Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2005 (No. 1)

The AUSTRALIAN COMMUNICATIONS AUTHORITY makes this Determination of an allocation system to be applied in allocating freephone and local rate numbers under section 463 of the Telecommunications Act 1997.

Dated 1 March 2005 R. HORTON Chair A. HORSLEY Deputy Chair

Australian Communications Authority

Contents

Part 1 Introduction

1.1 Name of Determination 4

1.2 Commencement 4

1.3 Purpose and application of Determination 4

1.4 Definitions 4

1.5 Approval of forms 6

1.6 Auction manager 6

1.7 Ways in which the ACA gives information 6

1.8 Method of payment of moneys to ACA 6

Part 2 Preparing for the auction

2.1 Unique identifiers and fees 8

2.2 Registration 8

2.3 Allocation applications 9

2.4 Valid applications 9

2.5 Changes during the application period 10

2.6 Withdrawing application 10

2.7 CSP ceases to be registered 10

2.8 Participation notice 11

2.9 Effect of participation notice 11

2.10 Reserve prices and increments 12

2.11 Auction days 12

2.12 Auction limits 12

Part 3 Auctions

3.1 Auction 13

3.2 Period of auction 13

3.3 How to take part in the auction 14

3.4 Bidding 14

3.5 Automatic re-bidding 14

3.6 No withdrawal of bids 15

3.7 Revocation or suspension of registration or participation in auction 15

3.8 Suspension or cancellation of auction 15

3.9 Closing of auction 17

3.10 Successful bidder 18

Part 4 After the auction

Division 1 The successful applicant

4.1 Successful applicant and eligible amount 19

4.2 Payment of eligible amount 19

Division 2 Successful bidder with unpaid eligible amount or without a registered CSP

4.3 Successful bidder with unpaid eligible amount 19

4.4 Successful bidder without a registered CSP 21

Division 3 Consequences of ceasing to be successful bidder

4.5 Defaulted FLRN 21

4.6 Recovery of unpaid eligible amount 22

4.7 Refund to former successful bidder 22

4.8 Status of former successful bidder 23

Division 4 Entitlements after payment of eligible amount

4.9 Entitlements 24

Part 5 Miscellaneous

Division 1 Arrangements relating to auction process

5.1 Review of decisions 25

5.2 Terms and conditions of use 25

5.3 Liability of ACA 26

5.4 Recovery of damages by ACA 26

5.5 ACA may obtain information from applicants 26

5.6 ACA may publish or release information 26

Division 2 Transitional and savings

5.7 Definitions for Division 2 27

5.8 Revocation of Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2004 (No.2) 27

5.9 Certain allocations conducted under revoked determination 27

5.10 Savings — arrangements to be dealt with under revoked determination 27

5.11 Transitional — arrangements to be dealt with under this Determination 27

Part 1 Introduction

1.1 Name of Determination

This Determination is the Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2005 (No. 1).

1.2 Commencement

This Determination commences on the day after it is registered.

1.3 Purpose and application of Determination

(1) This Determination sets out the procedures for allocating freephone and local rate numbers by an ascending bid auction.

(2) This Determination does not apply to:

(a) the allocation of a number for emergency purposes, as set out in section 3.75T of the Numbering Plan; or

(b) the allocation of a number to a charity within the meaning of the Telecommunications (Freephone and Local Rate Numbers — Charities) Allocation Determination 2005 (No. 1).

Note: NOTE: The allocation of freephone and local rate numbers to charities is dealt with in the Telecommunications (Freephone and Local Rate Numbers — Charities) Allocation Determination 2005 (No. 1).

1.4 Definitions

(1) In this Determination, unless the contrary intention appears:

ACA means the Australian Communications Authority continued in existence under section 14 of the Australian Communications Authority Act 1997.

Act means the Telecommunications Act 1997.

allocation application form means the document approved by the ACA under paragraph 1.5(1)(b).

auction means an auction held by the ACA in accordance with this Determination to allocate a freephone or local rate number.

auction day means a day fixed by the ACA under section 2.11 as a day when an auction will take place.

auction manager means the person appointed under section 1.6.

auction system means the information technology system used by the ACA to facilitate the operation of the auction website.

auction website means the website containing Internet accessible information and services made available by the ACA to facilitate the auction process.

bank transfer, for a payment, means making the payment by electronic transfer.

CSP means a carriage service provider.

declared FLRN means a FLRN included in a declaration referred to in subsection 3.75D(1) of the Numbering Plan.

electronically means using guided and/or unguided electromagnetic energy, other than facsimile.

FLRN means a freephone or local rate number within the meaning of the Numbering Plan.

former successful bidder means a bidder identified under:

(a) subparagraph 4.3(1)(b)(ii); or

(b) paragraph 4.3(3)(c); or

Numbering Plan means the Telecommunications Numbering Plan 1997.

original eligible amount means an amount bid by the first successful bidder at a particular auction.

participation notice means the document approved by the ACA under paragraph 1.5 (1) (c).

registration application form means the document approved by the ACA under paragraph 1.5(1)(a).

registered CSP means a CSP registered under section 3.44 of the Numbering Plan.

registered person means a person registered under section 2.2 or an eligible charity registered under section 2.2 of the Telecommunications (Freephone and Local Rate Numbers — Charities) Allocation Determination 2005 (No. 1).

rights of use means the rights set out in section 3.75E of the Numbering Plan

starting bid has the meaning given by subsection 3.4 (2).

subsequent successful bidder means a bidder who becomes a successful bidder after a successful bidder has become a former successful bidder.

successful bidder has the meaning given by section 3.10.

valid application has the meaning given by subsection 2.4 (1).

unique identifier has the meaning given by section 2.1.

working day means a day that is not a Saturday, a Sunday or a public holiday in Victoria.

(2) In this Determination:

(a) a reference to time is a reference to that time in Victoria; and

(b) a reference to the time an act is done:

(i) for an act done using the auction system, is the time that the auction system records the act as being done; and

(ii) in any other case, is the time the ACA records the act as being done; and

(3) If an amount worked out in accordance with this Determination is not a whole number:

(a) the number is to be rounded to the nearest whole number; and

(b) a number with 5 in the first decimal place is to be rounded up to the nearest whole number.

1.5 Approval of forms

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

(a) a registration application form;

(b) an allocation application form;

(2) The ACA may approve more than 1 form of a document.

1.6 Auction manager

The ACA may, in writing, appoint a person (the auction manager) to manage an auction.

1.7 Ways in which the ACA gives information

The ACA may give any information to a person under this Determination:

(a) by placing the information on the auction website; or

(b) by facsimile; or

1.8 Method of payment of moneys to ACA

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

(2) Unless otherwise provided in this Determination, moneys due to the ACA under this Determination must be paid by the date required by this Determination.

(3) If a payment is required to be made by a specific date, it is sufficient if, by that date:

(a) for a payment made by a bank cheque or cash:

(i) the applicant has delivered the amount of the payment to the ACA (by hand, post or other means); and

(ii) the ACA has received the cheque or cash; or

(b) for a payment made by BPay — the ACA has received the payment into an account nominated or made available for that purpose by the ACA or the Commonwealth; or

(c) for a payment made by another means notified by the ACA — the ACA has received the payment into an account nominated or made available for that purpose by the ACA or the Commonwealth.

(4) For this Determination, a payment is not made to the ACA unless the ACA receives the full amount of the payment, net of:

(a) any bank fees or charges; and

(b) any Government duties or other imposts.

Part 2 Preparing for the auction

2.1 Unique identifiers and fees

(1) A unique identifier is:

(a) a username and password issued by the ACA; or

(b) an electronic certificate or signature issued by the ACA; or

(2) The ACA may at any time revoke a unique identifier and re-issue or replace it.

(3) If the ACA has not already done so under this Determination or the Telecommunications (Freephone and Local Rate Numbers — Charities) Allocation Determination 2005 (No. 1), the ACA must:

(a) allot each registered CSP a unique identifier; and

(b) give the CSP details of its unique identifier.

(4) The ACA may set:

(a) the amount of the registration fee; and

(b) the amount of the application fee.

(5) The ACA must publish these amounts on the auction website.

2.2 Registration

(1) A person interested in obtaining the rights of use in relation to a declared FLRN may apply to the ACA to be registered.

Note: NOTE: The ACA may declare that specified FLRNs are only to be allocated by auction: see sections 3.39 and 3.75D of the Numbering Plan.

(2) The application must be made electronically, using the approved form and the auction website.

(3) After the registration fee (if any) has been paid and, if the ACA has not already given the registered person a unique identifier under this Determination or the Telecommunications (Freephone and Local Rate Numbers — Charities) Allocation Determination 2005 (No. 1), the ACA must give the registered person a unique identifier.

(4) A registered person may change the person’s contact details and password (if any).

(5) A registered person is entitled to access the ACA’s auction website using the person’s unique identifier.

(6) A CSP may apply and be registered under this section.

(7) If a registered person wants to change the name in which it has applied for or been granted registration, the registered person must make a new application for registration in the new name.

2.3 Allocation applications

(1) A registered person who wants to obtain the rights of use in relation to a declared FLRN under this Determination must apply jointly to the ACA with a registered CSP for the FLRN to be allocated to the CSP.

Note: NOTE: This Determination does not apply to the allocation of declared FLRNs in emergency situations; see section 3.75T of the Numbering Plan.

(2) The application may be for a specific declared FLRN or for several declared FLRNs.

(3) The application must:

(a) be lodged by the CSP; and

(b) be made:

(i) electronically, using the approved form and the auction website; and

(ii) using the CSP’s unique identifier and the person’s unique identifier.

Note: NOTE: Under the Numbering Plan, a FLRN must be applied for by a registered CSP and can only be allocated to a registered CSP.

(4) A CSP may apply for the rights of use in relation to a declared FLRN under this section. This is an application by a CSP as user.

(5) An application by a registered CSP as user does not need to be a joint application, but a CSP that is not a registered CSP must apply jointly with a registered CSP.

(6) The ACA may refuse an application if the registered person or the relevant CSP has not complied with or agreed to any terms and conditions notified under section 5.2.

(7) The ACA may cancel an application where the ACA is satisfied in all the circumstances that it is appropriate to do so.

2.4 Valid applications

(1) An application becomes a valid application:

(a) if it was made in accordance with section 2.3; and

(b) after payment of the application fee (if required) is received by the ACA.

(2) The ACA will issue the registered person with a receipt that shows the date of the valid application and each number in the person’s valid application.

(3) A valid application:

(a) remains valid for 12 months from the date of the receipt (the application period); and

(b) entitles the registered person to start the auction process by giving the ACA a participation notice, as set out in section 2.8, at any time during the application period; and

(4) A valid application ceases to be a valid application if:

(a) the application period has ended and the applicant has not given a valid participation notice for the FLRN in question; or

(b) the CSP withdraws the application under section 2.6.

2.5 Changes during the application period

If during the application period a registered person wants to change the name in which the person has made an application or the number for which the person has made an application, the registered person must make a new application.

2.6 Withdrawing application

A joint applicant who wishes to withdraw an application for a particular FLRN may, at any time before the relevant registered person has given a participation notice for that FLRN, apply for a cancellation under subsection 2.3(7).

2.7 CSP ceases to be registered

(1) If a registered CSP who is a joint applicant ceases to be registered:

(a) before the registered person gives a first participation notice; or

(b) if the person did not give a participation notice – before making a bid for a FLRN in the application;

then:

(d) the registered person must apply again under section 2.3 with a registered CSP.

(2) If a registered CSP who is a joint applicant ceases to be registered:

(a) after the registered person has given a first participation notice; or

(b) if the person did not give a participation notice – after the person makes a bid for a FLRN in the application;

then:

(d) the registered person may make a bid or continue to bid.

(3) However, if a registered person is the successful bidder in the auction after bidding in accordance with subsection (2), the person must obtain another registered CSP within 14 days of the close of the auction.

(4) A failure to obtain another registered CSP within 14 days will constitute a default by the bidder in accordance with Division 2 of Part 4.

2.8 Participation notice

(1) A registered person with a valid application may give the ACA a participation notice for a FLRN listed in the application.

(2) A participation notice may be given at any time before the auction of the FLRN starts.

(3) The participation notice must:

(a) state the FLRN the person wants to obtain the rights of use for; and

(b) be lodged using the person’s unique identifier; and

(c) if the person wants the person’s starting bid to be higher than the reserve price, state the amount of the starting bid; and

(d) be given electronically, using the approved form and the auction website.

(4) The person must give a separate participation notice for each FLRN applied for.

(5) A participation notice will be rejected if:

(a) the person’s application is no longer a valid application; or

(b) a participation notice has been given for the FLRN under the Telecommunications (Freephone and Local Rate Numbers — Charities) Allocation Determination 2005 (No. 1); or

2.9 Effect of participation notice

(1) If it is the first participation notice given for a FLRN, the notice:

(a) allows the person to bid in the auction for the FLRN listed in the notice; and

(b) will start the auction for that number on the date fixed under section 3.1; and

(c) once the auction starts, will constitute a first bid for the number at the reserve price or, if the person has stated in the participation notice the amount of the person’s higher starting bid, at that higher amount.

(2) If a first participation notice has already been given for the FLRN, any subsequent participation notice is of no effect.

Note: NOTE: A person who lodges a subsequent participation notice may still bid in the auction via section 3.4.

2.10 Reserve prices and increments

(1) The ACA must from time to time set the reserve price and minimum bid increment that is to apply to each declared FLRN.

(2) The reserve price and minimum bid increment for a particular FLRN for an auction are the reserve price and minimum bid increment that were in place at the date when the first participation notice was given for the FLRN.

(3) The reserve prices and minimum bid increments must be notified on the auction website at least 10 working days before the start of the period in which they apply.

2.11 Auction days

The ACA must, from time to time:

(a) fix a day as the auction day; and

(b) notify this on the auction website at least 10 working days before the auction day.

Note: NOTE: For example, the ACA may fix a particular day in each month.

2.12 Auction limits

The ACA may, from time to time:

(a) specify the maximum quantity of numbers that may be auctioned on a particular auction day; and

(b) notify this on the auction website at least 10 working days before the auction day from which the maximum quantity will apply.

Part 3 Auctions

3.1 Auction

(1) If a first participation notice is given for a FLRN, the auction of the FLRN is to be held on the next auction day that is at least 10 working days after the date the participation notice was given.

Note: NOTE: For giving a participation notice, see sections 2.8 and 2.9.

(2) If the maximum quantity of numbers for auction on a particular auction day set under section 2.12 has already been reached, the ACA may:

(a) auction the FLRN on the next auction day; or

(b) fix another auction day for auctioning the remaining FLRNs; and

3.2 Period of auction

(1) An auction starts and closes in accordance with subsections (2) to (7), although the auction may be resumed in accordance with subsection 3.8(12).

Note: NOTE: Subsection 3.8(12) refers to circumstances in which an auction is resumed if the details of a winning bid have been irretrievably lost because of a technical failure in the auction website.

(2) An auction starts at 11 am on the auction day set under section 3.1.

(3) The auction closes at 4 pm on the auction day unless a bid is made after 3 pm on the auction day.

(4) If a bid is made after 3 pm on the auction day, the auction will end for the day at 4 pm and continue at 11 am on the next working day (Day 2).

(5) If a bid is placed after 3 pm on Day 2, the auction will end for the day at 4 pm and continue at 11am on the next working day.

(6) This process is to continue until the auction closes under subsection (6).

(7) If an auction continues as set out in subsections (3), (4) and (5), the auction will close at 4 pm or on the next hour that is at least one full hour since the last bid, whichever is the earlier.

(8) The period from 11 am on the auction day until the closure of the auction is the auction period.

(9) Bidding can take place between the hours of 11 am and 4 pm during the auction period.

Note: EXAMPLE: An auction starts at 11 am on auction day. The auction will run until 4 pm on that day, unless a bid is made after 3 pm on that day. If a bid is placed after 3 pm, the auction will continue at 11 am on the next working day (Day 2), and, unless a bid is placed before 12 noon, the auction will close at 12 noon on Day 2. If a bid is placed between 11 am and 12 noon on Day 2, the auction continues to run until the next full chronological hour (eg 1.00 pm, 2.00 pm, 3.00 pm) that is at least 60 minutes after the last valid bid. If a bid is made after 3 pm, the auction ends for the day at 4 pm and continues at 11 am on the next working day. This cycle will continue until a winning bid is determined.

3.3 How to take part in the auction

All bidding at an auction is to be done electronically using the auction website.

3.4 Bidding

(1) A registered person with a valid application may make a bid for a FLRN listed in the application, whether or not the person has given a participation notice.

(2) A starting bid must be:

(a) an amount equal to the reserve price; or

(b) if the bidder stated a higher amount in the bidder’s participation notice, that higher amount.

(3) A bid for a FLRN must:

(a) be made using the person’s unique identifier; and

(b) for a bid after the starting bid, be at least 1 minimum bid increment above the existing highest bid.

(4) A bid that does not comply with these requirements is of no effect.

3.5 Automatic re-bidding

(1) The ACA may make provision on the auction website for a person who is entitled to bid in an auction to make automatic re-bids in that auction, via the auction website.

(2) If this is done, a bidder may make automatic re-bids using the auction website.

(3) The bidder must tell the ACA:

(a) that the bidder wants to make automatic re-bids; and

(b) the maximum amount the bidder is prepared to bid to (the maximum bid amount).

(4) Each automatic re-bid will be 1 minimum bid increment above the existing highest bid.

(5) A bidder’s automatic re-bids cease if the amount of the next automatic bid would exceed the bidder’s maximum bid amount.

3.6 No withdrawal of bids

A bidder may not withdraw a bid.

3.7 Revocation or suspension of registration or participation in auction

(1) The ACA may suspend a registered person’s registration and/or exclude a bidder from participating in an auction if the registered person has been the successful bidder at another auction but is in default of the payment of the eligible amount.

(2) The ACA may revoke a registered person’s registration and/or exclude a bidder from participating in an auction if the registered person has made a false statement to the ACA within the meaning of subsection 136(1) of the Criminal Code Act 1995:

(a) in the registered person’s application for registration; or

(b) in the registered person’s joint application for allocation; or

(d) in connection with an auction.

(3) Where the ACA is reasonably satisfied in all the circumstances that a person has engaged in, or is likely to engage in, conduct that is prejudicial to the efficient and fair operation of the auction process (including but not limited to disguising the person’s true identity), the ACA may exclude that person from participation in any or all future auctions.

Note: NOTE: Nothing in this provision is intended to affect a person’s ability to use an agent or representative to secure a number.

(4) The ACA must tell the person the reason for the suspension, revocation or exclusion.

3.8 Suspension or cancellation of auction

(1) The ACA may suspend or cancel an auction:

(a) if it has excluded or suspended a person from participating in an auction; or

(b) because of a technical failure in the auction website or auction system; or

(d) to give the ACA time to investigate an irregularity in the auction; or

(e) if the ACA is satisfied that in the circumstances it is appropriate to do so.

(2) If the auction is suspended due to the exclusion or suspension of a person, the auction may resume at the point immediately prior to the excluded or suspended person’s first bid.

(3) If the auction is suspended because of a technical failure in the auction website or auction system:

(a) the auction may resume when the technical failure is fixed; and

(b) the auction is to continue from the last valid bid recorded in the auction system.

(4) If the auction is suspended, the ACA may:

(a) resume the auction from the last valid bid; or

(b) cancel the auction.

(5) The auction must not resume until at least one full working day has elapsed since the ACA has told all participants of the date and time when the auction is to resume.

(6) If the ACA resumes the auction from the last valid bid, and no further bids are made, the registered person who made the last valid bid recorded in the auction system prior to the suspension (the provisional high-bidder) will have the option to either:

(a) confirm the person’s bid; or

(b) apply to the ACA for a cancellation of the auction.

(7) An application for cancellation of an auction under subsection (6) must be accompanied by written reasons for the request.

(8) If the provisional high bidder applies for a cancellation of the auction and provides written reasons, the ACA may, after consideration of all the circumstances, cancel the auction.

(9) If the auction is cancelled, the ACA may make the FLRN again available for allocation by auction.

(10) Nothing in subsection (1) requires the ACA to consider whether it will exercise its power to suspend or cancel an auction.

(11) In addition to subsection (1), if:

(a) the ACA is satisfied that the details of a winning bid in relation to an auction have been irretrievably lost because of a technical failure in the auction website or auction system; and

(b) the auction has closed in accordance with section 3.2;

the ACA may resume the auction in accordance with subsection (12), or treat the auction as not having been held in accordance with subsection (13).

Note: NOTE: The ACA will decide whether it can resume an auction as soon as practicable after being satisfied that the details of the winning bid have been irretrievably lost. However, the time that the ACA will need to identify any valid bids in relation to an auction, and to notify the bidders at the auction, will vary depending on the circumstances of that auction.

(12) If the ACA is able to identify 1 or more valid bids in relation to an auction mentioned in subsection (11):

(a) the auction is taken not to have closed in accordance with section 3.2; and

(b) the ACA must take the highest of the valid bids that the ACA can identify as the last valid bid, and resume the auction in accordance with subsections (4) to (9); and

(c) each bidder who bid at the auction after the highest of the valid bids that the ACA can identify is taken not to have made that bid for the FLRN; and

(d) the CSP who was the joint applicant with the highest bidder at the auction is taken not to be the successful applicant for the allocation of the FLRN; and

(e) the resumed auction closes in accordance with section 3.2; and

(f) the ACA must, as soon as practicable, notify each registered person in relation to the auction that:

(i) the details of the winning bid have been irretrievably lost; and

(ii) a valid bid has been identified; and

(iii) this subsection applies in relation to the FLRN.

Note: NOTE: The bidder who made the highest of the valid bids that the ACA can identify has the option of applying to the ACA to cancel the auction: see subsection (6).

(13) If the ACA is unable to identify any valid bids in relation to an auction mentioned in subsection (11):

(a) the auction is taken not to have been held; and

(b) each bidder who bid at the auction is taken not to have made a bid for the FLRN; and

(c) the CSP who was the joint applicant with the highest bidder at the auction is taken not to be the successful applicant for the allocation of the FLRN; and

(d) each participation notice given under section 2.8 in relation to the auction is taken to have no effect; and

(e) the ACA may make the FLRN again available for allocation by auction; and

(f) the ACA must, as soon as practicable, notify each registered person in relation to the auction that:

(i) the details of the winning bid have been irretrievably lost; and

(ii) no valid bid has been identified; and

(iii) this subsection applies in relation to the FLRN.

3.9 Closing of auction

(1) The ACA may, on giving 2 working days notification on the auction website, close an auction of a FLRN at a particular time.

(2) If an auction is not closed under subsection (1), the auction of a FLRN closes at the time specified in subsection 3.2(3) or (6).

(3) The ACA must notify the closure on the auction website.

(4) No bids will be accepted after the auction has closed.

3.10 Successful bidder

Subject to subsections 3.8(12) and (13), the bidder who is the highest bidder for the FLRN at the close of an auction is the successful bidder for the FLRN.

Note: NOTE: Subsections 3.8(12) and (13) refer to circumstances in which the details of a winning bid have been irretrievably lost because of a technical failure in the auction website.

Part 4 After the auction

Division 1 The successful applicant

4.1 Successful applicant and eligible amount

For the purposes of subsection 463(6) of the Act, but subject to subsections 3.8(12) and (13):

(a) the CSP who was the joint applicant with the successful bidder at an auction of a FLRN is the successful applicant for the allocation of the FLRN; and

(b) the amount of the highest bid in an auction for a FLRN is taken to be the eligible amount in relation to the allocation of the FLRN.

Note: NOTE 1: Section 463 requires the successful applicant for the allocation of a FLRN, and the eligible amount in relation to that FLRN, to be determined by reference to the results of the auction.

Note: NOTE 2: Subsections 3.8(12) and (13) refer to circumstances in which the details of a winning bid have been irretrievably lost because of a technical failure in the auction website.

4.2 Payment of eligible amount

(1) The successful bidder must pay the eligible amount to the ACA on behalf of the CSP within 30 days of the close of the auction.

(2) The amount must be paid in accordance with section 1.8.

Note: NOTE: If the successful bidder does not pay the eligible amount to the ACA within the 30 days, Division 2 will apply.

Division 2 Successful bidder with unpaid eligible amount or without a registered CSP

4.3 Successful bidder with unpaid eligible amount

(1) If the successful bidder does not pay the eligible amount within 30 days of the close of the auction (the first period), the bidder is entitled to a further 30 days (making a total period of 60 days after the close of the auction) to pay the eligible amount, unless the ACA:

(a) is satisfied that it would not be appropriate in the circumstances for the bidder to be entitled to the further 30 days; and

(b) as soon as practicable after the end of the first period:

(i) allows the bidder a further period after the end of the first period, specified by the ACA (but not more than 29 days), to pay the eligible amount; or

(ii) decides to treat the bidder as having ceased to be the successful bidder, and as having become the former successful bidder, at the end of the first period.

Note: NOTE: If the successful bidder does not pay the eligible amount within the first period, the ACA’s preference is for the successful bidder to have a further period of 30 days. However, there may be circumstances in which:

Note: (a) the ACA considers that a shorter period is appropriate; or

Note: (b) the ACA is not satisfied that the bidder could pay the eligible amount within any further period; or

Note: (c) the ACA is otherwise satisfied that its dealings with the bidder should be terminated.

(2) The further period of 30 days, or the further period allowed under subparagraph (1) (b) (i), is the further period for the successful bidder.

(3) If a further period applies:

(a) the bidder must pay the eligible amount to the ACA on behalf of the CSP within the further period; and

(b) the amount must be paid in accordance with section 1.8; and

(c) if the successful bidder does not pay the eligible amount within the further period — the bidder ceases to be the successful bidder at the end of the further period and becomes the former successful bidder.

(4) If the bidder becomes the former successful bidder:

(a) the bidder will not be entitled to the rights of use in relation to the FLRN as a result of the completed auction; and

(b) the bidder’s CSP will not be entitled to the allocation of the FLRN as a result of the completed auction; and

(c) the FLRN will be regarded as a defaulted FLRN, and the bidder will be taken to be in default of its financial obligations to the ACA under this Determination.

Note: NOTE: Subject to section 3.7, if a successful bidder does not pay the eligible amount within the further period, and the FLRN is re-auctioned, the former successful bidder is eligible to bid for the FLRN again at that auction.

Example 1

Bidder A wins a number at auction but fails to pay within 30 days of the auction due to genuine error. The ACA does not set a further period or treat Bidder A as having ceased to be the successful bidder.

The ACA receives the winning bid amount on the 60th day after the close of the auction.

The ACA will treat the winning bid amount as having been paid within time and the entitlements under section 4.9 will accrue to Bidder A and Bidder A's CSP.

Example 2

Bidder A wins a number at auction but fails to pay within 30 days of the auction due to genuine error. On the 31st day, the ACA allows the bidder a further 10 days from the date of its decision to pay the eligible amount.

The ACA receives the winning bid amount on the 41st day after the close of the auction.

The ACA will treat the winning bid amount as having been paid within time and the entitlements under section 4.9 will accrue to Bidder A and Bidder A's CSP.

Example 3

Bidder A wins a number at auction but fails to pay within 30 days of the auction. On the 32nd day, the ACA decides to treat the bidder as having ceased to be the successful bidder.

Bidder A and its CSP will not be eligible for the entitlements granted under section 4.9. The ACA may decide to re-auction the number, allocate the number via Division 5, 6 or 7 of the Numbering Plan or allocate the number under section 3.75T of the Numbering Plan.

4.4 Successful bidder without a registered CSP

If the successful bidder for a FLRN does not find another registered CSP as required by subsection 2.7(3):

(a) the bidder ceases to be the successful bidder and becomes the former successful bidder; and

(b) the bidder will not be entitled to the rights of use in relation to the FLRN as a result of the completed auction; and

(d) the FLRN will be regarded as a defaulted FLRN, and the bidder will be taken to be in default of its financial obligations to the ACA under this Determination.

Note: NOTE: If a successful bidder does not find another registered CSP, and the FLRN is re-auctioned, the former successful bidder is eligible to bid for the FLRN again at that auction.

Division 3 Consequences of ceasing to be successful bidder

4.5 Defaulted FLRN

(1) If a FLRN becomes a defaulted FLRN under paragraph 4.3(4)(c) or 4.4(d), the ACA may:

(a) make the FLRN available by holding a new auction (a subsequent auction) in accordance with this Determination or the Telecommunications (Freephone and Local Rate Numbers — Charities) Allocation Determination 2005 (No. 1); or

(b) make the number available for allocation in accordance with Division 5, 6 or 7 of the Numbering Plan; or

(2) The ACA is not required to take action under subsection (1) within any particular period after the FLRN becomes a defaulted FLRN.

(3) For the purposes of subsection 463(6) of the Act, if the ACA allocates a defaulted FLRN in accordance with paragraph (1)(a), the amount of the highest bid in the subsequent auction is taken to be the eligible amount in relation to the allocation of the FLRN.

Note: NOTE: Section 463 requires the eligible amount in relation to the allocation of a FLRN to be determined by reference to the results of the auction.

4.6 Recovery of unpaid eligible amount

(1) Any eligible amount that has not been paid by a bidder is a debt due to the Commonwealth, and is recoverable by the ACA from the bidder in any court of competent jurisdiction, whether or not another eligible amount has been identified in accordance with subsection 4.5(3).

(2) However:

(a) if an eligible amount is paid for the defaulted FLRN in accordance with a subsequent auction; or

(b) an amount is paid for an allocation of the defaulted FLRN in accordance with Division 5, 6 or 7 of the Numbering Plan;

the amount of the former successful bidder’s debt in relation to the defaulted FLRN must be reduced by the total of the amounts paid by any subsequent successful bidder for the FLRN.

Note: NOTE: See paragraph 4.1(b) and subsection 4.5(3) for the eligible amount.

(3) For subsection (2), if the total of the amounts paid by a subsequent successful bidder is greater than the amount of the former successful bidder’s debt, the amount of the former successful bidder’s debt is taken to be reduced to zero.

Example 1

Bidder A wins a number at auction for $10 000. Bidder A does not pay within the required time. As a result, Bidder A becomes the former successful bidder. Bidder A therefore has a debt to the Commonwealth of $10 000.

The ACA decides to re-auction the number pursuant to paragraph 4.5(1)(a). At the subsequent auction, Bidder B wins the auction with a high bid of $7 500 and pays the amount within time.

Bidder A’s debt to the Commonwealth is reduced by the $7 500 paid by Bidder B. Bidder A therefore owes the Commonwealth $2,500.

Example 2

The ACA decides to re-auction the number pursuant to paragraph 4.5(1)(a). At the subsequent auction, Bidder B wins the auction with a high bid of $12 500 and pays the amount within time.

Because the amount received from Bidder B is more than Bidder A’s debt, Bidder A’s debt is reduced to zero.

4.7 Refund to former successful bidder

(1) If a former successful bidder pays the original eligible amount, the ACA must pay an amount to the former successful bidder as soon as practicable.

Note: NOTE: A successful bidder who pays an eligible amount, but:

Note: (a) did not pay it by the end of the appropriate payment period; or

Note: (b) does not have a registered CSP in accordance with this Determination;

Note: ceases to be the successful bidder, becomes a former successful bidder, and does not receive the rights of use in relation to the FLRN. See paragraphs 4.3(1)(b), 4.3(3)(c) and 4.4(a).

(2) The amount is the lesser of:

(a) either:

(i) the eligible amount paid by a subsequent successful bidder for the defaulted FLRN in accordance with a subsequent auction; or

(ii) an amount paid for the allocation of the defaulted FLRN in accordance with Division 5, 6 or 7 of the Numbering Plan; and

(b) the original eligible amount paid by the former successful bidder.

Example 1

The ACA decides to re-auction the number pursuant to paragraph 4.5(1)(a). Prior to the subsequent auction, Bidder A pays $10 000. However, the $10 000 has been paid out of time, so Bidder A remains the former successful bidder.

At the subsequent auction, Bidder B wins the auction with a high bid of $7 500 and pays the amount.

The lesser of the original $10 000 paid out of time and the $7 500 paid as the result of the subsequent auction is $7 500. The ACA refunds $7 500 to Bidder A.

Example 2

At the subsequent auction, Bidder B wins the auction with a high bid of $12 500 and pays the amount.

The lesser of the original $10 000 paid out of time and the $12 500 paid as the result of the subsequent auction is $12 500. The ACA refunds $10 000 to Bidder A.

4.8 Status of former successful bidder

Unless section 3.7 applies, a bidder who becomes a former successful bidder is not prevented from:

(a) participating in any subsequent auction under this Determination or the Telecommunications (Freephone and Local Rate Numbers — Charities) Allocation Determination 2005 (No. 1); or

(b) being allocated a FLRN in accordance with Division 5, 6 or 7 of the Numbering Plan; or

Division 4 Entitlements after payment of eligible amount

4.9 Entitlements

If the eligible amount has been paid to the ACA in accordance with subsection 4.2(1) or 4.3(3):

(a) the registered CSP who was the joint applicant with the successful bidder, or who has been obtained by the successful bidder pursuant to subsection 2.7(3), must be allocated the FLRN in accordance with section 3.75E of the Numbering Plan; and

(b) the successful bidder has the right to be issued the FLRN in accordance with section 3.75G of the Numbering Plan; and

(c) the CSP has the right to have the FLRN surrendered if the CSP indicated in the application that the CSP wanted the FLRN to be surrendered; and

(d) the successful bidder acquires the rights of use in accordance with section 3.75E of the Numbering Plan.

Note: NOTE 1: Sections 3.75A – 3.75T of the Numbering Plan deal with the allocation, issue and surrender of FLRNs.

Note: NOTE 2: As well as the rights of use attached to all FLRNs, the additional rights of use attached to auctioned FLRNs are set out in section 3.75E of the Numbering Plan.

Part 5 Miscellaneous

Division 1 Arrangements relating to auction process

5.1 Review of decisions

(1) Application may be made to the Administrative Appeals Tribunal for review of the following decisions:

(a) a decision by the ACA under subsection 2.3(7) to cancel an allocation application;

(b) a decision by the ACA under section 3.7:

(i) to revoke or suspend a registered person’s registration; or

(ii) to exclude a bidder from participating in an auction;

(d) a decision by the ACA under subparagraph 4.3(1)(b)(i):

(i) to specify a particular further period in which a successful bidder must pay the eligible amount; or

(ii) to treat a bidder as having ceased to be the successful bidder.

(2) If the ACA makes a decision mentioned in subsection (1), the ACA must give electronic notice of the decision to a person whose interests it affects.

(3) The notice must include a statement to the effect that:

(a) subject to the Administrative Appeals Tribunal Act 1975, a person dissatisfied with the decision may apply to the Tribunal for a review of the decision; and

(b) the person may request a statement under section 28 of that Act in relation to the decision.

5.2 Terms and conditions of use

(1) Subject to subsection (3), the ACA may notify on the auction website terms and conditions related to:

(a) use of the auction website; and

(b) registration; and

(d) participation in the auction process; and

(e) the payment of monies; and

(f) the publication of the information set out in section 5.6; and

(g) the use of numbers allocated as the result of the auction process; and

(h) any other matter that the ACA considers appropriate for the operation of the auction system.

(2) The ACA may require persons to agree to any such terms and conditions prior to use of the auction website or the registration or application processes.

(3) The terms and conditions notified under subsection (1) must not be inconsistent with any provision in:

(a) this Determination; or

(b) the Telecommunications (Freephone and Local Rate Numbers — Charities) Allocation Determination 2005 (No. 1); or

5.3 Liability of ACA

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

5.4 Recovery of damages by ACA

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

5.5 ACA may obtain information from applicants

(1) This section applies to an applicant if the ACA has reason to believe that the applicant has information or documents that are relevant to the performance of any of the ACA’s functions under this Determination.

(2) The ACA may, by written notice to an applicant, require the applicant to give the ACA that information and those documents, within the period and in the manner and form specified in the notice.

(3) An applicant must comply with a requirement under subsection (2).

5.6 ACA may publish or release information

(1) The ACA may publish or release information which pertains to the auction process on the auction website or elsewhere.

(2) The information which may be published ore released includes, but is not limited to, the following:

(a) the personal details of any person participating in the auction process, including registered persons, applicants and bidders;

(b) the amount of any bid;

(d) the time and manner of payment of the eligible amount.

Division 2 Transitional and savings

5.7 Definitions for Division 2

In this Division:

commencement day means the date on which this Determination commences.

revoked determination means the Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2004 (No.2).

5.8 Revocation of Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2004 (No.2)

The Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2004 (No.2) is revoked.

5.9 Certain allocations conducted under revoked determination

If, before the commencement day:

(a) the ACA allocated a defaulted FLRN in accordance with paragraph 4.5(b) of the revoked determination; and

(b) a person paid the eligible amount for the defaulted FLRN;

the allocation is taken to have been effective for the purposes of the revoked determination.

Note: NOTE: See paragraph 4.1(b) and subsection 4.5(3) for the eligible amount.

5.10 Savings — arrangements to be dealt with under revoked determination

In spite of the revocation of the revoked determination:

(a) Part 3 of the revoked determination applies to the conduct of any auction for which a valid participation notice had been lodged, but bidding had not closed, before the commencement day; and

(b) section 5.1 of the revoked determination applies to a decision mentioned in section 5.1 of the revoked determination that was made before the commencement day.

5.11 Transitional — arrangements to be dealt with under this Determination

(1) If:

(a) the ACA made, or was taken to have made, an arrangement under a provision of the revoked determination relating to an auction; and

(b) the auction had not been conducted before the commencement day;

the ACA is taken to have made the arrangement under the equivalent provision of this Determination.

Note: NOTE 1: The auction will be conducted in accordance with this Determination.

Note: NOTE 2 The arrangements that the ACA may have made under the revoked determination include:

Note: (a) the approval of a form;

Note: (b) the issue, revocation, reissue, replacement or allotment of a unique identifier;

Note: (c) the publication of a fee;

Note: (d) the giving of a participation notice;

Note: (f) the fixing of an auction day;

Note: (h) the specification or notification of an auction limit;

Note: (i) the notification of terms and conditions of use on the auction website.

(2) If:

(a) an application for registration was made, or taken to have been made, or a registration was granted, or taken to have been granted, under section 2.2 of the revoked determination; and

(b) the auction or allocation to which the application relates had not been completed before the commencement day;

the application or registration is taken to have been made or granted under section 2.2 of this Determination.

(3) If:

(a) the ACA notified, or was taken to have notified, a reserve price or a minimum bid increment under section 2.10 of the revoked determination; and

(b) the auction or allocation to which the reserve price or minimum bid increment relates had not been conducted before the commencement day;

the ACA is taken to have notified the reserve price or minimum bid increment under section 2.10 of this Determination 10 days before the period to which it applies.

(4) This Determination applies to the conduct of an auction:

(a) for which arrangements had been made, or were taken to have been made, under the revoked determination before the commencement day; but

(b) that had not commenced before the commencement day.

(5) Part 4 and Division 1 of Part 5 of this Determination apply to an auction that had commenced, but had not been completed, before the commencement day.

(6) If an amount that was payable under the revoked determination had not been paid before the commencement day, Part 4 of this Determination applies to:

(a) the payment of the amount; and

(b) the bidder; and

Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2005 (No. 1)

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Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2005 (No. 1)

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1 Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2005 (No. 1)