Radiocommunications (Spectrum Licence Allocation—3.4/3.7 GHz Bands) Determination 2023 (Cth)
Radiocommunications (Spectrum Licence Allocation—3.4/3.7 GHz Bands) Determination 2023
The Australian Communications and Media Authority makes the following determination under sections 60 and 294 of the Radiocommunications Act 1992.
Dated 22 June 2023
James Cameron
[signed]
Member
Linda Caruso
[signed]
Member/General Manager
Contents
Part 1—Preliminary 1
1............ Name............................................................................................................................. 1
2............ Commencement............................................................................................................. 1
3............ Authority....................................................................................................................... 1
4............ Interpretation................................................................................................................. 2
5............ References to other instruments..................................................................................... 7
6............ Giving documents to the ACMA.................................................................................. 8
7............ Statutory declaration for body corporate........................................................................ 8
8............ Signing or executing documents other than deeds and statutory declarations................ 8
9............ Payments of amounts.................................................................................................... 9
10.......... Giving documents to bidders....................................................................................... 10
Part 2—Allocation of spectrum licences 12
Division 1—How spectrum licences will be allocated 12
11.......... The allocation process................................................................................................. 12
Division 2—General allocation limits 13
12.......... Allocation limits.......................................................................................................... 13
13.......... Applying allocation limits during bidding—assume all bids successful...................... 14
14.......... Disregarding existing authorisations with less than 30% population reach................. 14
15.......... Unused allocation limit................................................................................................ 16
16.......... Meaning of associate and relevant group of persons.................................................. 17
17.......... Affiliation between applicants or bidders.................................................................... 18
18.......... Information relevant to considering whether applicants or bidders are affiliated......... 19
Part 3—Arrangements to be made by the ACMA 20
Division 1—Key settings and deadlines 20
19.......... The ACMA must appoint auction manager................................................................. 20
20.......... The ACMA must set application fee........................................................................... 20
21.......... The ACMA must set application deadline and eligibility deadline............................... 20
22.......... The ACMA must set lot ratings, eligibility point value and certain prices................... 20
23.......... The ACMA must approve forms................................................................................ 21
24.......... The ACMA must provide initial auction information to applicants............................. 21
25.......... The ACMA may vary prices and lot ratings................................................................ 22
Division 2—Advertising the allocation process 23
26.......... Notice advertising allocation process........................................................................... 23
27.......... Applicant information package.................................................................................... 23
Part 4—Applying to participate 25
Division 1—Confidentiality 25
28.......... Meaning of confidential information........................................................................... 25
29.......... Obligation not to disclose confidential information..................................................... 26
30.......... Duration of confidentiality obligation.......................................................................... 26
31.......... Reporting breach of confidentiality.............................................................................. 27
32.......... Notice of breach of confidentiality............................................................................... 27
33.......... Deeds of confidentiality—related persons and contractors.......................................... 27
Division 2—Applying to be registered 29
34.......... Applying to be registered as a bidder.......................................................................... 29
35.......... Application fee not refundable except in certain circumstances................................... 29
36.......... Applicants to notify the ACMA if application information incorrect........................... 30
37.......... Applicant to make statutory declaration about affiliation............................................. 30
38.......... Failure to give statutory declaration about affiliation................................................... 30
Division 3—Eligibility points and leftover lots 31
39.......... Applying for eligibility points and to be allocated leftover lots.................................... 31
40.......... Who is eligible to apply for a leftover lot..................................................................... 31
41.......... Requirement to secure eligibility points....................................................................... 31
42.......... Number of eligibility points secured............................................................................ 33
43.......... Consequence of failing to secure eligibility points....................................................... 34
Division 4—Dealing with affiliations 36
44.......... Procedure if ACMA satisfied applicants are affiliated................................................. 36
45.......... Dealing with affiliation—new applicant...................................................................... 36
46.......... Initial auction information provided to new applicants................................................ 37
Division 5—Dealing with changes to prices or lot ratings 38
47.......... Notice about updating application documents.............................................................. 38
48.......... Updating eligibility nomination form and financial security........................................ 38
49.......... Notice inviting additional applicants to the auction...................................................... 38
50.......... Applying to be registered—additional applicants........................................................ 39
51.......... Initial auction information for additional applicants..................................................... 40
52.......... Statutory declarations and affiliations.......................................................................... 40
Division 6—Withdrawal of applications 42
53.......... Withdrawal of application............................................................................................ 42
Division 7—Registration of bidders 43
54.......... Registration process.................................................................................................... 43
55.......... Register of bidders...................................................................................................... 43
56.......... Bidders to notify the ACMA if register incorrect........................................................ 44
Part 5—Allocation procedures 45
Division 1—Allocation of leftover lots 45
57.......... Allocation of leftover lots............................................................................................ 45
Division 2—General procedures for both auctions 46
58.......... Auction stages............................................................................................................. 46
59.......... Procedures if only one bidder...................................................................................... 46
60.......... Auction rules............................................................................................................... 47
61.......... Auction manager’s discretion to accept entries and bids.............................................. 47
62.......... Action that auction manager may take in exceptional circumstances............................ 48
63.......... Security of the auctions............................................................................................... 48
64.......... Advising winning bidders of their auction results....................................................... 48
65.......... Meaning of winning bidder and winning price............................................................ 49
Division 3—Dealing with affiliations during the allocation period 50
66.......... Affiliation between bidders during allocation period not permitted............................. 50
67.......... Requirement to report affiliation.................................................................................. 50
68.......... Allocation process continues despite possible affiliation............................................. 50
69.......... Consideration of affiliation.......................................................................................... 50
70.......... Statements about affiliations during an auction............................................................ 50
71.......... Notification of affiliation during allocation period....................................................... 51
72.......... Consequence of affiliation before assignment stage.................................................... 51
73.......... Consequence of affiliation for 3.4 GHz auction—apportionment of unused allocation limit 53
Division 4—Procedures relating to the 3.7 GHz auction 54
74.......... Preparation for bidding................................................................................................ 54
75.......... Scheduling of auction rounds...................................................................................... 54
76.......... Pre‑bidding round and first clock round of 3.7 GHz auction...................................... 54
77.......... Results of the 3.7 GHz auction.................................................................................... 55
Division 5—Procedures relating to the 3.4 GHz auction 56
78.......... Recalculation of unused allocation limit....................................................................... 56
79.......... Recalculation of eligibility points................................................................................. 56
80.......... Updating the register................................................................................................... 56
81.......... Scheduling of auction rounds...................................................................................... 56
82.......... Pre‑bidding round and first clock round of 3.4 GHz auction...................................... 57
Division 6—Confirmation of results of allocation process 58
83.......... Notice and refunds to withdrawn applicants................................................................ 58
84.......... Notice and refunds to unsuccessful bidders................................................................ 58
85.......... Advising all bidders of results of allocation process................................................... 58
Division 7—Payment and issue of licences 60
86.......... Spectrum access charge............................................................................................... 60
87.......... Balance of the total winning price................................................................................ 60
88.......... Sufficient eligibility payment—issue of spectrum licence without further payment..... 60
89.......... Payment of balance of total winning price................................................................... 61
90.......... Issue of spectrum licences after payment of balance.................................................... 61
91.......... Default......................................................................................................................... 61
92.......... Publication of allocation results................................................................................... 61
Part 6—Auction rules 63
Division 1—Rules for the primary stage 63
Subdivision A—Application 63
93.......... Application of Division............................................................................................... 63
Subdivision B—Arrangements for primary stage 63
94.......... Bid increment percentage for primary stage................................................................. 63
95.......... Eligibility requirement percentage for primary stage.................................................... 64
96.......... Scheduling of clock rounds......................................................................................... 64
97.......... Recess days................................................................................................................. 65
98.......... Entries by auction manager before pre‑bidding round................................................. 65
99.......... Information available for clock rounds of the primary stage........................................ 65
Subdivision C—Bidding in the primary stage 66
100........ Availability of lots in clock rounds of the primary stage............................................. 66
101........ Pre‑bidding round....................................................................................................... 66
102........ Making bids................................................................................................................ 67
103........ Validity of bids............................................................................................................ 68
104........ Eligibility points.......................................................................................................... 69
105........ Loss of eligibility points for inactivity......................................................................... 70
Subdivision D—Processing of bids 71
106........ Processing of bids....................................................................................................... 71
107........ Processing algorithm................................................................................................... 71
108........ Applying an increase bid............................................................................................. 73
109........ Applying a decrease bid.............................................................................................. 75
Subdivision E—Bringing the primary stage to an end 77
110........ End of clock rounds.................................................................................................... 77
111........ Allocation of lots to primary winners.......................................................................... 77
112........ Determination of primary prices.................................................................................. 78
113........ Results of the primary stage........................................................................................ 78
114........ End of the primary stage.............................................................................................. 78
Division 2—Rules for the secondary stage 79
Subdivision A—Application 79
115........ Application of Division............................................................................................... 79
Subdivision B—Arrangements for secondary stage 79
116........ Bid increment percentage for secondary stage............................................................. 79
117........ Scheduling of rounds.................................................................................................. 80
118........ Recess days................................................................................................................. 80
119........ Entries by auction manager before pre‑bidding round................................................. 80
120........ Information available during rounds of the secondary stage........................................ 81
Subdivision C—Bidding in the secondary stage 82
121........ Availability of lots in rounds of the secondary stage................................................... 82
122........ Availability of lots to particular bidders....................................................................... 82
123........ Exclusion from further participation............................................................................ 83
124........ Pre‑bidding round....................................................................................................... 83
125........ Making bids................................................................................................................ 84
126........ Validity of bids............................................................................................................ 85
127........ Carry forward of certain continue bids........................................................................ 85
Subdivision D—Bringing the secondary stage to an end 86
128........ Conclusion of bidding on a lot.................................................................................... 86
129........ End of rounds of the secondary stage.......................................................................... 87
130........ Allocation of lots to secondary winners...................................................................... 88
131........ Determination of secondary prices.............................................................................. 88
132........ Results of the secondary stage..................................................................................... 88
133........ End of the secondary stage.......................................................................................... 89
Division 3—Rules for the assignment stage 90
Subdivision A—Application 90
134........ Application of Division............................................................................................... 90
Subdivision B—Arrangements for assignment stage 90
135........ Determination of frequency range options................................................................... 90
136........ Auction manager must make frequency range options available.................................. 91
137........ Scheduling of products and rounds............................................................................. 91
Subdivision C—Bidding in the assignment stage 92
138........ Availability of a product for bidding in rounds of the assignment stage...................... 92
139........ Making bids................................................................................................................ 92
140........ Validity of assignment bids......................................................................................... 92
141........ Deemed zero dollar bids.............................................................................................. 93
142........ Assignment rounds in which bidding is not required.................................................. 93
Subdivision D—Bringing the assignment stage to an end 93
143........ Determination of winning assignment bids for an assignment round.......................... 93
144........ Determination of assignment price for an assignment round....................................... 94
145........ 3.4 GHz auction—allocation of leftover lots to assignment winners........................... 95
146........ Assignment of frequency............................................................................................ 95
147........ Determination of total assignment price....................................................................... 95
148........ Results of the assignment stage................................................................................... 95
149........ End of the assignment stage........................................................................................ 96
Part 7—Miscellaneous 97
150........ Unallocated spectrum.................................................................................................. 97
151........ Applicants and bidders must not misuse auction system............................................. 97
152........ The ACMA may obtain information from applicants and bidders............................... 97
153........ Use of information and documents by the ACMA...................................................... 97
154........ The ACMA to provide information to ACCC on request........................................... 98
155........ Retention of eligibility payment or enforcement of deed of financial security for breach of auction procedures 98
156........ Effect of retention on winning bidders........................................................................ 99
157........ Application to Federal Court for return of retained amount......................................... 99
158........ No liability of the ACMA, etc................................................................................... 100
159........ Other rights not affected............................................................................................ 100
160........ Auction manager may delegate functions and powers............................................... 100
Part 1—Preliminary
1 Name
This instrument is the Radiocommunications (Spectrum Licence Allocation—3.4/3.7 GHz Bands) Determination 2023.
2 Commencement
(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information | ||
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. The whole of this instrument | The day after this instrument is registered. | 27 June 2023 |
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.
3 Authority
This instrument is made under sections 60 and 294 of the Radiocommunications Act 1992.
Note 1: To the extent this instrument is made under subsection 60(1) of the Act, it is not disallowable under section 42 of the Legislation Act 2003 (see paragraph 44(2)(b) of the Legislation Act 2003 and item 29 in the table set out in regulation 10 of the Legislation (Exemptions and Other Matters) Regulation 2015). To the extent that this instrument is made under subsection 294(1) of the Act, it is disallowable.
Note 2: The following provisions of this instrument are made under subsection 294(1) of the Act, and all other provisions are made under subsection 60(1) of the Act:
(a) section 9;
(b) paragraphs 22(c) and (d);
(c) paragraphs 25(1)(a) and (c);
(d) section 65;
(e) subsection 72(8);
(f) Division 7 of Part 5;
(g) section 112;
(h) section 131;
(i) sections 143, 144 and 147.
4 Interpretation
Note 1: A number of expressions used in this instrument are defined in the Act, including the following:
(a) ACCC;
(b) ACMA;
(c) frequency band;
(d) licence;
(e) radiocommunications device;
(f) spectrum;
(g) spectrum licence.
Note 2: In this instrument, register has a different meaning to that given to Register by section 5 of the Act.
(1) In this instrument:
3.4/3.7 GHz bands means the following parts of the spectrum:
(a) the 3.4 GHz band;
(b) the 3.7 GHz band.
3.4 GHz auction: see paragraph 11(1)(c).
3.4 GHz band means the part of the spectrum from 3400 MHz to 3575 MHz.
3.4 GHz product has the same meaning as in the marketing plan.
3.7 GHz auction: see paragraph 11(1)(b).
3.7 GHz band means the part of the spectrum from 3700 MHz to 3800 MHz.
3.7 GHz product has the same meaning as in the marketing plan.
ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
ACMA Act means the Australian Communications and Media Authority Act 2005.
ACMA staff has the meaning given by section 3 of the ACMA Act.
ACN has the meaning given by section 9 of the Corporations Act 2001.
Act means the Radiocommunications Act 1992.
affiliated: see section 17.
aggregate existing MHz: see subsection 14(5).
allocation limits: see section 12.
allocation period: see subsection 11(3).
allocation process: see subsection 11(2).
applicant means a person who has applied to become registered as a bidder.
Note: A person may apply under section 34, 45 or 50.
applicant information package: see subsection 27(1).
application deadline: see subsection 21(1).
application fee: see section 20.
application form: see paragraph 23(1)(a).
ARBN has the meaning given by section 9 of the Corporations Act 2001.
area, in relation to a product, means the geographic area of the region for the product.
Note: The regions for the products are set out in the marketing plan.
assignment bid: see subsection 140(2).
assignment bidder: see subsection 139(2).
assignment price: see section 144.
assignment round means a round in the assignment stage for determining the assignment of frequency ranges to the lots of each product that were allocated to a bidder in the primary stage or secondary stage.
assignment stage means the part of an auction:
(a) commencing at the start of the first assignment round of the auction; and
(b) ending immediately after the auction manager provides the results for every assignment round in accordance with section 148.
assignment winner: see subsection 143(4).
associate: see subsection 16(1).
associates form: see paragraph 23(1)(b).
auction means the 3.7 GHz auction or the 3.4 GHz auction.
auction manager: see section 19.
auction system means the system the ACMA makes available to bidders to participate in an auction.
authorised area: see subsection 14(6).
balance of the total winning price: see section 87.
bidder means a person registered by the ACMA as a bidder under section 54.
bid increment percentage:
(a) in relation to the primary stage of an auction—see section 94; or
(b) in relation to the secondary stage of an auction—see section 116.
clock price, for a lot of a product for a clock round, means the sum of the following, rounded up to the nearest hundred:
(a) the opening price for the lots of the product;
(b) the bid increment percentage for the lots of the product multiplied by that opening price.
clock round means a round for bids in the primary stage of an auction.
confidential information: see section 28.
continue bid: see subsection 126(2).
decrease bid has the meaning given by subsection 103(7).
Note: If a bidder with a start demand for the lots of a product for a clock round does not make a valid bid for the clock round, the bidder will be taken to have requested a decrease bid: see paragraph 103(8)(b).
deed of acknowledgement means a deed of acknowledgement form that has been completed and executed by an applicant as a deed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument or with the requirements for executing a deed.
deed of acknowledgement form: see paragraph 23(1)(c).
deed of confidentiality means a deed of confidentiality form that has been completed and executed as a deed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument or with the requirements for executing a deed.
deed of confidentiality form: see paragraph 23(1)(e).
deed of financial security means a deed of financial security form that has been completed and executed as a deed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument or with the requirements for executing a deed.
deed of financial security form: see paragraph 23(1)(d).
demand change has the meaning given by subsection 107(5).
eligibility deadline: see subsection 21(2).
eligibility nomination form: see paragraph 23(1)(f).
eligibility payment: see subsection 41(2).
eligibility points for a bidder at a time: see section 104.
eligibility requirement percentage: see subsection 95(1).
entry, during a pre‑bidding round, means an entry in the auction system made by a bidder under subsection 101(1) or 124(1).
exceed, in relation to an allocation limit, has the meaning given by subsection 12(2).
excess demand: see subsection 107(7).
exit bid: see subsection 126(3).
extended eligibility deadline: see paragraph 25(2)(b).
final clock round: see section 110.
final high bid: see subsection 128(3).
final round, for a lot: see subsection 128(1).
increase bid has the meaning given by subsection 103(5).
last round of the secondary stage: see subsection 129(2).
leftover lot has the same meaning as in the marketing plan.
list of frequency range options includes a set of frequency range options.
lot has the same meaning as in the marketing plan.
lot bandwidth has the same meaning as in the marketing plan.
lot rating for a lot of a product means the lot rating set by the ACMA under paragraph 22(a), as varied (if applicable) under paragraph 25(1)(b).
maintain bid has the meaning given by subsection 103(3).
marketing plan means the Radiocommunications Spectrum Marketing Plan (3.4/3.7 GHz Bands) 2023.
metropolitan product has the same meaning as in the marketing plan.
new application deadline: see paragraph 25(2)(a).
opening price, for a lot of a product for a clock round, means:
(a) for the first clock round—the starting price for a lot of the product; or
(b) for any clock round other than the first clock round—the posted price for a lot of the product for the previous clock round.
Note: For starting prices, see paragraph 22(d) or 25(1)(a).
overlap area: see subsection 14(7).
posted demand, for a bidder for lots of a product for a clock round, has the meaning given by subsection 107(6).
posted price, for a lot of a product for a clock round, has the meaning given by subsection 107(8).
pre‑bidding round, for the primary stage or the secondary stage of an auction, means a round described in paragraph 58(2)(a) (for the primary stage) or 58(3)(a) (for the secondary stage).
Note: See also section 76 for the scheduling of the pre‑bidding round of the primary stage and section 117 for the scheduling of the pre‑bidding round of the secondary stage.
primary price: see section 112.
primary stage means the part of an auction:
(a) commencing at the start of the pre‑bidding round set for the primary stage of the auction under paragraph 76(1)(b) or 82(1)(b); and
(b) ending immediately after the auction manager provides the results for the final clock round in accordance with sections 113 and 114.
primary winner: see subsection 110(3).
processing algorithm: see section 107.
product has the same meaning as in the marketing plan.
pseudorandom means using computer‑generated numbers that satisfy a statistical test for randomness, but are not generated by a truly random physical process.
re‑allocation declaration means the Radiocommunications (Spectrum Re‑allocation—3.4 GHz and 3.7 GHz Bands) Declaration 2022.
regional product has the same meaning as in the marketing plan.
register means the register of bidders maintained by the ACMA under section 55.
related body corporate has the same meaning as in the Corporations Act 2001.
related person, in relation to an applicant or bidder that is a body corporate, means any of the following:
(a) a director or secretary of the applicant or bidder;
(b) an employee of the applicant or bidder;
(c) an employee of a related body corporate that provides services to the applicant or bidder.
relevant group of persons: see subsections 16(3) and (4).
relevant spectrum means the part of the spectrum from 3400 MHz to 3800 MHz.
residual lot: see subsection 115(2).
residual price: see subsection 131(2).
round, for the secondary stage of an auction, means a round for bids in the secondary stage of the auction.
secondary price: see subsection 131(1).
secondary stage means the part of an auction:
(a) commencing with the start of the pre‑bidding round set for the secondary stage of the auction under section 117; and
(b) ending immediately after the auction manager provides the results for the final round of the secondary stage in accordance with sections 132 and 133.
secondary winner: see subsection 128(2).
set price, for a leftover lot, means the price set by the ACMA under paragraph 22(c), as varied (if applicable) under paragraph 25(1)(c).
specified price: see subsection 126(4).
start demand, for a bidder for lots of a product for a clock round:
(a) for the first clock round—has the meaning given by subsection 101(3); and
(b) for a clock round other than the first clock round—means the posted demand of the bidder for the lots of the product for the previous clock round.
starting price for a lot of a product means the price set by the ACMA under paragraph 22(d), as varied (if applicable) under paragraph 25(1)(a).
supply, for lots of a product before the first clock round or for a clock round of the primary stage of an auction, means the number of lots of the product that are available in the primary stage of the auction.
total assignment price: see section 147.
unused allocation limit has the meaning given by section 15.
updated eligibility nomination form: see paragraph 25(2)(c).
winning bidder: see subsection 65(1).
winning price: see subsection 65(2).
working day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory, New South Wales or Victoria.
(2) In this instrument, a reference to a part of the spectrum, a frequency band or a frequency range includes all frequencies that are greater than but not including the lower frequency, up to and including the higher frequency.
Note: This means the lower number in the reference to a part of the spectrum, a frequency band or a frequency range is not included in the part of the spectrum, the frequency band or the frequency range.
(3) In this instrument, a reference to time is a reference to the legal time in Victoria.
5 References to other instruments
In this instrument:
(a) a reference to any other legislative instrument is a reference to that other legislative instrument as in force from time to time; and
(b) a reference to any other kind of instrument or writing is a reference to that other instrument or writing as in force or existing from time to time.
Note 1: For references to Commonwealth Acts, see section 10 of the Acts Interpretation Act 1901; and see also subsection 13(1) of the Legislation Act 2003 for the application of the Acts Interpretation Act 1901 to legislative instruments.
Note 2: All Commonwealth Acts and legislative instruments are registered on the Federal Register of Legislation.
Note 3: See section 314A of the Act.
6 Giving documents to the ACMA
(1) A document may be given to the ACMA under this instrument by:
(a) delivering the document to the physical address specified in the applicant information package; or
(b) emailing the document as an attachment, in accordance with subsection (2), to the email address specified in the applicant information package; or
(c) if the document is an application form—transmitting the document to the ACMA in an electronic format using a webform administered by the ACMA; or
(d) uploading the document to an online database administered by the ACMA, in accordance with subsection (2), but only if:
(i) the document is not an application form; and
(ii) the document is being given by an applicant who gave the application form to the ACMA in the manner mentioned in paragraph (c).
Note: Subsection 41(4) has additional requirements for a deed of financial security given by email or uploaded.
(2) If a document is emailed or uploaded the document must be:
(a) if the document is a statutory declaration, statement under section 70 or deed—in a PDF format or another format approved by the auction manager; or
(b) for any other document—in a Word or PDF format, or another format approved by the auction manager.
(3) The auction manager may approve a format for documents for the purposes of either or both paragraphs (2)(a) and (b).
(4) A deed of financial security may be given to the ACMA under this instrument as one or more deeds of financial security.
(5) If more than one deed of financial security is given to the ACMA for the purposes of a single applicant or bidder, each such deed of financial security must be given a unique identifier.
(6) If a deed of financial security is given to the ACMA under this instrument, it is given to the ACMA on behalf of the Commonwealth.
7 Statutory declaration for body corporate
If this instrument requires a body corporate to make a statutory declaration, the statutory declaration must be made by a director or secretary of the body corporate.
8 Signing or executing documents other than deeds and statutory declarations
(1) A document that is required or permitted to be given to the ACMA or the auction manager under this instrument may be signed or executed electronically if:
(a) the document must be signed or executed; and
(b) the document is not a statutory declaration or a deed.
(2) If:
(a) this instrument permits or requires a person to give the ACMA or the auction manager a document; and
(b) the document is not a statutory declaration or a deed; and
(c) the document must be signed or executed; and
(d) the signature or execution must be witnessed;
then the signature or execution may be witnessed by audio‑visual link, if the person witnessing the signature or execution (the witness):
(e) observes the person signing or executing the document (the signatory) doing so in real time; and
(f) confirms the signature or execution was witnessed by signing the document or a copy of the document; and
(g) is reasonably satisfied that the document the witness signs is the same document, or a copy of the document, signed or executed by the signatory; and
(h) endorses the document, or the copy of the document, with a statement specifying the method used to witness the signature or execution of the signatory.
Note: Other Commonwealth legislation, and State and Territory legislation, may allow for deeds or statutory declarations to be signed or executed electronically, or for the signature or execution of deeds or statutory declarations to be witnessed by audio‑visual link or by other means.
9 Payments of amounts
(1) Except where otherwise specified, this section applies to all amounts paid, or to be paid, to the ACMA under this instrument.
(2) The amount must be paid in Australian currency.
(3) The amount must be paid by bank cheque or electronic transfer.
(4) An amount that is paid by electronic transfer must be paid by any of the following methods:
(a) direct transfer into the bank account that has the following details:
(i) Bank—ANZ Bank;
(ii) Branch—Belconnen;
(iii) BSB number—012‑951;
(iv) Account number—8379 24272;
(v) Account name—ACMA Official Administered Receipts;
(b) by BPAY payment, using the electronic payment scheme called BPAY, operated in cooperation between Australian financial institutions, which enables a person to make a payment as a participant in BPAY, either via telephone or internet access, but only if:
(i) the amount is an application fee and the application form was transmitted using a webform (see paragraph 6(1)(c)); or
(ii) the amount is an eligibility payment and the eligibility nomination form or updated eligibility nomination form was uploaded to an online database (see paragraph 6(1)(d)); or
(iii) the amount is a winning bidder’s balance of the total winning price and, under Division 7 of Part 5, the winning bidder has been notified by the ACMA of the bidder’s balance of the total winning price;
(c) credit card payment into the bank account with the details set out in paragraph (a), but only if:
(i) the amount is an application fee and the application form was transmitted using a webform (see paragraph 6(1)(c)); or
(ii) the amount is an eligibility payment and the eligibility nomination form or updated eligibility nomination form was uploaded to an online database (see paragraph 6(1)(d)); or
(iii) the amount is a winning bidder’s balance of the total winning price and, under Division 7 of Part 5, the winning bidder has been notified by the ACMA of the bidder’s balance of the total winning price.
(5) An amount is taken to have been paid by a deadline specified in this instrument if:
(a) the ACMA receives a bank cheque for that amount on or before the deadline; or
(b) both:
(i) the ACMA receives evidence that an electronic transfer of the full amount was made on or before the deadline (such as a transfer receipt); and
(ii) the amount is received in the ACMA’s bank account no later than 3 working days after the deadline; or
(c) the ACMA receives other evidence which satisfies the ACMA that the person making the payment has taken all reasonable steps to pay the amount on or before the deadline.
(6) An amount due under this instrument is not paid in full if bank charges or government duties imposed on a payment reduce the net payment to less than the amount due.
Note: The effect of this subsection is that an applicant or bidder must add the value of any bank charge or government duty to the amount of a payment.
(7) If an amount payable under this instrument is an amount of dollars and cents, the amount is to be rounded up to the nearest whole dollar.
(8) If an amount is paid, or is to be paid, to the ACMA under this instrument, it is paid, or it is to be paid, to the ACMA on behalf of the Commonwealth.
(9) If an amount is paid, or is to be paid, by the ACMA under this instrument, it is paid, or it is to be paid, by the ACMA on behalf of the Commonwealth.
Note: This section also applies to spectrum access charges payable under section 294 of the Act. As such, this section relates to Division 7 of Part 5 of this instrument and is disallowable under section 42 of the Legislation Act 2003.
10 Giving documents to bidders
(1) If a provision in this instrument requires, authorises or permits the auction manager to give information to a bidder, or to notify a bidder of a matter, whether or not in writing, the auction manager may give the information to the bidder, or notify the bidder of the matter, by using the auction system.
(2) Subsection (1) does not limit any provision of this instrument, and the auction manager is not obliged to give information to a bidder, or notify a bidder of a matter, by using the auction system.
Part 2—Allocation of spectrum licences
Division 1—How spectrum licences will be allocated
11 The allocation process
(1) The procedure for the allocation of spectrum licences in the 3.4/3.7 GHz bands is:
(a) a direct allocation of leftover lots (see Division 1 of Part 5); and
(b) an auction (the 3.7 GHz auction) of the lots of the 3.7 GHz products; and
(c) an auction (the 3.4 GHz auction) of the lots of the 3.4 GHz products; and
(d) as part of the assignment stage of the 3.4 GHz auction, an allocation of any leftover lots that were not directly allocated under Division 1 of Part 5.
(2) The allocation process is the process comprising the steps set out in subsection (1).
(3) The allocation period is the period:
(a) commencing on the eligibility deadline; and
(b) ending immediately after the auction manager provides the results for the allocation process in accordance with section 85.
Division 2—General allocation limits
12 Allocation limits
(1) The allocation of spectrum licences under this instrument must not result in a person exceeding the allocation limit for the area of a metropolitan product or regional product.
(2) A person exceeds the allocation limit for the area of a metropolitan product or regional product if:
(a) the person is allocated a lot or lots of the product under this instrument; and
(b) having regard to subsection (4), the person, or the relevant group of persons that includes the person, is authorised to use, in aggregate, more of the relevant spectrum in all or part of the area of the product than the allocation limit for the area.
Note: Some existing authorisations are disregarded: see subsection (5) of this section, subsection 13(2) and section 14.
Meaning of allocation limit
(3) The allocation limit is:
(a) for the area of a metropolitan product—140 MHz of spectrum; and
(b) for the area of a regional product—160 MHz of spectrum.
Authorisations that are relevant
(4) In determining for the purposes of this section how much relevant spectrum a person is authorised to use in an area at a time, take into account:
(a) if the time is before the end of the 3.7 GHz auction—authorisations to operate radiocommunications devices in a specified part of the relevant spectrum in the area, where those authorisations are in spectrum licences that exist at the time; and
(b) if the time is after the end of the 3.7 GHz auction:
(i) authorisations to operate radiocommunications devices in a specified part of the relevant spectrum in the area, where those authorisations are in spectrum licences that exist at the time; and
(ii) authorisations in spectrum licences to be issued to persons to operate radiocommunications devices specifying the lot bandwidth (expressed in MHz) and area of any lots allocated to those persons in the primary stage or secondary stage (if any) of the 3.7 GHz auction.
Note: For additional rules about determining how bids affect the allocation limit, see section 13.
Authorisations that are not relevant
(5) For the purposes of this section, do not take into account:
(a) authorisations under subsection 68(1) of the Act (about third party use);
(b) apparatus licences and class licences.
13 Applying allocation limits during bidding—assume all bids successful
(1) In applying section 12 at a time during an auction to determine whether a bid, or a number of lots entered in the auction system during the pre‑bidding round of the primary stage of the auction, would result in a person exceeding the allocation limit in an area, assume that each bidder will be allocated the lots described in column 2 of the item of the following table applicable to that time in the auction (and, as a result, will become authorised by spectrum licences to use the lot bandwidth (expressed in MHz) and area of those lots).
| Item | Column 1 Time in auction | Column 2 Assume that the bidder will be issued a spectrum licence for the lot bandwidth (expressed in MHz) and area of the following lots: |
| 1 | the pre‑bidding round of the primary stage of the 3.7 GHz auction | all lots the bidder enters in the auction system under paragraph 101(1)(a) |
| 2 | a clock round in the primary stage of the 3.7 GHz auction | all lots the bidder bids for in the clock round |
| 3 | a round in the secondary stage (if any), of the 3.7 GHz auction | (a) all lots the bidder bids for in the round; and (b) all lots allocated to the bidder in the primary stage of the auction |
| 4 | the pre‑bidding round of the primary stage of the 3.4 GHz auction | all lots the bidder enters in the auction system under paragraph 101(1)(a) |
| 5 | a clock round in the primary stage of the 3.4 GHz auction | all lots the bidder bids for in the clock round (other than a lot of the product known as Regional WA Central Middle (see item 34 of Schedule 2 to the marketing plan)) |
| 6 | a round in the secondary stage (if any), of the 3.4 GHz auction | (a) all lots the bidder bids for in the round (other than a lot of the product known as Regional WA Central Middle (see item 34 of Schedule 2 to the marketing plan)); and (b) all lots allocated to the bidder in the primary stage of the auction (other than a lot of the product known as Regional WA Central Middle) |
Note 1: Lots allocated in the primary stage or secondary stage (if any) of the 3.7 GHz auction are taken into account after the end of the 3.7 GHz auction by subparagraph 12(4)(b)(ii).
Note 2: The effect of this section is modified during the processing of bids: see subsection 108(3).
(2) To avoid doubt, leftover lots are disregarded in applying subsection (1).
14 Disregarding existing authorisations with less than 30% population reach
Scope
(1) This section:
(a) applies in relation to authorisations that are taken into account under subsection 12(4) in applying the allocation limits; and
(b) does not apply during an auction in relation to authorisations that section 13 assumes will be issued to bidders.
Note: If applying this section after the end of the 3.7 GHz auction, authorisations to be issued in relation to lots allocated in the 3.7 GHz auction may be disregarded in relation to an overlap area for a person and a 3.4 GHz product.
Main rule
(2) For the purposes of applying section 12 (allocation limits) in relation to the area of a particular metropolitan or regional product, if:
(a) an authorisation in a spectrum licence issued, or to be issued, to a person to operate radiocommunications devices in a part of the relevant spectrum specifies an area that is, or includes, an overlap area (see subsections (6) and (7)) for the person and area of the product; and
(b) the overlap area is below the significance threshold for the person and area of the product;
then the authorisation is to be disregarded in determining the amount of relevant spectrum the person is authorised to use in that overlap area.
Significance threshold
(3) An overlap area (the test area) is below the significance threshold for the person and the area of a product if:
(a) where the test area is the only overlap area for the person and the area of the product—the population of the test area is less than 30% of the population of the area of the product; or
(b) where there is at least one other overlap area for the person and the area of the product—the sum of the following is less than 30% of the population of the area of the product:
(i) the population of the test area;
(ii) the population of each other overlap area for the person and the area of the product in which the person’s aggregate existing MHz (see subsection (5)) equals or exceeds the person’s aggregate existing MHz in the test area.
(4) The total population of a geographic area is to be determined in accordance with the most recent data in the HCIS—List of Population Data document published by the ACMA on its website, as that document existed at the time this instrument commences.
Note 1: The HCIS—List of Population Data document may be accessed, free of charge, from the ACMA’s website at 2: An area may be described by reference to identifiers referred to in the marketing plan.
Meaning of aggregate existing MHz
(5) The aggregate existing MHz for a person in an area at a time is the aggregate of the amount of relevant spectrum (expressed in MHz) that may be used by the person, or by another person in the same relevant group of persons as the person, in the area:
(a) taking into account authorisations mentioned in subsection 12(4), as at the time; and
(b) not taking into account authorisations or licences mentioned in subsection 12(5); and
(c) disregarding the operation of this section.
Meaning of authorised area
(6) If:
(a) an authorisation to operate radiocommunications devices in a specified part of the relevant spectrum in a specified area is issued to a person; and
(b) all or part of the specified area falls within the area of a particular metropolitan or regional product;
then so much of the specified area as falls within the area of the product is an authorised area for the person, and for each other person in the same relevant group of persons as the person, for the area of the product.
Meaning of overlap area
(7) If there is at least one authorised area for a person and the area of a product (the product area), then the product area comprises 1 or more overlap areas, which are determined by identifying the contiguous area, or combination of contiguous areas, within the product area that achieves the result that each such area meets all of the following requirements:
(a) it falls wholly within an authorised area for the person and the product area;
(b) it does not cover the boundary of any authorised area for the person and the product area;
(c) it does not overlap with any other identified area;
(d) it is no smaller than necessary to ensure all identified areas comply with paragraphs (a) to (c).
15 Unused allocation limit
(1) The unused allocation limit for a person for a metropolitan product or regional product for an auction is the allocation limit for the area of the product, reduced (but not below zero) by the highest amount of spectrum (expressed in MHz) calculated under subsection (2) for the person for the area of the product, or any part of that area, for the auction.
Note: The unused allocation limit is entered on the register of bidders (see section 55) and in the auction system (see section 98). A bid is invalid if it exceeds the unused allocation limit (see paragraph 103(4)(c)).
(2) The amount of spectrum (expressed in MHz) for a person for an area (which may be all or part of the area of the product) for an auction is the aggregate existing MHz for the person for the area, calculated:
(a) immediately before the start of the pre‑bidding round of the primary stage of the auction; and
(b) disregarding any authorisations that are disregarded by section 14 and any authorisations not taken into account under subsection 12(5).
3.4 GHz auction—apportionment of unused allocation limit where bidders are affiliated
(3) If section 73 (about affiliations that affect the unused allocation limit for the 3.4 GHz auction) applies to 2 or more persons, the unused allocation limit for a metropolitan product or regional product for each of those bidders for the 3.4 GHz auction is calculated by:
(a) starting with the limit calculated for those bidders under subsection (1) of this section for the product and the auction; and
(b) apportioning that limit between the affiliated bidders in the manner determined under section 73.
16 Meaning of associate and relevant group of persons
(1) Each of the following is an associate in relation to a person:
(a) in relation to a body corporate:
(i) a director or secretary of the body;
(ii) a related body corporate;
(iii) a director or secretary of a related body corporate;
(iv) an individual who controls at least 15% of the voting power or holds at least 15% of the issued shares in the body;
(b) in relation to an individual:
(i) the individual’s spouse;
(ii) the individual’s de facto partner within the meaning of the Acts Interpretation Act 1901;
(iii) a body corporate in which the individual controls at least 15% of the voting power or holds at least 15% of the issued shares;
(iv) where the individual is a director or secretary of a body corporate—the body corporate and any related body corporate;
(c) in relation to any person (the first person)—any other person (other than the Commonwealth when represented by the ACMA) who is party to a relevant agreement with the first person that either or both:
(i) is for the use by one party to the agreement of spectrum licensed to another party to the agreement under a spectrum licence for a part of the spectrum referred to in the re‑allocation declaration;
(ii) relates to the acquisition of a spectrum licence for a part of the spectrum referred to in the re‑allocation declaration.
(2) For the purposes of paragraph (1)(c), a relevant agreement means an agreement, arrangement or understanding:
(a) whether formal or informal, or partly formal and partly informal; and
(b) whether written or oral, or partly written and partly oral; and
(c) whether or not having legal or equitable force and whether or not based on legal or equitable rights;
but does not include:
(d) a roaming services agreement or an agreement between carriers provided for by or under the Telecommunications Act 1997 or Part XIC of the Competition and Consumer Act 2010; or
(e) an agreement that, to the extent it deals with a part of the spectrum referred to in the re‑allocation declaration, deals only with spectrum associated with left‑over lots.
(3) In this instrument, relevant group of persons means:
(a) a person and all associates of that person; or
(b) subject to subsection (4), any 2 or more groups referred to in paragraph (a) that have at least one member in common.
(4) For the purposes of paragraph (3)(b), an individual is taken not to be a member in common between 2 or more groups that are comprised of a person (the relevant person) and the associates of that relevant person where all of the following apply:
(a) the individual is providing services as a company secretary (the company secretarial services) to one or more related bodies corporate of the relevant person in each group;
(b) the individual is providing the company secretarial services through a person or entity (the third party service provider) that:
(i) is not a member of any of the groups; and
(ii) carries on a business for the provision of professional services, including company secretarial services; and
(iii) has, in the ordinary course of carrying on that business, been separately and independently engaged by an entity within each of the related groups, under a contract or other legally binding arrangement, to provide the company secretarial services;
(c) the individual is not, other than by reason of providing the company secretarial services, an associate of any of the relevant persons;
(d) each of the related bodies corporate to which the individual is providing the company secretarial services is incorporated outside Australia.
(5) In this section:
carrier has the same meaning as in the Telecommunications Act 1997.
public mobile telecommunications service has the same meaning as in the Telecommunications Act 1997.
roaming services agreement means an agreement between 2 or more carriers for the principal purpose of enabling the supply of public mobile telecommunications services by one of those other carriers, in geographic locations where another of those carrier’s public mobile telecommunications services are not available.
17 Affiliation between applicants or bidders
Two applicants or bidders are affiliated if the applicants or bidders are in the same relevant group of persons.
Note: Paragraph 16(3)(b) and this section mean that 2 applicants or bidders are affiliated if they have an associate in common. However, see subsection 16(4).
18 Information relevant to considering whether applicants or bidders are affiliated
(1) When considering whether 2 or more applicants or bidders are affiliated, the ACMA must have regard to the following:
(a) completed application forms;
(b) updated application forms;
(c) statutory declarations and statements given in accordance with this instrument.
(2) The ACMA may have regard to any other information that it considers relevant.
Part 3—Arrangements to be made by the ACMA
Division 1—Key settings and deadlines
19 The ACMA must appoint auction manager
(1) The ACMA must, in writing, appoint a person (the auction manager) to manage the allocation process.
(2) The person appointed as the auction manager must be:
(a) a member within the meaning of the ACMA Act; or
(b) a member of the ACMA staff; or
(c) a person whose services are made available for the purposes of the ACMA under paragraph 55(1)(a) of the ACMA Act.
20 The ACMA must set application fee
Before it publishes a notice under subsection 26(1), the ACMA must, in writing, set a fee (application fee) to be paid by applicants.
Note: Section 35 is about when the application fee is refundable.
21 The ACMA must set application deadline and eligibility deadline
(1) Before it publishes a notice under subsection 26(1), the ACMA must, in writing, set a date and time (application deadline) before which:
(a) completed application forms, completed associates forms, completed deeds of acknowledgement and completed deeds of confidentiality by applicants must be received by the ACMA; and
(b) the application fee must be paid to the ACMA.
(2) Before it publishes a notice under subsection 26(1), the ACMA must, in writing, set a date and time (eligibility deadline) before which:
(a) completed eligibility nomination forms must be received by the ACMA; and
(b) eligibility payments must be made to the ACMA, or deeds of financial security must be given to the ACMA, or a combination of both.
22 The ACMA must set lot ratings, eligibility point value and certain prices
The ACMA must set the following:
(a) a rating (expressed as a number of eligibility points) (the lot rating) that represents an estimate of the value of each lot of a product in the allocation process;
(b) the dollar value of each eligibility point for the allocation process;
(c) the set price for each leftover lot;
(d) the price for a lot of each product for the first clock round (the starting price).
Note: Paragraphs (c) and (d) relate to Division 7 of Part 5 of this instrument for the purposes of section 294 of the Act, and are disallowable under section 42 of the Legislation Act 2003.
23 The ACMA must approve forms
(1) After setting the amounts in section 22, the ACMA must approve the following forms:
(a) a form (application form) for applying to participate in the allocation process;
(b) a form (an associates form) for applicants to set out information about their associates;
(c) a form (deed of acknowledgement form) that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument;
(d) a form (deed of financial security form) for securing an applicant’s eligibility points;
(e) a form (deed of confidentiality form) that includes a statement to the effect that the person giving the deed agrees not to disclose confidential information before section 29 ceases to apply to the person;
(f) a form (an eligibility nomination form) for applying for eligibility points and to be allocated leftover lots;
(g) one or more forms for the purposes of section 37, subsection 45(5) and sections 52 and 70 (which are about statutory declarations and statements).
Note: A form approved under this subsection may contain other material in addition to that expressly required by this subsection.
Requirements for eligibility nomination form
(2) A form approved for the purposes of paragraph (1)(f) or 25(2)(c) must include:
(a) a guide to securing eligibility points; and
(b) a guide to applying to be directly allocated a leftover lot.
24 The ACMA must provide initial auction information to applicants
As soon as practicable after the application deadline, the ACMA must give each applicant the following:
(a) information about using the auction system;
(b) information about making entries in the auction system during the pre‑bidding round for the primary stage and secondary stage;
(c) information about making bids in the auction system during the primary stage, secondary stage and assignment stage.
25 The ACMA may vary prices and lot ratings
Varying starting prices, lot ratings and set prices
(1) Not less than 5 working days before the eligibility deadline, the ACMA may do one or more of the following:
(a) vary a starting price set under paragraph 22(d);
(b) if a starting price is varied, vary a lot rating set under paragraph 22(a);
(c) vary a set price for a leftover lot set under paragraph 22(c).
Note 1: Varying a starting price or a set price relates to Division 7 of Part 5 of this instrument for the purposes of section 294 of the Act. Accordingly, paragraphs (1)(a) and (c) are disallowable under section 42 of the Legislation Act 2003.
Note 2: See Division 5 of Part 4 for the rules about updating application documents and inviting new applications if the ACMA exercises this power.
(2) If the ACMA exercises a power under subsection (1), the ACMA must:
(a) set a time and date to replace the application deadline (new application deadline); and
(b) set a time and date to replace the eligibility deadline (extended eligibility deadline); and
(c) approve a form (an updated eligibility nomination form) for applying for eligibility points and to be allocated leftover lots.
(3) The new application deadline must be at least 20 working days after the day the ACMA exercised the power.
(4) The extended eligibility deadline must be at least 30 working days after the new application deadline.
(5) The updated eligibility nomination form must comply with subsection 23(2).
(6) As soon as practicable after exercising a power under subsection (1), the ACMA must publish on its website a notice setting out the following:
(a) if a starting price was varied—the details of the variation of the starting price;
(b) if a lot rating was varied—the details of the variation of the lot rating;
(c) if the set price for a leftover lot was varied—the details of the variation of the set price;
(d) the date and time of the new application deadline;
(e) the date and time of the extended eligibility deadline.
Division 2—Advertising the allocation process
26 Notice advertising allocation process
(1) The ACMA must publish on its website a notice that:
(a) describes the parts of the spectrum to be allocated; and
(b) gives a brief description of the way the allocation process will be conducted; and
(c) states that the allocation process will be conducted in accordance with this instrument; and
(d) invites persons to apply to the ACMA to take part in the allocation process; and
(e) states the application deadline; and
(f) states the eligibility deadline; and
(g) states that applications may only be withdrawn before the eligibility deadline or the extended eligibility deadline (if there is one); and
(h) states that the applicant information package for the allocation process can be obtained from the ACMA’s website at the electronic address given in the notice.
(2) If a matter mentioned in the notice changes, the ACMA must publish another notice giving details of the change on its website.
(3) The ACMA may publish the information required by subsections (1) and (2) by additional methods, and may publish other information about the allocation process by any method.
27 Applicant information package
(1) The applicant information package must contain the following documents and information:
(a) the re‑allocation declaration;
(b) the marketing plan;
(c) this instrument;
(d) a guide to the allocation process;
(e) the starting price for the lots of each product in the allocation process;
(f) the dollar value of each eligibility point for the allocation process;
(g) the lot rating for the lots of each product in the allocation process;
(h) the set price for each leftover lot;
(i) the amount of the application fee;
(j) the application deadline, and information about the circumstances in which there may be a new application deadline;
(k) each form approved by the ACMA under subsection 23(1);
(l) the eligibility deadline, and information about the circumstances in which there may be an extended eligibility deadline;
(m) advice that the eligibility deadline, or the extended eligibility deadline (if there is one), is the last time for withdrawal from the allocation process;
(n) the physical address for giving documents to the ACMA;
(o) the email address for giving documents to the ACMA;
(p) the online web address for the giving of documents to the ACMA.
(2) The applicant information package may also contain other information about the allocation process.
(3) The ACMA must publish the applicant information package on its website as soon as practicable after notice of the allocation process is published under subsection 26(1).
(4) If the ACMA makes any change to the contents of the applicant information package after it is published, the ACMA must publish a notice giving details of the change on its website.
Part 4—Applying to participate
Division 1—Confidentiality
28 Meaning of confidential information
(1) Each of the following is confidential information for an applicant or bidder:
(a) documents the applicant or bidder has given to the ACMA for the purposes of the allocation process;
(b) information provided to the applicant under any of the following sections, for the purpose of participating in the allocation process:
(i) section 24 (auction information for applicants);
(ii) section 46 (auction information for new applicants);
(iii) section 51 (auction information for additional applicants when starting prices change);
(c) information provided to the bidder under paragraph 54(3)(c) (information about which leftover lots have been taken up);
(d) information provided to the bidder under paragraphs 54(3)(d) and (e) (information about using the auction system), for the purpose of participating in the allocation process;
(e) for a bidder:
(i) the bidder’s start demand for a clock round of the primary stage of an auction;
(ii) the bidder’s posted demand for a clock round of the primary stage of an auction;
(iii) a bid made by the bidder in an auction;
(iv) the bidder’s eligibility points at any time in the allocation period;
(f) a proposed bid by the applicant or bidder, or a bid under consideration by the applicant or bidder;
(g) a proposed start demand of the applicant or bidder, or a proposed start demand under consideration by the applicant or bidder;
(h) the bidding strategy of the applicant or bidder;
(i) the amount the applicant or bidder is willing to pay for:
(i) a lot or combination of lots; or
(ii) a part or parts of the spectrum in the 3.4/3.7 GHz bands;
(j) information about the terms of agreements, or possible future agreements, affecting the use of relevant spectrum, to the extent the agreements:
(i) relate to authorisations that are, or would be, permitted by section 68 of the Act; or
(ii) relate to assignments made, or to be made, under section 85 of the Act; or
(iii) deal with spectrum that is available in this allocation process;
(k) information that, if disclosed, could be reasonably expected to affect, or be capable of affecting:
(i) bids made or proposed to be made by another applicant or bidder; or
(ii) start demands or proposed start demands of another applicant or bidder; or
(iii) the bidding strategy of another applicant or bidder;
(l) information that, if disclosed, could be reasonably expected to affect, or be capable of affecting, the outcome of the allocation process.
(2) Despite subsection (1), the following are not confidential information for a bidder:
(a) the mere fact that the bidder applied (or did not apply) to be directly allocated a leftover lot under Division 1 of Part 5;
(b) the mere fact that the bidder was (or was not) directly allocated a leftover lot under that Division.
29 Obligation not to disclose confidential information
(1) Each of the following persons must not, either directly or indirectly, disclose confidential information of an applicant or bidder to any person:
(a) the applicant or bidder;
(b) a related person of the applicant or bidder;
(c) a contractor of an applicant or bidder.
(2) Subsection (1) does not prevent a person disclosing information:
(a) for the purpose of obtaining advice relating to the allocation process from a person in the person’s professional capacity; or
(b) for the purpose of obtaining finance to make a payment in relation to the allocation process; or
(c) to the ACMA; or
(d) for an applicant or bidder—to a related person of the applicant or bidder; or
(e) for a related person of an applicant or bidder—to the applicant or bidder, or to another related person of the same applicant or bidder; or
(f) for a contractor of an applicant or bidder—to the applicant or bidder, or to a related person of the same applicant or bidder; or
(g) for the purpose of announcing or publishing that the applicant or bidder is participating in the allocation process; or
(h) as required or authorised by this instrument; or
(i) as otherwise required by law.
Note: In some cases, the person to whom the information is disclosed may become a related person or contractor who is required to give a deed of confidentiality to the ACMA: see section 33.
(3) Subsection (1) does not prohibit a person disclosing information if the information is already publicly available.
30 Duration of confidentiality obligation
(1) Section 29 applies in relation to a person until the ACMA announces or publishes the information mentioned in subsection 92(1) (information about the allocation results).
Note: The ACMA announces or publishes the information mentioned in subsection 92(1) only after winning bidders for the allocation process are notified in accordance with subsection 92(2).
(2) However, if an applicant withdraws its application, section 29 applies in relation to the applicant, a related person of the applicant, or a contractor of the applicant until the applicant is notified by the ACMA under section 83 that the applicant’s confidentiality obligation has ended.
31 Reporting breach of confidentiality
An applicant or bidder, or a related person of an applicant or bidder, or a contractor of an applicant or bidder, who:
(a) discloses confidential information in breach of section 29; or
(b) receives information that is confidential information for another applicant or bidder;
must report the disclosure or receipt in writing to the ACMA as soon as possible, but no later than 2 working days after becoming aware the disclosure or receipt has occurred.
32 Notice of breach of confidentiality
(1) This section applies if the ACMA reasonably believes that an applicant or bidder, or a related person of the applicant or bidder, or a contractor of the applicant or bidder, may have:
(a) disclosed confidential information in breach of section 29; or
(b) received confidential information as a result of a breach of section 29.
(2) In relation to the applicant or bidder whose confidential information has been disclosed, the ACMA must:
(a) notify, in writing, the applicant or bidder, giving details of the matter; and
(b) ask the applicant or bidder to make submissions about the matter; and
(c) state a deadline for the receipt of submissions that is no more than 5 working days after the date of the request.
(3) If the ACMA forms the belief before the end of the allocation period, the ACMA is not required to act under subsection (2) before the allocation period ends, but must act under that subsection as soon as practicable after the allocation period ends.
33 Deeds of confidentiality—related persons and contractors
(1) A person must give the ACMA a deed of confidentiality if:
(a) the person is a related person of an applicant or bidder; and
(b) the person has knowledge of confidential information of the applicant or bidder; and
(c) the person is either or both of the following:
(i) an employee of the applicant or bidder;
(ii) an employee of a related body corporate of the applicant or bidder that provides services to the applicant or bidder.
(2) A person must give the ACMA a deed of confidentiality if:
(a) the person is a contractor of an applicant or bidder; and
(b) the person has knowledge of confidential information of the applicant or bidder.
(3) Subsection (2) does not apply to a contractor engaged:
(a) for the sole purpose of providing, in the contractor’s professional capacity, advice relating to the allocation process; or
(b) for the sole purpose of obtaining finance to make a payment in relation to the allocation process.
(4) If a person to whom subsection (1) or (2) applies receives knowledge of the applicant’s confidential information before the application deadline or new application deadline (if there is one), the person must give the ACMA the deed of confidentiality before the relevant deadline.
Note: A deed of confidentiality form must be provided by the ACMA as part of the applicant information package published on the ACMA’s website: see paragraphs 26(1)(h) and 27(1)(k).
Division 2—Applying to be registered
34 Applying to be registered as a bidder
(1) A person who wishes to do one or more of the following may apply to become registered as a bidder in the allocation process:
(a) bid in the 3.7 GHz auction;
(b) bid in the 3.4 GHz auction;
(c) be directly allocated a leftover lot.
Note: A person who is registered as a bidder in the allocation process may, subject to allocation limits and eligibility points, bid in either or both of the 3.4 GHz auction and the 3.7 GHz auction.
(2) A person applies by doing all of the following before the application deadline:
(a) giving the ACMA a completed application form;
(b) giving the ACMA a completed associates form;
(c) giving the ACMA a deed of acknowledgement executed by the applicant;
(d) giving the ACMA a deed of confidentiality executed by the applicant;
(e) paying the application fee.
Note 1: For information on how an application fee must be paid, see section 9.
Note 2: An applicant may withdraw its application before the eligibility deadline or extended eligibility deadline (if there is one): see subsection 53(1).
Updating documents
(3) An applicant who has given the ACMA a document covered by paragraph (2)(a), (b), (c) or (d) before the application deadline may give the ACMA an updated, additional or replacement version of the document at any time until the application deadline, but not after the application deadline.
35 Application fee not refundable except in certain circumstances
(1) Subject to subsection (2), an application fee paid by an applicant or bidder under this instrument is not refundable in any circumstances, including:
(a) if the applicant withdraws from the allocation process; or
(b) if the applicant or bidder is taken to withdraw from the allocation process; or
(c) if the applicant or bidder is not permitted to make a bid in the 3.4 GHz auction or the 3.7 GHz auction.
(2) An application fee paid by an applicant under this instrument is refundable if both the following occur:
Tiebreaker process
(4) For item 4 of the table, the bidder will be selected from the bidders who made the tied exit bids using a pseudorandom process.
Unallocated lots
(5) If no valid bids are made on the lot, the lot is not allocated in the secondary stage.
Note: See section 150.
129 End of rounds of the secondary stage
(1) Subject to subsection (3), the rounds of the secondary stage will end immediately after the last round of the secondary stage.
Meaning of last round of the secondary stage
(2) A round in the secondary stage is the last round of the secondary stage if:
(a) the round was a round for bids on one or more lots; and
(b) after the round, the final round for all of the lots available in the secondary stage has occurred.
Exception for tiebreaker process
(3) If:
(a) the final round for a lot is also the last round of the secondary stage; and
(b) the pseudorandom process referred to in subsection 128(4) must be conducted to determine the final high bid for one or more of those lots;
then the rounds of the secondary stage end immediately after that process or those processes have been conducted.
Auction manager must announce end of rounds of secondary stage
(4) After the rounds of the secondary stage end, the auction manager must tell each bidder, using the auction system, that the rounds of the secondary stage have ended and that the auction will progress to the assignment stage.
130 Allocation of lots to secondary winners
The secondary winner for a lot is allocated that lot.
Note: This section is subject to section 72 (about affiliations that ACMA notifies during the primary stage or secondary stage of an auction).
131 Determination of secondary prices
(1) The secondary price to be paid by a secondary winner for all residual lots allocated to the secondary winner in the secondary stage is the sum of the residual prices of all the residual lots allocated to the secondary winner.
Note: This section relates to Division 7 of Part 5 of this instrument for the purposes of section 294 of the Act and is disallowable under section 42 of the Legislation Act 2003.
(2) The residual price for a residual lot of a product in the secondary stage is:
(a) if there was only one valid bid on the lot—the starting price for the lot; or
(b) if there was more than one valid bid on the lot—the highest bid made for the lot by any bidder, during any round of the secondary stage, other than the final high bid.
132 Results of the secondary stage
(1) After the secondary winners and secondary prices are determined, the auction manager must tell each secondary winner, in writing:
(a) the lots of each product allocated to the secondary winner; and
(b) the residual price for the allocated lot of each product and the secondary price to be paid by the secondary winner for all allocated lots.
(2) After the secondary winners and secondary prices are determined, the auction manager must tell all bidders in writing:
(a) the total number of secondary winners allocated at least one residual lot; and
(b) which residual lots were allocated.
133 End of the secondary stage
(1) The auction manager must tell each primary winner and each secondary winner, the sum of:
(a) the primary price; and
(b) the secondary price;
for all the allocated lots, in the primary stage or secondary stage, of each product of that winner.
(2) Immediately after the auction manager provides the results in accordance with section 132, the auction manager must tell each bidder that the secondary stage is completed.
Division 3—Rules for the assignment stage
Subdivision A—Application
134 Application of Division
(1) This Division applies to the 3.7 GHz auction and the 3.4 GHz auction.
Note: Subsection 60(3) requires the assignment stage of an auction to be conducted in accordance with this Division.
(2) For each auction, this Division applies to the following:
(a) each lot allocated to a bidder in the primary stage of the auction;
(b) each lot allocated to a bidder in the secondary stage (if any) of the auction;
(c) for the 3.4 GHz auction—each leftover lot (if any) not directly allocated under Division 1 of Part 5 of this instrument.
Note: Because of paragraph (2)(c), some provisions of this Division are relevant only to the 3.4 GHz auction.
(3) This Division provides for:
(a) the assignment of frequency ranges to lots referred to in paragraphs (2)(a) and (b); and
(b) for the 3.4 GHz auction—an allocation of leftover lots referred to in paragraph (2)(c).
Subdivision B—Arrangements for assignment stage
135 Determination of frequency range options
(1) For each product at least one lot of which was allocated to a bidder in the primary stage or secondary stage (if any) of the auction, the auction manager must determine the list of frequency range options available to the bidder that complies with this section.
(2) The list of frequency range options must include every possible contiguous frequency range corresponding in bandwidth to the total lot bandwidth of the lots of the product allocated to the bidder in an earlier stage of the auction.
(3) If a bidder is participating in a given assignment round for more than one product, the auction manager may determine frequency range options available to the bidder that deal with the products as a group, providing the requirement of subsection (2) is met for each individual product in the group.
3.4 GHz auction—adjustment of options if assignment stage includes leftover lots
(4) Subsection (5) applies to the 3.4 GHz auction, if one or more leftover lots of a product were not directly allocated under Division 1 of Part 5 of this instrument.
(5) Despite subsection (2), each frequency range option for the product that is the adjacent product (within the meaning of the marketing plan) to a leftover lot that was not directly allocated must:
(a) include the frequency of the leftover lot; and
(b) correspond in bandwidth to the sum of:
(i) the total lot bandwidth of the lots of the product allocated to the bidder in an earlier stage of the auction; and
(ii) 2.5 MHz (which is the lot bandwidth for the leftover lots).
Note: The winning bidder for this frequency range option will be allocated the leftover lot under section 145.
136 Auction manager must make frequency range options available
At least 24 hours before the start of the first assignment round, the auction manager must provide each bidder participating in the assignment stage with the list of frequency range options available to the bidder in each of the assignment rounds for the lots of a product that were allocated to the bidder in the primary stage or secondary stage.
137 Scheduling of products and rounds
(1) After the completion of the primary stage and secondary stage (if any), the auction manager must announce:
(a) the anticipated start time and end time of each assignment round; and
(b) the product or products that will be the subject of each assignment round.
(2) There must be at least 48 hours between the completion of the secondary stage (or the primary stage, if there is no secondary stage) and the start of the first assignment round.
(3) Assignment rounds must start and end between 9.00 am and 5.00 pm on working days.
(4) The scheduling of assignment rounds between those times is at the auction manager’s discretion.
(5) There is no minimum or maximum length for an assignment round, and no minimum or maximum length for the interval between 2 rounds.
(6) The auction manager has discretion over the duration of assignment rounds.
(7) The auction manager must set the order in which the products are the subject of assignment rounds.
(8) A product must not be the subject of more than one assignment round, but 2 or more products may be the subject of one assignment round.
(9) The auction manager may, at any time, modify the schedule of assignment rounds. If this occurs, the auction manager must tell all bidders in writing of the change as soon as practicable.
Subdivision C—Bidding in the assignment stage
138 Availability of a product for bidding in rounds of the assignment stage
In a round of the assignment stage, the only products available for bidding are the product or products that the auction manager has announced will be the subject of the assignment round (see paragraph 137(1)(b)).
Note: In the assignment stage, there is only one round for each product.
139 Making bids
(1) A bidder is entitled to bid in an assignment round if, in the primary stage or secondary stage (if any), the bidder was allocated at least one lot of a product that is the subject of the assignment round.
(2) A bidder who is entitled to bid in an assignment round is an assignment bidder in the round.
(3) A bid in the assignment stage consists of:
(a) the frequency range option that is being bid for; and
(b) a bid price for the frequency range option that is a multiple of one hundred dollars.
Note: For when bidding for a product is not required, see section 142.
(4) For each option in the list of frequency range options determined for a bidder, the bidder may (subject to subsection (6)) make one bid.
(5) Except where subsection 61(1) or (2) applies, a bid is taken to have been made in an assignment round when the bid has passed data validation checks that are performed by the auction system.
Note: Subsection 61(1) allows the auction manager to permit an assignment bid to be made other than by using the auction system, in certain circumstances. Subsection 61(2) allows the auction manager to permit an assignment bid to be made after an assignment round has ended, in certain circumstances.
(6) A bidder may change, delete or replace a bid in the auction system during an assignment round as often as desired, subject to the data validation checks that are performed by the auction system. The bid that will be treated as binding for a bidder is the bid in the auction system at the end time of the assignment round.
140 Validity of assignment bids
(1) A bid in the assignment stage is valid if:
(a) except where subsection 61(2) applies, the assignment bid is received between the start time and end time of the assignment round for the product or group of products; and
(b) the bid is for a frequency range option for lots of a product that were allocated to the bidder in the primary stage or secondary stage (if any) of the auction; and
(c) the bid is for a frequency range option in the list of frequency range options determined for the bidder under section 135; and
(d) the bid price is a multiple of one hundred dollars.
Note: Subsection 61(2) allows the auction manager to permit an assignment bid to be made after an assignment round has ended, in certain circumstances.
(2) A valid bid in the assignment stage is an assignment bid.
Note: A bidder may also be taken to have made an assignment bid, see sections 141 and 142.
141 Deemed zero dollar bids
If a bidder does not make an assignment bid for a frequency range option determined for the bidder under section 135, the bidder is treated as having made an assignment bid for the option with a bid price of zero dollars.
142 Assignment rounds in which bidding is not required
(1) This section applies if, for an assignment round for a product, there is only one frequency range option available to each assignment bidder (an affected bidder) who was allocated at least one lot of the product.
(2) If this section applies:
(a) bidders do not make bids using the auction system in the assignment round for the product; and
(b) instead, each affected bidder is treated as having made an assignment bid with a bid price of zero dollars for the only frequency range option available to the bidder.
(3) If this section applies, the auction manager must, at least 24 hours before the start of the first assignment round, inform each affected bidder using the auction system of the effect of subsection (2).
Subdivision D—Bringing the assignment stage to an end
143 Determination of winning assignment bids for an assignment round
(1) After an assignment round ends, the auction manager must tell each assignment bidder in the round the frequency range option in its winning assignment bid.
Note: This section relates to Division 7 of Part 5 of this instrument for the purposes of section 294 of the Act, and is disallowable under section 42 of the Legislation Act 2003.
(2) A winning assignment bid for a product for an assignment round is an assignment bid in the combination of assignment bids for the assignment round that meets the following requirements:
(a) only one assignment bid is selected from each assignment bidder for the assignment round;
(b) the frequency ranges included in any pair of winning assignment bids for a product, or group of a products, do not overlap;
(c) the sum of the bid prices in the assignment bids is maximised;
(d) if any lots of a product were not allocated in the primary stage or secondary stage (if any), the unassigned frequency range that will result from those unallocated lots is a contiguous frequency range.
(3) If more than one combination of assignment bids satisfies subsection (2), the combination that is used to determine the winning assignment bids will be selected using a pseudorandom process.
(4) The assignment winner for a frequency range for a product for an assignment round is the assignment bidder whose winning assignment bid was for that frequency range.
144 Determination of assignment price for an assignment round
(1) After the end of an assignment round, the auction manager must tell each assignment winner in the round the assignment price for its winning assignment bid.
Note: This section relates to Division 7 of Part 5 of this instrument for the purposes of section 294 of the Act, and is disallowable under section 42 of the Legislation Act 2003.
(2) The assignment price for a winning assignment bid is the price determined by the auction manager in accordance with this section.
(3) The assignment price for a winning assignment bid:
(a) must not exceed the bid price for the bid; and
(b) may be zero; and
(c) if there is only one assignment bidder in the assignment round—must be zero.
(4) Subject to paragraphs (3)(a) and (c), a set of assignment prices in the assignment round must be selected so that:
(a) there is no alternative assignment bidder, or group of assignment bidders, who (based on their assignment bids) would pay more than any assignment winner or group of assignment winners, disregarding any assignment bids that could not form part of a combination of assignment bids that satisfies subsection 143(2); and
(b) if more than one set of assignment prices satisfies paragraph (a)—the sum of the assignment prices is also minimised; and
(c) if more than one set of assignment prices satisfies paragraphs (a) and (b)—it is the solution to the formula in subsection (5).
(5) For paragraph (4)(c), the formula is:
subject to satisfying paragraphs (4)(a) and (4)(b),
where:
| is a set of assignment prices. |
| is the index of each assignment bidder (j) in the set of all assignment bidders participating in the assignment round (J). |
| is the set of prices the assignment bidders’ allocated lots would have had at the starting prices for the lots. |
| is the set of Vickrey prices for the assignment bidders, the price for each bidder j being: (a) the sum of bid prices for the combination of assignment bids that would have been selected under subsection 143(2) if bidder j had made assignment bids of zero dollars for every frequency range option; less (b) the sum of bid prices for all other winning assignment bids in the assignment round. |
Note: For starting prices, see paragraphs 22(d) and 25(1)(a).
(6) The assignment price for a winning assignment bid must be rounded to the nearest hundred dollars.
145 3.4 GHz auction—allocation of leftover lots to assignment winners
(1) This section applies to the 3.4 GHz auction, if one or more leftover lots of a product were not directly allocated under Division 1 of Part 5 of this instrument.
(2) The assignment winner of a frequency range option that includes the frequency range of a leftover lot (see subsection 135(5)) is allocated the leftover lot.
146 Assignment of frequency
A lot or lots allocated to a bidder in the primary stage or secondary stage (if any) is assigned the frequency range specified in the bidder’s winning assignment bid for that product (not including any part of that frequency range that is the frequency range of a leftover lot).
147 Determination of total assignment price
The total assignment price to be paid by an assignment winner for the assignment of a frequency range or frequency ranges to lots of a product or group of products in the assignment stage is the sum of the assignment prices for all the assignment winner’s winning assignment bids.
Note: This section relates to Division 7 of Part 5 of this instrument for the purposes of section 294 of the Act, and is disallowable under section 42 of the Legislation Act 2003.
148 Results of the assignment stage
After the end of all assignment rounds, the auction manager must tell each assignment winner in writing:
(a) the frequency ranges assigned to the lots of each product that were allocated to the assignment winner in the primary stage or secondary stage (if any); and
(b) any assignment price for the frequency ranges assigned; and
(c) for the 3.4 GHz auction—the leftover lot or lots (if any) allocated to the assignment winner under section 145.
149 End of the assignment stage
The assignment stage is complete when:
(a) all assignment rounds have been conducted; and
(b) the auction manager has, under section 148, notified all assignment winners of the results of every assignment round; and
(c) for the 3.4 GHz auction—the auction manager has notified each assignment winner who has been allocated a leftover lot in accordance with paragraph 148(c).
Part 7—Miscellaneous
150 Unallocated spectrum
(1) This section applies to parts of the spectrum that are available in the allocation process but are:
(a) not allocated under Division 1 of Part 5, or in the primary stage, secondary stage (if any) or (for the 3.4 GHz auction) in the assignment stage of an auction; or
(b) taken to be unallocated under section 72 (about consequence of affiliation) or 156 (about retention of eligibility payment); or
(c) not allocated as a result of section 91 (about default).
(2) The spectrum may be later made available for allocation by a procedure to be determined by the ACMA.
Note: The ACMA may make determinations under section 60 of the Act about allocations by auctions or by other procedures.
151 Applicants and bidders must not misuse auction system
(1) An applicant or bidder must only access and use the auction system in accordance with the information about access and use provided under section 24, 46 or 51 or paragraph 54(3)(d) or (e).
(2) An applicant or bidder must not attempt to interfere with, disrupt or damage the auction system.
(3) An applicant or bidder must not use or attempt to use the auction system to breach a law of the Commonwealth.
152 The ACMA may obtain information from applicants and bidders
(1) If the ACMA has reason to believe that an applicant or bidder has information or documents that are relevant to the performance of any of the ACMA’s functions or exercise of its powers under this instrument, the ACMA may, by written notice, require the applicant or bidder:
(a) to give to the ACMA, within the period and in the manner and form specified in the notice, any such information; or
(b) to produce to the ACMA, within the period and in the manner and form specified in the notice, any such documents.
Note: If a requirement in a notice given under this subsection is breached, the ACMA may take action under section 155.
(2) The ACMA may vary a notice given under subsection (1).
153 Use of information and documents by the ACMA
(1) The ACMA may use information or documents it obtains in the performance of its functions or exercise of its powers under this instrument:
(a) for the purposes of this instrument, including disclosing or publishing information or documents as provided for in this instrument; or
(b) in relation to a spectrum licence to be issued, or issued, as a result of the allocation process.
(2) The ACMA may retain possession of a document or other item given to the ACMA for the purposes of this instrument for as long as necessary for the performance of the ACMA’s functions and exercise of its powers under this instrument or the Act.
(3) The ACMA may disclose information or documents in accordance with Part 7A of the ACMA Act or as otherwise authorised by law.
154 The ACMA to provide information to ACCC on request
(1) The ACCC may request information from the ACMA in relation to the allocation process, or in relation to an applicant or bidder.
(2) The ACMA must provide the requested information to the ACCC if the ACMA has the information.
(3) Without limiting subsection (1), information that the ACCC may request includes the following:
(a) completed application forms;
(b) completed associates forms;
(c) completed updated application forms;
(d) completed eligibility nomination forms;
(e) completed updated eligibility nomination forms;
(f) deeds of confidentiality;
(g) information about an applicant’s associates and affiliations (including statutory declarations and statements made under this instrument);
(h) information about any breaches of confidentiality obligations;
(i) information about bidding during an auction;
(j) information about the outcomes of the allocation process.
155 Retention of eligibility payment or enforcement of deed of financial security for breach of auction procedures
(1) The ACMA, on behalf of the Commonwealth, may retain an eligibility payment made by an applicant or bidder, or enforce a deed of financial security given by an applicant or bidder, if:
(a) the ACMA is satisfied that:
(i) the applicant or bidder, or a related person of the applicant or bidder, or a contractor of the applicant or bidder, breached a provision of this instrument; and
(ii) the breach affected, or may have affected, the outcome of the allocation process; or
(b) the ACMA is satisfied that the applicant or bidder, or a related person of the applicant or bidder, or a contractor of the applicant or bidder, breached the confidentiality obligation under section 29 before the confidentiality obligation came to an end; or
(c) the ACMA is satisfied that the bidder breached section 66; or
(d) the bidder failed to give a statement required under section 70; or
(e) the bidder is a winning bidder who failed to pay the balance of the total winning price in accordance with section 89; or
(f) the applicant or bidder failed to comply with a requirement in a notice given under subsection 152(1).
(2) The ACMA must, in writing, notify the applicant or bidder of a decision under subsection (1), and the nature of the breach of failure, before the later of:
(a) 6 months after the end of the allocation period; or
(b) 6 months after the day on which the breach or failure mentioned in subsection (1) occurred, or first occurred.
(3) An eligibility payment retained under this section, or an amount obtained through enforcement of a deed of financial security under this section, is forfeited to the Commonwealth unless the Federal Court orders the return of the amount under section 157.
156 Effect of retention on winning bidders
If the ACMA makes a decision under subsection 155(1) in relation to a winning bidder:
(a) despite sections 88 and 90, the ACMA must not issue a spectrum licence to the bidder; and
(b) the parts of the spectrum assigned to the lots allocated to the bidder under this instrument (including leftover lots allocated under Division 1 of Part 5 or section 145) are taken to be unallocated.
157 Application to Federal Court for return of retained amount
(1) An applicant or bidder who has been notified by the ACMA under subsection 155(2) may, within 1 year of receiving the notice, apply to the Federal Court for return of all or part of an eligibility payment or an amount obtained through enforcement of a deed of financial security (relevant amount).
(2) On application, the Federal Court may:
(a) if the Court is not satisfied that the breach identified in the notice was committed—order the return of all of the relevant amount; or
(b) if the Court is satisfied that the breach identified in the notice was committed, but considers that it would be disproportionate for the Commonwealth to keep the relevant amount—order the return of part of the relevant amount.
(3) This section does not enable the Federal Court to order that a spectrum licence be issued to an applicant or bidder.
(4) This section does not remove any existing jurisdiction of a court.
158 No liability of the ACMA, etc
None of the ACMA, the Commonwealth or the auction manager is liable to pay damages or costs arising from an act or omission of any person in relation to the allocation procedures set out in this instrument.
159 Other rights not affected
This instrument does not limit any other right of action or remedy which the ACMA or the Commonwealth has against a person.
160 Auction manager may delegate functions and powers
The auction manager may delegate any of the auction manager’s functions and powers under this instrument to:
(a) a member, within the meaning of the ACMA Act; or
(b) a member of the ACMA staff that:
(i) holds, or is acting in, an Executive Level 1 or 2 position, or an equivalent position; or
(ii) is an SES employee or acting SES employee.
Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.
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