).

(2) Each applicant with which the nominated applicant is designated as being associated is jointly and severally liable to pay the balance of the bid price.

Consequences of reallocation of excess lots

41. (1) For lots subsequently re-allocated in accordance with subclause 39 (5):

(a) the price obtained for a lot that is re-allocated does not reduce any amount payable under clause 40; and

(b) for lots re-allocated in accordance with clause 29, the members of the relevant designated associate group are jointly and severally liable to pay the ACA the costs (if any) reasonably incurred by the ACA in allocating the relevant lots.

(2) If the amount payable under paragraph (1) (b) is not paid to the ACA within 15 days of a written demand for payment by the ACA, the balance remaining, after allowing for payment from sources mentioned in subclause 15A (1), if then available, is a debt due to the ACA, recoverable by the ACA from a member or members of the relevant designated associate group in any court of competent jurisdiction.

Division 6—General

Review

42. (1) A person who has been included in a designated associate group may apply, in writing, to the ACA for review of the decision within 5 working days of being told of the decision.

(2) If a person seeks a review of the decision—the ACA must, as soon as practicable after receiving the application, reconsider the decision and affirm, vary or revoke the decision.

(3) The ACA must, as soon as practicable, tell the person, in writing, of its decision on the reconsideration together with a statement of reasons for its decision.

PART 7—MISCELLANEOUS

ACA’s liability under the allocation system

43. The ACA is not liable to pay damages or costs arising from an act or omission of any person in relation to the allocation procedures set out in this Determination.

Information provided by applicant

44. (1) A document given to the ACA by a person for the purposes of the allocation system set out in this Determination (including a document that contains intellectual property) becomes the property of the Commonwealth.

(2) Subclause (1) does not apply to a document that is given to the ACA to establish an individual’s identity.

(3) The Commonwealth may use information provided by an applicant for the purposes of the Commonwealth.

Recovery of damages by ACA

45. This Determination is without prejudice to any right of action or remedy that the ACA has or may have against any person which arose or arises under the Deed of Acknowledgment, Deed of Financial Security, statute, common law, equity or otherwise.

Giving of information by ACA

46. Before the ACA issues a licence, it may announce, or publish a notice of:

(a) the name of the person to whom the licence is to be issued; and

(b) the highest final price bid for the lots included in the licence.

Radiocommunications (Spectrum Licence Allocation - Open Outcry Auction) Determination 1998

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