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

Telecommunications (Freephone and Local Rate Numbers — Charities) 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 to charities 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 Strategic FLRN 6

1.6 Approval of forms 6

1.7 Auction manager 6

1.8 Ways in which the ACA gives information 7

1.9 Method of payment of moneys to ACA 7

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 Reserve prices 11

2.9 Participation notice 11

2.10 Effect of participation notice 12

2.11 Auction days 12

Part 3 Auctions

3.1 Bidding 13

3.2 How to take part in the auction 13

3.3 No withdrawal of bids 13

3.4 Revocation or suspension of registration or participation in auction 13

3.5 Opening and closing of bidding period 14

3.6 Suspension or cancellation of auction 14

3.7 Successful bidder 16

Part 4 After the auction

Division 1 The successful applicant

4.1 Successful applicant and eligible amount 18

4.2 Payment of eligible amount 18

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

4.3 Successful bidder with unpaid eligible amount 18

4.4 Successful bidder without a registered CSP 20

Division 3 Consequences of ceasing to be successful bidder

4.5 Defaulted FLRN 20

4.6 Recovery of unpaid eligible amount 21

4.7 Refund to former successful bidder 21

4.8 Status of former successful bidder 22

Division 4 Entitlements after payment of eligible amount

4.9 Entitlements 23

Part 5 Miscellaneous

Division 1 Arrangements relating to auction process

5.1 Review of decisions by Administrative Appeals Tribunal 24

5.2 Terms and conditions of use 24

5.3 Liability of ACA 25

5.4 Recovery of damages by ACA 25

5.5 ACA may obtain information from applicants 25

5.6 ACA may publish or release information 25

Division 2 Transitional and savings

5.7 Definitions for Division 2 26

5.8 Revocation of Telecommunications (Freephone and Local Rate Numbers — Charities) Allocation Determination 2004 (No.2) 26

5.9 Certain allocations conducted under revoked determination 26

5.10 Savings — arrangements to be dealt with under revoked determination 26

5.11 Transitional — arrangements to be dealt with under this Determination 26

Part 1 Introduction

1.1 Name of Determination

This Determination is the Telecommunications (Freephone and Local Rate Numbers — Charities) 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 a sealed bid auction process.

(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 within the meaning of the Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2005 (No. 1).

Note: NOTE: The allocation of freephone and local rate numbers generally is dealt with in the Telecommunications (Freephone and Local Rate Numbers) 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 1.6 (1) (b).

auction means an auction held by the ACA in accordance with this Determination to allocate a freephone or local rate number, and covers the period from the lodging of the first valid participation notice:

(a) to the closing of the auction under subsection 2.10(4); or

(b) the closing of the bidding period.

auction manager means the person appointed under section 1.7.

bidding period means the period specified in section 3.5.

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.

eligible charity means a charity that has been endorsed as an income tax exempt charitable entity under Subdivision 50-B of the Income Tax Assessment Act 1997.

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

notification period means the 10 working days after the ACA notifies on the auction website that it has received a first valid participation notice.

Numbering Plan means the Telecommunications Numbering Plan 1997.

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

registration application form means the document approved by the ACA under paragraph 1.6(1)(a).

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

registered charity means an eligible charity registered under section 2.2.

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

strategic, for a FLRN for a charity, has the meaning given by section 1.5.

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 3.7.

unique identifier has the meaning given by section 2.1.

valid application has the meaning given by subsection 2.4 (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 Strategic FLRN

(1) A FLRN is strategic for an eligible charity if the FLRN forms a word that:

(a) matches a word that is part of the name of the eligible charity; or

(b) matches a word within a registered trade mark or registered business name of the eligible charity; or

is a single acronym that comprises the initial letters of words within the name of the eligible charity, or words within a registered trade mark or registered business name of the eligible charity; or

Note: NOTE: A single acronym would be “ACA”, where ACA stands for Australian Communications Authority. “ACAACA” would not be a single acronym and would not be permitted.

(d) reflects the objects of the eligible charity as described in its constituting documents; or

(e) matches a word within a common usage version of the eligible charity’s name.

1.6 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.

1.7 Auction manager

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

1.8 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

1.9 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) 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) An eligible charity 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 charity a unique identifier under this Determination or the Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2005 (No. 1), the ACA must give the registered charity a unique identifier.

(4) A registered charity may change its contact details and password (if any).

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

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

2.3 Allocation applications

(1) A registered charity that 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.

NOTE: An eligible charity may not hold more than one of each type of FLRN (ie 13, 1300 and 1800 numbers) for a period greater than 12 months – see section 3.75Q of the Numbering Plan.

(3) Each FLRN in the application must be a strategic FLRN for that charity.

(4) 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 charity’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.

(5) The ACA may refuse the application if:

(a) the charity is not, or is no longer, an eligible charity; or

(b) one of the FLRNs covered by the application is not a strategic FLRN for the charity; or

(6) 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 charity with a receipt that shows the date of the valid application and each number in the charity’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 charity to start the auction process by giving the ACA a participation notice; and

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

(a) the application period has ended; or

(b) the CSP withdraws the application under section 2.6; or

2.5 Changes during the application period

If during the application period a registered charity wants to change the name in which it has made an application or the number for which it has made an application, the registered charity 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 charity has given a participation notice for that FLRN, apply for a cancellation under subsection 2.3(6).

2.7 CSP ceases to be registered

(1) If a registered CSP who is a joint applicant ceases to be registered before the registered charity gives a participation notice or makes a bid:

(a) the application is no longer a valid application; and

(b) if the registered charity who was the joint applicant still wants to give a participation notice or bid, it 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 after the registered charity has given a participation notice or made a bid for a FLRN in the application:

(a) the application will continue to be a valid application; and

(b) the registered charity may make a bid in accordance with section 3.1.

(3) However, if a registered charity is the successful bidder in the auction after bidding in accordance with subsection (2), the charity 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 Reserve prices

(1) The ACA must from time to time set the reserve price for each declared FLRN to be auctioned under this Determination.

Note: NOTE: The ACA may also set reserve prices for FLRNs that are auctioned under the Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2005 (No. 1): see section 2.10 of that determination.

(2) The reserve price for a particular FLRN for an auction is the reserve price that was in place at the date when the first participation notice for the FLRN was lodged with the ACA in accordance with section 2.9.

(3) A reserve price must be notified on the auction website at least 10 working days before the start of the period in which it applies.

2.9 Participation notice

(1) An eligible charity 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 registered charity wants to obtain the rights of use for; and

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

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

(5) A participation notice will be rejected if:

(a) the registered charity’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) Allocation Determination 2005 (No. 1); or

(6) At any time prior to the lodging of a further participation notice, and where the ACA is satisfied in the circumstances that it is appropriate to do so, the ACA may cancel a first valid participation notice.

Note: NOTE: First valid participation notices and further participations notices are referred to in section 2.10

2.10 Effect of participation notice

(1) The first valid participation notice given for a FLRN:

(a) allows the registered charity to take part in the auction for the FLRN listed in the notice; and

(b) starts the notification period; and

(c) constitutes a bid for the number at the reserve price, unless the registered charity makes a higher bid during the bidding period.

Note: NOTE: An eligible charity may bid even if it has not given a participation notice.

(2) On receiving a valid first participation notice, the ACA will notify on the auction website the fact that the participation notice was given and the name of the eligible charity.

(3) A registered charity with a valid allocation application may, at any time during the notification period, give its own participation notice for the FLRN to the ACA.

(4) If no other participation notice for the FLRN is received in the notification period, the auction will be deemed closed and the eligible charity that lodged the first valid participation notice will be taken to be the successful bidder, at the reserve price, for the purposes of subsection 3.7(2).

(5) If a further participation notice for the FLRN is received in the notification period, the ACA must set a day for the auction in accordance with section 2.11.

(6) The ACA may notify on the auction website the names of eligible charities that have lodged participation notices.

2.11 Auction days

The ACA must:

(a) fix a day as the auction day for a FLRN that is at least 15 working days after the first valid participation notice is given for the FLRN under subsection 2.10(1); and

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

Part 3 Auctions

3.1 Bidding

(1) An eligible charity with a valid application may make a bid for a FLRN listed in the application, whether or not it has given a participation notice.

Note: NOTE: A charity which gave the first valid participation notice may lodge a sealed bid.

(2) A bid for a FLRN must:

(a) be made during the bidding period; and

(b) be made using the charity’s unique identifier; and

Note: NOTE: The bidding period is defined in section 3.5.

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

(4) All bids will be sealed bids, and will not be considered by the ACA until after the bidding period closes.

(5) The ACA may notify on the auction website the names of eligible charities that have made bids.

3.2 How to take part in the auction

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

3.3 No withdrawal of bids

A bidder may not withdraw its bid.

3.4 Revocation or suspension of registration or participation in auction

(1) The ACA may suspend a registered charity’s registration and/or exclude a bidder from participating in an auction if the registered charity 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 charity’s registration and/or exclude a bidder from participating in an auction if the registered charity 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 charity’s application for registration; or

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

(d) in connection with an auction.

(3) The ACA may revoke a person’s registration as a registered charity and/or exclude a person from participating in an auction if the ACA is satisfied that the person is not, or is no longer, an eligible charity.

(4) 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.

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

3.5 Opening and closing of bidding period

(1) An auction starts and closes in accordance with subsections (2) and (3), although the auction may be resumed in accordance with subsection 3.6(12).

Note: NOTE: Subsection 3.6(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) The bidding period for a FLRN commences at 11 am and, unless the auction has been suspended or cancelled under section 3.6, closes at 4 pm on the auction day set by the ACA in accordance with section 2.11.

(3) Where an auction has been suspended and resumed under section 3.6, the bidding period closes at 4 pm on the day the auction is resumed.

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

3.6 Suspension or cancellation of auction

(1) At any time prior to the closing of the bidding period, the ACA may suspend or cancel an auction:

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

(b) if it has revoked a person’s registration as an eligible charity; or

(d) because of an event beyond the control of the ACA; or

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

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

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

(3) If an auction is suspended, the ACA may:

(a) resume the auction; or

(b) cancel the auction.

(4) If an 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.

(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 or notification period is to resume.

(6) If the ACA resumes a suspended auction and the highest bid at the close of the auction was made prior to the suspension, the registered charity that made that bid (the provisional high-bidder) will have the option to either:

(a) confirm its 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 3.5;

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 3.5; 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 3.5; 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 2.9 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.

3.7 Successful bidder

(1) After the bidding period has closed, the ACA will:

(a) open all bids received during the auction; and

(b) notify the highest bidder on the auction website.

(2) Subject to subsections 3.6(12) and (13):

(a) the bidder who is the highest bidder for the FLRN at the close of an auction is the successful bidder for the FLRN; and

(b) if there are 2 or more equal highest bids, the successful bidder is the bidder whose bid was received first by the ACA using the auction website.

Note: NOTE: Subsections 3.6(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 3.6(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 for 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 3.6(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 1.9.

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 mentioned in subparagraph (1) (b) (i), is the further period.

(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 1.9; 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 3.4, 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) 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 4.3(4).

(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 3.4 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) 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 by Administrative Appeals Tribunal

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

(a) a decision of the ACA to refuse an allocation application under subsection 2.3(5);

(b) a decision of the ACA to cancel an allocation application under subsection 2.3(6);

(c) a decision of the ACA to revoke or suspend a registered charity’s registration or exclude a bidder from participating in an auction under section 3.4;

(d) a decision made by the ACA to cancel or suspend an auction under section 3.6;

(e) 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) 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 about the auction process on the auction website or elsewhere.

(2) The information that may be published or released includes, but is not limited to:

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

(b) the amount of any bid; and

(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 — Charities) Allocation Determination 2004 (No.2)

The Telecommunications (Freephone and Local Rate Numbers — Charities) 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 - Charities) Allocation Determination 2005 (No. 1)

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

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