Radiocommunications (Spectrum Licence Allocation — 26 GHz Band) Determination 2020 (Cth)

Radiocommunications (Spectrum Licence Allocation — 26 GHz Band) Determination 2020

The Australian Communications and Media Authority makes the following determination under section 60 and section 294 of the Radiocommunications Act 1992.

Dated: 20 November 2020

Chris Jose

[signed]

Member

Linda Caruso

[signed]

Member/General Manager

Australian Communications and Media Authority

Contents

Part 1—Preliminary

1            Name of instrument

2            Commencement

3            Authority

4            Interpretation

5            Lots and products

6            References to other legislative instruments, and to other instruments or writing

7           Giving documents to the ACMA

8            Statutory declaration for body corporate

9            Payment of amounts

Part 2—Limits on allocation of spectrum

10          Interpretation

11          Meaning of allocation limits

12          Allocation limits

13          Meaning of associate and specified group of persons

14          Affiliation between applicants or bidders

15          Information relevant to considering whether applicants or bidders are affiliated

Part 3—Confidentiality

16          Meaning of confidential information

17          Obligation to not disclose confidential information

18          Duration of confidentiality obligation

19          Reporting breach of confidentiality

20          Notice of breach of confidentiality

21          Deed of confidentiality required from related persons and contractors

Part 4—Procedures before auction

22          Auction manager

23          Setting application fee

24          Application fee and withdrawal on variation of starting prices

25          Advertising of auction by the ACMA

26          Applicant information package

27          Starting prices, lot ratings and minimum spectrum requirements

28          Making an application

29          Provisional start demand validity rules for application

30          Applicants to notify ACMA if application information incorrect

31          Applicant to make statutory declaration

32          Failure to give statutory declaration

33          Procedure if ACMA satisfied applicants are affiliated

34          Requirements for new application

35          Maximum eligibility points and selecting provisional minimum spectrum requirements

36          Eligibility payment or deed of financial security required for maximum eligibility points

37          Varying starting prices, lot ratings and deadlines

38          Notice of updated documents

39          Giving of updated documents and updating financial security

40          Notice inviting new applicants to the auction

41          Making a new application

42          Statutory declarations and affiliations

43          Withdrawal of applicant

44          Register of bidders

45          Registration process

46          Bidders to notify ACMA if register incorrect

47          Preparation for bidding

48          Security of the auction

49          Auction rounds

50          First and second clock rounds and pre-bidding phase before first clock round

Part 5—Auction procedures

51          Auction stages

52          Procedures if only one bidder

53          Rounds of the auction

54          Auction manager’s discretion to accept entries and bids

55          Action that auction manager may take in exceptional circumstances

56          Affiliation between bidders during auction period not permitted

57          Requirement to report affiliation

58          Auction continues despite possible affiliation

59          ACMA consideration of affiliation

60          Primary winners and secondary winners to make statement about affiliations

61          Notification that winners are affiliated

62          Consequences of affiliation between winners

Part 6—Procedures after auction

63          Notice and refunds to withdrawn applicants

64          Notice and refunds to unsuccessful bidders

65          Winning price and balance of winning price

66           Results of the auction

67          Sufficient eligibility payment – issue of spectrum licence without further payment

68          Payment of balance of winning price

69          Publication of auction results

Part 7—Miscellaneous

70          Unallocated spectrum

71          Bidders must not misuse auction system

72          ACMA may obtain information from applicants and bidders

73          Use of information and documents by ACMA

74          ACMA to provide information to ACCC on request

75          Retention of eligibility payment or enforcement of deed of financial security for breach of auction procedures

76          Effect of retention on winning bidders

77          Application to Federal Court for return of retained amount

78          No liability of the ACMA, etc.

79          Other rights not affected

80          Auction manager may delegate functions and powers

Schedule 1—Rules for the primary stage of the auction

Part 1—Application and interpretation

Part 2—Processing of bids

Part 3—Arrangements for primary stage

Part 4—Bidding in the primary stage

Part 5—Determining the primary winners and primary prices

Part 6—Bringing the primary stage to an end

Schedule 2—Rules for the secondary stage of the auction

Part 1—Application and interpretation

Part 2—Arrangements for secondary stage

Part 3—Bidding in the secondary stage

Part 4—Determining the secondary winners and secondary prices

Part 5—Bringing the secondary stage to an end

Schedule 3—Rules for the assignment stage of the auction

Part 1—Application and interpretation

Part 2—Arrangements for assignment stage

Part 3—Bidding in the assignment stage

Part 4—Determining winning assignment bids and assignment prices

Part 5—Bringing the assignment stage to an end

Schedule 4 —Payment of balance of the winning price greater than zero and issue of spectrum licence

Part 1—Application and interpretation

Part 2—Election of winning bidder for payment of winning price

Part 3—Issue of spectrum licences

Part 1—Preliminary

1. Name of instrument

This instrument is the Radiocommunications (Spectrum Licence Allocation — 26 GHz Band) Determination 2020.

1. Commencement

This instrument commences at the start of the day after it is registered on the Federal Register of Legislation.

Note:   The Federal Register of Legislation may be accessed, free of charge, at type="1">

Authority

This instrument is made under section 60 and section 294 of the Act.

Note:To the extent that 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.

1. Interpretation

(1)   In this instrument:

26 GHz band means the part of the spectrum from 25.1 GHz to 27.5 GHz.

ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

ACMA staff has the meaning given by section 3 of the Australian Communications and Media Authority Act 2005.

ACN has the meaning given by section 9 of the Corporations Act 2001.

Act means the Radiocommunications Act 1992.

affiliated: see section 14.

allocated, for a lot of a product, means allocated as a result of the primary stage or the secondary stage.

allocation limits: see sections 11 and 12.

applicant means a person who has applied for registration as a bidder.

applicant information package means a package containing the information, forms and other documents set out in subsection 26(1).

application deadline: see paragraph 25(1)(e).

application fee means the amount set under section 23.

application form means the form approved by the ACMA under paragraph 26(1)(f).

ARBN has the meaning given by section 9 of the Corporations Act 2001.

assignment bid: see subclauses 5(1), 5(5) and 5(6) of Schedule 3.

assignment price: see clause 2 of Schedule 3.

assignment round: see clause 2 of Schedule 3.

assignment stage means the assignment rounds of the auction:

(a)commencing with the first assignment round; and

(b)ending immediately after the auction manager provides the results for every assignment round in accordance with clauses 9 and 10 of Schedule 3.

associate: see subsections 13(1) and 13(2).

auction means an auction of lots held in accordance with this instrument.

auction manager means the person appointed under section 22.

auction period means the period:

(a)commencing on the later of the eligibility deadline or extended eligibility deadline (if there is one); and

(b)ending immediately after the auction manager provides the results for the auction in accordance with section 66.

auction system means the system the ACMA makes available to bidders to participate in the auction.

balance of the winning price: see subsection 65(2).

bank guarantee has the meaning given by subsection 6(5) of the spectrum access charges direction.

bid:

(a)in a clock round for the primary stage: see subclause 2(1) of Schedule 1;

(b)in a round for the secondary stage: see subclause 2(1) of Schedule 2;

(c)in an assignment round for the assignment stage, means an assignment bid.

bidder means a person registered by the ACMA as a bidder under section 45.

clock round: for the primary stage, see subclause 2(1) of Schedule 1.

confidential information: see section 16.

deed of acknowledgement means a deed in the form approved under paragraph 26(1)(g) that has been completed and executed by an applicant 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.

Note:    Strict compliance with the form is required.

deed of confidentiality means a deed in the form approved under paragraph 26(1)(h) that has been completed and executed 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.

Note:    Strict compliance with the form is required.

deed of financial security means a deed in the form approved under paragraph 26(1)(m) that has been completed and executed 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.

eligibility deadline: see paragraph 25(1)(f).

eligibility nomination form means the form approved by the ACMA under paragraph 26(1)(l) or subsection 37(3), whichever is the case.

eligibility payment means a payment made by an applicant under section 36, and includes an additional eligibility payment made by an applicant under subsection 39(3) for the purposes of section 36.

eligibility points: see subclause 2(1) of Schedule 1.

Note:   Eligibility points are required to bid in the primary stage, but are not required to bid in the secondary stage.

entry, in the pre-bidding phase, means an entry in the auction system made by a bidder under paragraph 3(2)(a) or 3(2)(b) of Schedule 1.

extended eligibility deadline: see paragraph 37(2)(b).

final clock round: see clause 16 of Schedule 1.

final round of the secondary stage: see subclause 14(2) of Schedule 2.

lot: see subsection 5(1).

lot rating means the value of a lot of a product in eligibility points set by the ACMA under paragraph 27(1)(b) or 37(1)(b), whichever is the case.

marketing plan means the Radiocommunications Spectrum Marketing Plan (26 GHz Band) 2020.

maximum eligibility points, for a bidder, means the maximum number of eligibility points secured by the bidder under section 36.

minimum spectrum requirement, for a bidder in relation to lots of a product, means the number of lots of the product entered by, or taken to be entered by, the bidder as its minimum requirement in the pre-bidding phase of the primary stage in accordance with paragraph 3(2)(b) or 3(3)(b) of Schedule 1.

new application deadline: see paragraph 37(2)(a).

posted demand: see subclause 2(1) of Schedule 1.

pre-bidding phase: see paragraph 50(1)(b).

primary price: see subclause 17(3) of Schedule 1.

primary stage means the pre-bidding phase and clock rounds of the auction:

(a)commencing with the start of the pre-bidding phase; and

(b)ending immediately after the auction manager provides the results for the final clock round in accordance with clauses 18 and 19 of Schedule 1.

primary winner: see subclause 17(1) of Schedule 1.

product: see subsection 5(1).

provisional minimum spectrum requirement, for an applicant in relation to lots of a product, means the number of lots of the product selected by the applicant as its minimum requirement in a completed eligibility nomination form in accordance with subparagraph 28(2)(a)(iii) or paragraph 34(6)(a) or 39(1)(c) or subparagraph 41(2)(a)(iii).

provisional start demand, for an applicant in relation to lots of a product, means the number of lots of the product specified by the applicant in a completed eligibility nomination form in accordance with subparagraph 28(2)(a)(i) or paragraph 34(6)(a) or 39(1)(a) or subparagraph 41(2)(a)(i).

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—26 GHz Band) Declaration 2019.

region has the same meaning as in the marketing plan.

register means the register of bidders maintained by the ACMA under section 44.

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.

residual lot: see subclause 1(1) of Schedule 2.

round: for the secondary stage, see subclause 2(1) of Schedule 2.

secondary price: see subclause 17(3) of Schedule 2.

secondary stage means the rounds of the auction:

(a)    commencing with the first round for a residual lot of a product; and

(b)   ending immediately after the auction manager provides the results for the final round of the secondary stage in accordance with clauses 18 and 19 of Schedule 2.

secondary winner: see subclauses 14(4) and 15(2) of Schedule 2.

size: see subsection 5(2).

specified group of persons: see subsections 13(3) and 13(4).

spectrum access charges direction means the Radiocommunications (Spectrum Access Charges)—26 GHz Band) Direction 2020.

spectrum licence limits direction means the Radiocommunications (Spectrum Licence Limits—26 GHz Band) Direction 2020.

start demand: see subclause 2(1) of Schedule 1.

starting price, for a lot of a product, means the amount (in dollars) set by the ACMA for the lots of the product under paragraph 27(1)(a) or 37(1)(a), whichever is the case.

total assignment price: see subclause 8(8) of Schedule 3.

winning bidder means a primary winner or secondary winner who has frequency ranges assigned to lots of a product, allocated to the winner in the primary stage or secondary stage, at the end of the assignment stage.

winning price: see subsection 65(1).

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.

Note:A number of expressions used in this instrument are defined in the Act, including the following:

·   ACCC

·   ACMA

·   frequency band

·   licence

·   radiocommunications device

·   spectrum

·   spectrum licence.

In this instrument, register has a different meaning to that given to Register by section 5 of the Act.

(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 the Australian Capital Territory.

1. Lots and products

(1)   In this instrument:

combined products means any one of the following:

(a)    Greater Perth combined products;

(b)   Hobart combined products;

(c)    Margaret River combined products.

designated area has the meaning given by subsection 4(1) of the spectrum licence limits direction.

Greater Perth combined products means the Greater Perth lower band product and Greater Perth upper band product.

Greater Perth lower band product means the part of the spectrum identified as a product in the marketing plan, characterised by the frequency range 25.1 GHz to 27.0 GHz with respect to the region in item 25 in Table 1 set out in Schedule 3 to the marketing plan.

Note:    See also the table item dealing with 26 GHz Greater Perth Lower in Table 1 set out in Schedule 1 to the marketing plan and the table item dealing with GPER01 in Table 1 set out in Schedule 2 to the marketing plan.

Greater Perth upper band product means the part of the spectrum identified as a product in the marketing plan, characterised by the frequency range 27.0 GHz to 27.5 GHz with respect to the regions in item 26 in Table 1 set out in Schedule 3 to the marketing plan.

Note:See also the table item dealing with 26 GHz Greater Perth Upper in Table 1 set out in Schedule 1 to the marketing plan and the table item dealing with GPER02 in Table 1 set out in Schedule 2 to the marketing plan.

Hobart combined products means the Hobart lower band product and Hobart upper band product.

Hobart lower band product means the part of the spectrum identified as a product in the marketing plan, characterised by the frequency range 25.1 GHz to 27.0 GHz with respect to the region in item 27 in Table 1 set out in Schedule 3 to the marketing plan.

Note:    See also the table item dealing with 26 GHz Hobart Lower in Table 1 set out in Schedule 1 to the marketing plan and the table item dealing with HOBA01 in Table 1 set out in Schedule 2 to the marketing plan.

Hobart upper band product means the part of the spectrum identified as a product in the marketing plan, characterised by the frequency range 27.0 GHz to 27.5 GHz with respect to the region in item 27 in Table 1 set out in Schedule 3 to the marketing plan.

Note:See also the table item dealing with 26 GHz Hobart Upper in Table 1 set out in Schedule 1 to the marketing plan and the table item dealing with HOBA02 in Table 1 set out in Schedule 2 to the marketing plan.

lot means a unit of a product that is available in the auction.

Note:    In Schedule 2, for the meaning of lot, see subclause 2(1) of that Schedule.

lower band product means any one of the following:

(a)    Greater Perth lower band product;

(b)   Hobart lower band product;

(c)    Margaret River lower band product.

Margaret River combined products means the Margaret River lower band product and Margaret River upper band product.

Margaret River lower band product means the part of the spectrum identified as a product in the marketing plan, characterised by the frequency range 25.1 GHz to 27.0 GHz with respect to the region in item 28 in Table 1 set out in Schedule 3 to the marketing plan.

Note:    See also the table item dealing with 26 GHz Margaret River Lower in Table 1 set out in Schedule 1 to the marketing plan and the table item dealing with MARG01 in Table 1 set out in Schedule 2 to the marketing plan.

Margaret River upper band product means the part of the spectrum identified as a product in the marketing plan, characterised by the frequency range 27.0 GHz to 27.5 GHz with respect to the region in item 28 in Table 1 set out in Schedule 3 to the marketing plan.

Note:See also the table item dealing with 26 GHz Margaret River Upper in Table 1 set out in Schedule 1 to the marketing plan and the table item dealing with MARG02 in Table 1 set out in Schedule 2 to the marketing plan.

product means a part or parts of the 26 GHz band identified as a product in the marketing plan, characterised by a frequency range and a region.

Note:   The marketing plan places each product into a category, with the category defining the frequency range. See Schedule 1 and Schedule 2 to the marketing plan.

related lower band product means:

(a)    for the Greater Perth upper band product, the Greater Perth lower band product;

(b)   for the Hobart upper band product, the Hobart lower band product;

(c)    for the Margaret River upper band product, the Margaret River lower band product.

Note:The expression related lower band product is used for the purposes of the secondary stage in subparagraph 12(e)(iii) of Schedule 2 and for the purposes of the assignment stage in paragraph 4(4)(b) of Schedule 3.

related upper band product means:

(a)    for the Greater Perth lower band product, the Greater Perth upper band product;

(b)   for the Hobart lower band product, the Hobart upper band product;

(c)    for the Margaret River lower band product, the Margaret River upper band product.

Note:The expression related upper band product is used for the purposes of the secondary stage in clause 1A and subparagraphs 12(e)(ii) and (iv) of Schedule 2.

relevant combined products means:

(a)    for the Greater Perth lower band product and the Greater Perth upper band product, the Greater Perth combined products;

(b)   for the Hobart lower band product and the Hobart upper band product, the Hobart combined products;

(c)    for the Margaret River lower band product and the Margaret River upper band product, the Margaret River combined products.

Note:The expression relevant combined products is used for the purposes of the secondary stage in paragraph 1A(1)(b) of Schedule 2.

upper band product means any one of the following:

(a)    Greater Perth upper band product;

(b)   Hobart upper band product;

(c)    Margaret River upper band product.

(2)   The size of each lot of a product, when expressed in MHz, is the lot bandwidth set out for the product in the marketing plan, and the size or total size of lots of a product, when expressed in MHz, is the total bandwidth of those lots.

6              References to other legislative instruments, and to other instruments or writing

(1)   In this instrument, unless the contrary intention appears, a reference to another legislative instrument is a reference to that other legislative instrument as in force 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.

(2)   In this instrument, unless the contrary intention appears, a reference to an instrument or other writing (other than a legislative instrument) is a reference to that instrument or writing as in force or existing from time to time.

Note: See section 314A of the Act.

1. 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 to the email address specified in the applicant information package in accordance with subsection (2).

Note:    Subsections 28(6), 34(8), 39(5) and 41(6) have additional requirements for a deed of financial security given by email.

(2)   If a document is emailed:

(a)the document must be included as an attachment; and

(b)the document must be:

(i)if the document is a statutory declaration, statement under section 60, bank guarantee or deed – in a PDF format or another format approved by the auction manager; or

(ii)if the document is not a statutory declaration, statement under section 60, bank guarantee or deed – in a Word or PDF format or another format approved by the auction manager.

(3)   A deed of financial security may be given to the ACMA under this instrument as one or more deeds of financial security.        

1. Statutory declaration for body corporate

A statutory declaration required to be made in this instrument by a body corporate must be made by a director or secretary of the body corporate.

1. Payment of amounts

(1)   An amount paid to the ACMA on behalf of the Commonwealth under this instrument must be paid in Australian currency.

(2)   An amount must be paid by bank cheque or by electronic transfer.

(3)   An electronic transfer of an amount must be made by any of the following:

(a)direct transfer into the bank account with 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)BPay payment:

(i)only if, under Schedule 4, a winning bidder has been notified by the ACMA of the bidder’s balance of the winning price; and

(ii)using the electronic payment scheme called BPAY operated in co-operation between Australian financial institutions, which enables a person to make a payment to the ACMA, on behalf of the Commonwealth, as a participant in BPAY, either via telephone or internet access;

(c)credit card payment:

(i)only if, under Schedule 4, a winning bidder has been notified by the ACMA of the bidder’s balance of the winning price; and

(ii)into the bank account with the details set out in paragraph (a).

(4)   An amount is taken to have been paid by a deadline specified in this instrument if:

(a)the ACMA receives a bank cheque for the full 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.

(5)   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 subsection (5) is that an applicant or bidder must add the value of any bank charge or government duty to the amount of a payment.

(6)   If an amount payable under this instrument is not an amount of whole dollars, the amount is rounded up to the next dollar.

Note:This section relates to Division 2 of Part 6 to the extent that it applies to spectrum access charges payable under section 294 of the Act and, to that extent, is disallowable under section 42 of the Legislation Act 2003.

Part 2—Limits on allocation of spectrum

Division 1                Allocation limits

10            Interpretation

In this Part:

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 two 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.

1. Meaning of allocation limits

(1)   In this instrument, a reference to the allocation limits is a reference to the requirement that the allocation of spectrum licences under this instrument must not result in a person or specified group of persons having permission to use more spectrum in the 26 GHz band than a limit set out in section 12.

Note: The Minister has given a direction to the ACMA, under subsection 60(10) of the Act, that limits be imposed on the aggregate of the parts of the spectrum in the 26 GHz band that may be used by a person or specified group of persons as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act in the 26 GHz band that is enabled by the re-allocation declaration in each designated area. See the spectrum licence limits direction.

(2)  In this instrument, for the purpose of assessing the application of the allocation limits to a product, each of the following are to be treated as a single product:

(a)the Greater Perth combined products;

(b)the Hobart combined products;

(c)the Margaret River combined products.

Note:      The spectrum licence limits direction sets limits on the allocation of spectrum licences to a single person, or a specified group of persons, in designated areas. However, in the marketing plan, the lots in the Greater Perth, Hobart and Margaret River areas are each divided into two different products, such that each area has a lower band product and an upper band product. For the purposes of the allocation limits, the two products of each area are treated as just one product. For all other purposes, they are to be treated as two products.

12            Allocation limits

No person or specified group of persons may, as a result of the allocation of a spectrum licence under this instrument, use more than an aggregate of 1 GHz of the 26 GHz band in each designated area.

Division 2                Associates, specified group of persons and affiliations

1. Meaning of associate and specified group of persons

(1)   In this instrument:

associate means:

(a)in relation to a person that is a body corporate:

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

(ii)a related body corporate; or

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

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

(b)in relation to a person that is an individual:

(i)the individual’s spouse; or

(ii)the individual’s de facto partner within the meaning of the Acts Interpretation Act 1901; or

(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; or

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

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

(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.

Note:   The part of the spectrum referred to in the re-allocation declaration is the frequency band 25.1 GHz to 27.5 GHz.

(2)   For paragraph (1)(c) of the definition of associate, 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;

other than 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.

(3)   In this instrument:

specified group of persons means either of the following:

(a)a person and all associates of that person;

(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 (b) of the definition of specified group of persons in subsection (3), 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 of the groups;

(b)the individual is providing the company secretarial services through a person or entity (the third party service provider) that:

(i)is not in 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 those groups, under a contract or other legally binding arrangement, to provide the company secretarial services;

(c)the individual is not, otherwise 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.

1. Affiliation between applicants or bidders

Two applicants or bidders are affiliated if the applicants or bidders are in the same specified group of persons.

Note:Paragraph (b) of the definition of specified group of persons in subsection 13(3) means that 2 applicants or bidders are affiliated if they have an associate in common.  However, see subsection 13(4).

1. Information relevant to considering whether applicants or bidders are affiliated

(1)   When considering under this instrument whether 2 or more applicants or bidders are affiliated the ACMA must have regard to:

(a)completed application forms given under paragraph 28(1)(a) or paragraph 34(2)(a) or paragraph 41(1)(a); and

(b)updated application forms given under subsection 39(4); and

(c)statutory declarations and statements made under this instrument.

(2)   The ACMA may have regard to any other information that it considers relevant.

Part 3—Confidentiality

1. Meaning of confidential information

In this instrument:

confidential information, in relation to an applicant or bidder, means:

(a)documents the applicant or bidder has given to the ACMA for the purposes of the auction; and

(b)information provided to the bidder under section 45 for the purpose of participating in the auction; and

(c)a provisional start demand of the applicant; and

(d)a start demand of the bidder for a clock round of the primary stage; and

(e)a posted demand of the bidder for a clock round of the primary stage; and

(f)a bid made by the bidder in the auction; and

(g)a proposed bid by the applicant or bidder or a bid under consideration by the applicant or bidder; and

(h)a proposed provisional start demand or proposed start demand by the applicant or bidder or a proposed provisional start demand or proposed start demand under consideration by the applicant or bidder; and

(i)the applicant’s or bidder’s bidding strategy; and

(j)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; and

(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)provisional start demands or proposed provisional start demands by another applicant; or

(iii)start demands or proposed start demands by another applicant or bidder; or

(iv)another applicant’s or bidder’s bidding strategy; and

(l)information that, if disclosed, could be reasonably expected to affect, or be capable of affecting, the outcome of the auction.

17            Obligation to not disclose confidential information

(1)   An applicant or bidder, or a related person who has knowledge of the applicant’s or bidder’s confidential information, or a contractor of an applicant or bidder who has knowledge of the applicant’s or bidder’s confidential information, must not, either directly or indirectly, disclose the applicant’s or bidder’s confidential information about the auction to any person.

(2)   Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, or a contractor of an applicant or bidder, disclosing information about the auction:

(a)for the purpose of obtaining advice relating to the auction from a person in the person’s professional capacity; or

(b)for the purpose of obtaining finance to make a payment in relation to spectrum licences in the auction; or

(c)to the ACMA; or

(d)for an applicant or bidder – to a related person of that applicant or bidder; or

(e)for a related person of an applicant or bidder – to that 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 that 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 auction;

(h)as authorised by this instrument or 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 21.

(3)   Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, or a contractor of an applicant or bidder, disclosing information about the auction if:

(a)the information is already publicly available; and

(b)the information was not made available because of a breach of this section.

1. Duration of confidentiality obligation

Section 17 applies to an applicant or bidder, a related person of the applicant or bidder, and a contractor of the applicant or bidder until:

(a)the applicant, as a withdrawn applicant, is notified under section 63 that the applicant’s confidentiality obligation is at an end; or

(b)for a bidder (whether or not a winning bidder), the ACMA announces or publishes the information mentioned in subsection 69(1) (after winning bidders are notified in accordance with subsection 69(2)).

1. 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 17; or

(b)receives the confidential information of 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.

1. Notice of breach of confidentiality

(1)   If the ACMA has reason to believe that an applicant or bidder, or a related person of the applicant or bidder, or a contractor of the applicant or bidder, may have disclosed confidential information in breach of section 17 or received confidential information as a result of a breach of section 17, the ACMA must:

(a)tell 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.

(2)   If the ACMA forms the belief before the end of the auction period, the ACMA is not required to tell the applicant or bidder before the auction period ends, but must tell the applicant or bidder as soon as practicable after the auction period ends.

1. Deed of confidentiality required from related persons and contractors

(1)   A related person of an applicant or bidder who has knowledge of the applicant’s or bidder’s confidential information must give the ACMA a deed of confidentiality if the person is:

(a)an employee of the applicant or bidder; or

(b)an employee of a related body corporate of the applicant or bidder that provides services to the applicant or bidder.

(2)   A contractor of an applicant or bidder who has knowledge of the applicant’s or bidder’s confidential information must give the ACMA a deed of confidentiality.

(3)   Subsection (2) does not apply to a contractor under a contract:

(a)for the purpose of obtaining advice relating to the auction from a person in the person’s professional capacity; or

(b)for the purpose of obtaining finance to make a payment in relation to spectrum licences in the auction.

(4)   If a person to whom paragraph (1)(a) or (1)(b) or subsection (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 on the ACMA’s website at see paragraphs 25(1)(h) and 26(1)(h).

Part 4—Procedures before auction

Division 1                  Preliminary

1. Auction manager

The ACMA must, in writing, appoint:

(a)a member within the meaning of the Australian Communications and Media Authority Act 2005; 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 Australian Communications and Media Authority Act 2005;

to manage the auction.

1. Setting application fee

Before the ACMA publishes a notice inviting applications for the auction, it must set the amount of the application fee.

1. Application fee and withdrawal on variation of starting prices

(1)   Subject to subsection (2), an application fee paid under this instrument is not refundable in any circumstances, including if an applicant or bidder withdraws, or is taken to withdraw, from the auction, or is not permitted to make a bid in the auction.

(2)   An application fee paid under this instrument is refundable if the ACMA varies a starting price under paragraph 37(1)(a) and an applicant withdraws its application before the extended eligibility deadline by giving the ACMA notice in writing.

(3)   If subsection (2) applies to an applicant, the ACMA on behalf of the Commonwealth must refund the application fee no later than 6 months after the applicant withdraws its application.

Division 2                  Advertising the auction

1. Advertising of auction by the ACMA

(1)   The ACMA must publish on its website a notice that:

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

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

(c)states that the auction will be conducted in accordance with this instrument; and

(d)invites persons to apply to the ACMA to take part in the auction; and

(e)states the date and time (the application deadline) before which:

(i)completed application forms, completed deeds of acknowledgement and completed deeds of confidentiality by applicants must be received by the ACMA; and

(ii)the application fee must be paid to the ACMA on behalf of the Commonwealth; and

(f)states the date and time (the eligibility deadline) before which:

(i)completed eligibility nomination forms must be received by the ACMA; and     

(ii)eligibility payments must be made to the ACMA on behalf of the Commonwealth, or deeds of financial security must be given to the ACMA on behalf of the Commonwealth, or a combination of both; and  

(g)states that applications may only be withdrawn before the eligibility deadline or extended eligibility deadline (if there is one); and

(h)states that the applicant information package for the auction 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 auction by any method.

1. Applicant information package

(1)   The applicant information package must contain the following information:

(a)the re-allocation declaration;

(b)the spectrum licence limits direction;

(c)the marketing plan;

(d)this instrument;

(e)a guide to the auction;

(f)an application form approved by the ACMA, with instructions for completing and giving the application form to the ACMA;

(g)a deed of acknowledgement form approved by the ACMA, that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument;

(h)a deed of confidentiality form approved by the ACMA, that includes a statement that an applicant, or a related person of an applicant, or a contractor of an applicant, agrees not to disclose confidential information before section 17 ceases to apply to the relevant applicant or related person or contractor;

(i)the amount of the application fee for the auction;

(j)the application deadline, noting this may subsequently be replaced if there is a new application deadline;

(k)statutory declaration forms under section 31, paragraph 34(5)(c) and section 42, and the form for a statement under section 60, for the purposes of this instrument;

(l)an eligibility nomination form approved by the ACMA, with instructions for completing and giving the eligibility nomination form to the ACMA;

(m)a deed of financial security form approved by the ACMA;

(n)information about making an eligibility payment, or giving a deed of financial security, or both making an eligibility payment and giving a deed of financial security, for an applicant to secure maximum eligibility points;

(o)the eligibility deadline, noting this may subsequently change if there is an extended eligibility deadline;

(p)advice that the eligibility deadline or extended eligibility deadline (if there is one), is the last time for withdrawal from the auction;

(q)the physical address for giving documents to the ACMA;

(r)the email address for giving documents to the ACMA;

(s)the spectrum access charges direction.

(2)   The applicant information package may also contain other information about the auction.

(3)   The ACMA must publish the applicant information package on its website as soon as practicable after notice of the auction is published under subsection 25(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.

1. Starting prices, lot ratings and minimum spectrum requirements

(1)   The ACMA must set the following amounts:

(a)the starting price for the lots of each product in the auction;

(b)the lot rating for the lots of each product in the auction;

(c)the options for the minimum spectrum requirement (including provisional minimum spectrum requirement), in lots, that an applicant may select for lots of a product in the auction.            

Note:Paragraph (a) relates to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act and is disallowable under section 42 of the Legislation Act 2003.

(2)   After setting the amounts mentioned in paragraphs (1)(a), (1)(b) and (1)(c), the ACMA must approve an application form and eligibility nomination form.

(3)   The ACMA must ensure that the eligibility nomination form includes a requirement for and a guide to:

(a)specifying the number of lots of each product desired by an applicant as the provisional start demands of the applicant before the pre-bidding phase of the primary stage, at the starting price for the lots of the product; and

(b)calculating and specifying the maximum eligibility points of an applicant based on the specified provisional start demands of the applicant; and

(c)in relation to the lots of each product, either:

(i)      not selecting a provisional minimum spectrum requirement; or

(ii)     selecting only one option as the provisional minimum spectrum requirement;

for the lots of each product.

(4)   The ACMA must publish the amounts set under subsection (1) and the application form and eligibility nomination form on its website as soon as practicable after notice of the auction is published under subsection 25(1).

Division 3                  Application to participate in the auction

1. Making an application

(1)   A person may apply to become registered as a bidder in the auction by:

(a)giving the ACMA a completed application form; and

(b)giving the ACMA a deed of acknowledgement executed by the applicant; and

(c)giving the ACMA a deed of confidentiality executed by the applicant; and

(d)paying the application fee;

before the application deadline.

Note:    For information on how an application fee must be paid, see section 9.

(2)   After the application deadline and no later than the eligibility deadline, an applicant must:

(a)give the ACMA a completed eligibility nomination form, which:

(i)     specifies the number of lots of each product desired by the applicant as valid provisional start demands of the applicant before the pre-bidding phase of the primary stage, at the starting price for the lots of the product; and

(ii)   specifies the maximum eligibility points of the applicant, based on the specified provisional start demands; and

(iii)  in relation to each product, either does not select a provisional minimum spectrum requirement, or selects only one option as the provisional minimum spectrum requirement, for the lots of each product; and

(b)in accordance with section 36, do one of the following:

(i)     make an eligibility payment of an amount to the ACMA on behalf of the Commonwealth;

(ii)   give the ACMA on behalf of the Commonwealth a deed of financial security, for an amount;

(iii) make an eligibility payment of part of an amount and give a deed of financial security for the remainder.

Note:   For information on how an eligibility payment is made, see section 9.  For information on how a deed of financial security is given, see section 7 and subsections 36(7) and 36(8).

(3)   For paragraph (2)(b), amount, in relation to a person, has the meaning given by subsection 36(2).

(4)   Subject to subsection 39(1), if, before the eligibility deadline, an applicant has not:

(a)given the ACMA a completed eligibility nomination form; and

(b)made an eligibility payment to the ACMA on behalf of the Commonwealth, or given a deed of financial security to the ACMA on behalf of the Commonwealth, or a combination of both;

in accordance with subsection (2), the applicant is taken to have withdrawn its application.

(5)   Subject to subsections 39(3) and 39(4), an applicant may give the ACMA an updated document:

(a)for paragraph (1)(a), (1)(b) or (1)(c) – at any time until the application deadline, but not after the application deadline; or

(b)for paragraph (2)(a), or subparagraph (2)(b)(ii) or (2)(b)(iii) – at any time until the eligibility deadline, but not after the eligibility deadline.

(6)   If a deed of financial security (for subparagraph (2)(b)(ii) or (2)(b)(iii)) is given to the ACMA on behalf of the Commonwealth by email before the eligibility deadline, the original deed must be received by the ACMA no later than 3 working days after the eligibility deadline (or, if the ACMA agrees to a later time, the agreed time) for the application to be valid.

1. Provisional start demand validity rules for application

(1)      For the purposes of subparagraph 28(2)(a)(i) or paragraph 34(6)(a) or paragraph 39(1)(a) or subparagraph 41(2)(a)(i), a provisional start demand of an applicant for lots of a product is valid if both of the following apply in relation to the provisional start demand:

(a)the total size of the lots of the product for the provisional start demand does not exceed the applicant’s allocation limits (when expressed in MHz):

(i)applicable to the product, other than a lower band product and an upper band product; or

(ii)applicable to any one of the combined products; and

(b)the number of lots for the applicant’s provisional start demand of the product is not greater than the number of lots for the supply of the product.

Note:   The spectrum licence limits direction sets limits on the allocation of spectrum licences to a single person, or a specified group of persons, in designated areas. However, in the marketing plan, the lots in the Greater Perth, Hobart and Margaret River areas are each divided into two different products, such that each area has a lower band product and an upper band product. For the purposes of the allocation limits, the two products of each area are treated as just one product. For all other purposes, they are to be treated as two products.

(2)  In subsection (1), supply has the meaning given by subclause 2(1) of Schedule 1.

1. Applicants to notify ACMA if application information incorrect

(1)   If an applicant knows that any of the information in the application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.

(2)   The auction manager may correct the information in the application if the auction manager is satisfied that the information is incorrect, such as it containing a clerical error or an obvious mistake or omission.

1. Applicant to make statutory declaration

(1)   After the application deadline, the ACMA must:

(a)give each applicant details about the identity of all other applicants, and the persons identified as the associates of other applicants; and

(b)ask each applicant to make a statutory declaration stating whether the applicant is affiliated with another applicant and, if so, identifying the other applicant and giving details of the affiliation.

(2)   The ACMA must state a deadline, at least 10 working days after the date of the request, before which the statutory declaration must be received by the ACMA.

1. Failure to give statutory declaration

If an applicant does not give the ACMA a statutory declaration in accordance with section 31, the applicant is taken to have withdrawn its application.

1. Procedure if ACMA satisfied applicants are affiliated

(1)   If the ACMA is satisfied that two or more applicants are affiliated, the ACMA must, in writing:

(a)notify the applicants and tell them the basis on which the ACMA is satisfied the applicants are affiliated; and

(b)notify the affiliated applicants that to participate in the auction they must:

(i)withdraw the applications of all the affiliated applicants and submit a new application under section 34; or

(ii)withdraw the applications of all but one of the affiliated applicants.

(2)   Within 10 working days of the ACMA notifying the affiliated applicants under subsection (1), the applicants must notify the ACMA in writing which option under paragraph (1)(b) the applicants have decided to take.

(3)   If the affiliated applicants do not notify the ACMA within those 10 working days, the applicants are taken to have withdrawn their applications.

(4)   If some of the affiliated applicants withdraw their applications, but more than one affiliated applicant does not, the remaining affiliated applicants are taken to have withdrawn their applications.

(5)   The ACMA must tell the applicants in writing if they are taken to have withdrawn under subsection (3) or (4).

1. Requirements for new application

(1)   If a group of affiliated applicants notified by the ACMA under subsection 33(1) decide to submit a new application, the new applicant must be a body corporate whose only members are one or more of those affiliated applicants.   

(2)   The new applicant must, within 10 working days of the ACMA notifying the affiliated applicants under subsection 33(1):

(a)    give the ACMA a completed application form; and

(b)   pay the application fee.

Note:    For information on how an application fee must be paid, see section 9.

(3)   If the ACMA receives a completed application form and application fee under subsection (2), the ACMA must give each applicant (including the new applicant) updated details about the identity of all other applicants, and the persons identified as the associates of other applicants.

(4)   The updated information does not need to include those applicants who have already withdrawn.

(5)   The new applicant must, no later than 3 working days after the ACMA gives the new applicant the updated information (or, if the ACMA agrees to a later time, the agreed time):

(a)give the ACMA a deed of acknowledgement executed by the applicant; and

(b)give the ACMA a deed of confidentiality executed by the applicant; and

(c)make and give the ACMA a statutory declaration that the new applicant is not affiliated with any other applicant mentioned in the updated information.

(6)   The new applicant must, no later than the eligibility deadline or extended eligibility deadline (if there is one), whichever is the case (or, if the ACMA agrees to a later time, the agreed time):

(a)give the ACMA:

(i)a completed eligibility nomination form, which includes the matters set out in paragraph 28(2)(a); or

(ii)a completed updated eligibility nomination form, which includes the matters set out in paragraph 41(2)(a); and

(b)in accordance with section 36, do one of the following:

(i)make an eligibility payment of an amount to the ACMA on behalf of the Commonwealth;

(ii)give the ACMA on behalf of the Commonwealth a deed of financial security, for an amount;

(iii)make an eligibility payment of part of an amount and give a deed of financial security for the remainder.

Note:   For information on how an eligibility payment is made, see section 9.  For information on how a deed of financial security is given, see section 7 and subsections 36(7) and 36(8).

(7)   For paragraph (6)(b), amount, in relation to a person, has the meaning given by subsection 36(2).

(8)   If a deed of financial security (for subparagraph (6)(b)(ii) or (6)(b)(iii)) is given to the ACMA on behalf of the Commonwealth by email before the eligibility deadline or extended eligibility deadline (if there is one), whichever is the case, the original deed must be received by the ACMA no later than 3 working days after the relevant deadline (or, if the ACMA agrees to a later time, the agreed time) for the application to be valid.

(9)   The ACMA must not accept a new application under this section unless it is satisfied that the new applicant is not affiliated with any applicant who has not withdrawn, including another new applicant.

Division 4                Maximum eligibility points, provisional minimum spectrum requirements and financial security

1. Maximum eligibility points and selecting provisional minimum spectrum requirements

(1)   The maximum eligibility points that an applicant may specify in its completed eligibility nomination form (or updated eligibility nomination form) is the sum of the lot ratings for the number of lots of each product to be auctioned, up to the applicant’s allocation limits (when expressed in eligibility points):

(a)applicable to the product, other than a lower band product and an upper band product; or

(b)applicable to any one of the combined products.

Note 1:  A person’s ability to use eligibility points in the auction is restricted by the allocation limits in sections 11 and 12.

Note 2:  The spectrum licence limits direction sets limits on the allocation of spectrum licences to a single person, or a specified group of persons, in designated areas. However, in the marketing plan, the lots in the Greater Perth, Hobart and Margaret River areas are each divided into two different products, such that each area has a lower band product and an upper band product. For the purposes of the allocation limits, the two products of each area are treated as just one product. For all other purposes, they are to be treated as two products.

(2)   The provisional minimum spectrum requirements for the lots of each product to be auctioned that an applicant may select in its completed eligibility nomination form must be from the options set by the ACMA under paragraph 27(1)(c). If a selection is not made for a product, the applicant is taken to have no provisional minimum spectrum requirement for the lots of that product.

Note:An applicant may select a provisional minimum spectrum requirement for the lots of any product, even if the applicant has not specified a provisional start demand for the lots of a product in its eligibility nomination form.

1. Eligibility payment or deed of financial security required for maximum eligibility points

(1)   An applicant must, before the eligibility deadline or extended eligibility deadline (if there is one), secure the applicant’s maximum eligibility points by:

(a)making an eligibility payment of an amount to the ACMA on behalf of the Commonwealth; or

(b)giving the ACMA on behalf of the Commonwealth a deed of financial security, which has been completed in the approved form and executed, for an amount; or

(c)making an eligibility payment of part of an amount and giving a deed of financial security for the remainder.

Note:   For information on how an eligibility payment is made, see section 9. For information on how a deed of financial security is given, see section 7 and subsections (7) and (8).

(2)   The amount (when expressed in dollars) required to secure the maximum eligibility points specified by the applicant in its completed eligibility nomination form (or updated eligibility nomination form) is 10% of the sum of, for each product, the amount calculated by multiplying the provisional start demand (when expressed in lots) for a product, as specified in the relevant form, by the starting price for the lots of that product.

(3)   If an applicant makes an eligibility payment or gives a deed of financial security (or both) for an amount less than the amount under subsection (2), the ACMA must, in writing, notify the applicant that:

(a)the applicant has made an eligibility payment or given a deed of financial security (or both), whichever is the case, for less than the amount under subsection (2); and

(b)the applicant must, before the eligibility deadline or extended eligibility deadline (if there is one), or no later than 3 working days after the date of the notice, whichever is the later, make an eligibility payment or give a deed of financial security (or both) for the remainder of the amount under subsection (2).

(4)  If the applicant does not comply with the notice given under subsection (3):

(a)subject to paragraph (c), the maximum eligibility points secured by the applicant is calculated by dividing the amount in subsection (3) by the amount in subsection (2), and multiplying that quotient by the maximum eligibility points specified by the applicant in its completed eligibility nomination form (or updated eligibility nomination form), and rounding down the result to the nearest whole point or zero if there is no remaining whole point; and

(b)the provisional start demands of the applicant are reduced commencing with a lot or lots of a product with the lowest lot rating being removed from the applicant’s provisional start demands until the sum of the lot ratings for the remaining provisional start demands of the applicant is not greater than the maximum eligibility points secured by the applicant calculated under paragraph (a); and

(c)if, after the steps in paragraphs (a) and (b) are taken, the difference between:

(i)the maximum eligibility points secured by the applicant (the provisional secured points); and

(ii)the sum of the lot ratings for the number of lots of each product for which the applicant has a provisional start demand;

is greater than zero – that difference is subtracted from the provisional secured points to give the number of maximum eligibility points secured by the applicant.

(5)  If:

(a)no eligibility points, as a result of paragraph (4)(a) or (4)(c), remain; or

(b)no provisional start demands, as a result of paragraph (4)(b), remain;

the applicant is taken to have withdrawn its application.

(6)  The ACMA must:

(a)if an applicant has had its maximum eligibility points and provisional start demands calculated in accordance with subsection (4) – enter the amounts calculated for the applicant in the register and tell the applicant in writing; or

(b)if an applicant is taken to have withdrawn its application under subsection (5) – tell the applicant in writing.

(7)   A deed of financial security must be executed by:

(a)an authorised deposit-taking institution within the meaning of the Banking Act 1959; or

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

(c)a Lloyd’s underwriter authorised to carry on insurance business under Part VII of the Insurance Act 1973.

(8)   If a deed of financial security is executed by a person acting under a power of attorney for a body corporate, the applicant must give the ACMA a copy of the power of attorney with the deed.

(9)   An applicant is taken to have withdrawn its application if:

(a)the applicant fails to make an eligibility payment or give a deed of financial security before the eligibility deadline or extended eligibility deadline (if there is one); or

(b)the ACMA is not satisfied that the person executing a deed of financial security is a person mentioned in subsection (7).

(10)   The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (9).

Division 5                Extension of deadlines and related requirements

1. Varying starting prices, lot ratings and deadlines

(1)   Not less than 5 working days before the eligibility deadline, the ACMA may:

(a)vary a starting price set under paragraph 27(1)(a); and

(b)if a starting price is varied, vary a lot rating set under paragraph 27(1)(b).

Note:Varying a starting price set under paragraph 27(1)(a) relates to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act. Accordingly, paragraph 37(1)(a) is disallowable under section 42 of the Legislation Act 2003.

(2)   When making any variations under subsection (1), the ACMA must:

(a)state a later date and time to replace the application deadline, as the new application deadline, which must be 20 working days after the date of the variations; and

(b)vary the eligibility deadline by stating a later date and time as the extended eligibility deadline, which must be at least 20 working days after the eligibility deadline.

(3)   After making any variations under subsections (1) and (2), the ACMA must approve an updated eligibility nomination form.

(4)   The ACMA must ensure that the updated eligibility nomination form includes a requirement for and a guide to:

(a)specifying the number of lots of each product desired by an applicant as the provisional start demands of the applicant before the pre-bidding phase of the primary stage, at the starting price for the lots of the product; and

(b)calculating and specifying the maximum eligibility points of an applicant based on the specified provisional start demands of the applicant; and

(c)in relation to each product, either:

(i)      not selecting a provisional minimum spectrum requirement; or

(ii)     selecting only one option as the provisional minimum spectrum requirement;

for the lots of each product.

(5)   The ACMA must as soon as practicable after making any variations under subsection (1) publish, on its website:

(a)a notice of the amounts set under paragraphs (1)(a) and (1)(b); and

(b)a notice of the date and time of the new application deadline; and

(c)a notice of the date and time of the extended eligibility deadline; and

(d)the updated eligibility nomination form, with instructions for completing and giving the updated eligibility nomination form to the ACMA.

1. Notice of updated documents

   The ACMA must as soon as practicable after making any variations under subsections 37(1) and 37(2) notify any applicants, in writing, that:

(a)they must, before the extended eligibility deadline, give the ACMA a completed updated eligibility nomination form; and

(b)they may, before the extended eligibility deadline, do any of the following:

(i)make an additional eligibility payment to the ACMA on behalf of the Commonwealth for the purposes of section 36;

(ii)update their deeds of financial security for the purposes of section 36;

if necessary; and

(c)they may, before the new application deadline, give the ACMA an updated application form, if necessary.

1. Giving of updated documents and updating financial security

(1)   No later than the extended eligibility deadline, an applicant must give the ACMA a completed updated eligibility nomination form, which:

(a)specifies the number of lots of each product desired by the applicant as valid provisional start demands of the applicant before the pre-bidding phase of the primary stage, at the starting price for the lots of the product; and

(b)specifies the maximum eligibility points of the applicant, based on the specified provisional start demands; and

(c)in relation to each product, either does not select a provisional minimum spectrum requirement, or selects only one option as the provisional minimum spectrum requirement, for the lots of each product.

(2)   If an applicant does not give the ACMA a completed updated eligibility nomination form, in accordance with subsection (1), the applicant is taken to have withdrawn its application.

(3)   No later than the extended eligibility deadline, an applicant may do any of the following:

(a)make an additional eligibility payment to the ACMA on behalf of the Commonwealth for the purposes of section 36;

(b)update its deed of financial security for the purposes of section 36.

Note 1:  If an applicant makes an eligibility payment or gives a deed of financial security (or both) for an amount less than the amount under subsection 36(2), see subsections 36(3) to 36(6).

Note 2:  If an applicant makes an eligibility payment or gives a deed of financial security (or both) for an amount more than the amount under subsection 36(2), see subsection 63(2) or 64(2) or paragraph 67(1)(a) for refund of the whole or part of the eligibility payment. Otherwise, see subsection 65(2) in relation to calculating the balance of the winning price.

(4)   No later than the new application deadline, an applicant may give the ACMA an updated application form.

(5)   If a deed of financial security (for paragraph (3)(b)) is given to the ACMA on behalf of the Commonwealth by email before the extended eligibility deadline, the original deed must be received by the ACMA no later than 3 working days after the extended eligibility deadline (or, if the ACMA agrees to a later time, the agreed time) for the application under subsection 28(1) or 34(2) to be valid.

1. Notice inviting new applicants to the auction

(1)   As soon as practicable after making any variations under subsections 37(1) and (2) the ACMA must publish on its website a notice that:

(a)invites persons, who are not already applicants, to apply to the ACMA to take part in the auction; and

(b)states the date and time, being the new application deadline, before which:

(i)completed application forms, completed deeds of acknowledgement and completed deeds of confidentiality by new applicants must be received by the ACMA; and

(ii)the application fee must be paid to the ACMA on behalf of the Commonwealth; and

(c)states the date and time, being the extended eligibility deadline, before which:

(i)completed eligibility nomination forms (being updated eligibility nomination forms) must be received by the ACMA; and

(ii)eligibility payments must be made to the ACMA on behalf of the Commonwealth, or deeds of financial security must be given to the ACMA on behalf of the Commonwealth, or a combination of both; and  

(d)states that applications may only be withdrawn before the extended eligibility deadline; and

(e)states that the applicant information package (with changes to the contents as a result of any variations under section 37) for the auction 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 auction by any method.

1. Making a new application

(1)   A person, who is not already an applicant (including a withdrawn applicant), may apply to become registered as a bidder in the auction by:

(a)    giving the ACMA a completed application form; and

(b)   giving the ACMA a deed of acknowledgement executed by the applicant; and

(c)    giving the ACMA a deed of confidentiality executed by the applicant; and

(d)   paying the application fee;

before the new application deadline.

Note:    For information on how an application fee must be paid, see section 9.

(2)   After the new application deadline and no later than the extended eligibility deadline, a new applicant must:

(a)give the ACMA a completed eligibility nomination form (being an updated eligibility nomination form), which:

(i)specifies the number of lots of each product desired by the applicant as valid provisional start demands of the applicant before the pre-bidding phase of the primary stage, at the starting price for the lots of the product; and

(ii)specifies the maximum eligibility points of the applicant, based on the specified provisional start demands; and

(iii)in relation to each product, either does not select a provisional minimum spectrum requirement, or selects only one option as the provisional minimum spectrum requirement, for the lots of each product; and

(b)in accordance with section 36, do one of the following:

(i)make an eligibility payment of an amount to the ACMA on behalf of the Commonwealth;

(ii)give the ACMA on behalf of the Commonwealth a deed of financial security, for an amount;

(iii)make an eligibility payment of part of an amount and give a deed of financial security for the remainder.

Note:   For information on how an eligibility payment is made, see section 9.  For information on how a deed of financial security is given, see section 7 and subsections 36(7) and 36(8).

(3)   For paragraph (2)(b), amount, in relation to a person, has the meaning given by subsection 36(2).

(4)   If, before the extended eligibility deadline, a new applicant has not:

(a)given the ACMA a completed eligibility nomination form (being an updated eligibility nomination form); and

(b)made an eligibility payment to the ACMA on behalf of the Commonwealth, or given a deed of financial security to the ACMA on behalf of the Commonwealth, or a combination of both;

in accordance with subsection (2), the applicant is taken to have withdrawn its application.

(5)   A new applicant may give the ACMA an updated document:

(a)for paragraph (1)(a), (1)(b) or (1)(c) – at any time until the new application deadline, but not after the new application deadline; or

(b)for paragraph (2)(a), or subparagraph (2)(b)(ii) or (2)(b)(iii) – at any time until the extended eligibility deadline, but not after the extended eligibility deadline.

(6)   If a deed of financial security (for subparagraph (2)(b)(ii) or (2)(b)(iii)) is given to the ACMA on behalf of the Commonwealth by email before the extended eligibility deadline, the original deed must be received by the ACMA no later than 3 working days after the extended eligibility deadline (or, if the ACMA agrees to a later time, the agreed time) for the application to be valid.

1. Statutory declarations and affiliations

(1)   If the ACMA receives a completed application form, deed of acknowledgement, deed of confidentiality and application fee from a new applicant under subsection 41(1), the ACMA must, after the new application deadline:

(a)give each applicant (including new applicants) updated details about the identity of all other applicants, and the persons identified as the associates of other applicants; and

(b)ask each applicant to make a statutory declaration stating whether the applicant is affiliated with another applicant and if so, identifying the other applicant and giving details of the affiliation.

(2)   The updated information does not need to include those applicants who have already withdrawn.

(3)   The ACMA must state a deadline, at least 10 working days after the date of the request, before which the statutory declaration must be received by the ACMA.

(4)   If an applicant does not give the ACMA a statutory declaration in accordance with subsection (3), the applicant is taken to have withdrawn its application.

(5)   If the ACMA is satisfied that two or more applicants are affiliated, the procedures in sections 33 and 34 apply.

Division 6                Withdrawal of applicant

1. Withdrawal of applicant

(1)   An applicant may withdraw its application before the eligibility deadline or extended eligibility deadline (if there is one), by giving the ACMA notice in writing.

(2)   If an applicant who withdraws its application under subsection (1), or who is taken to have withdrawn its application under another provision of this instrument, has made an eligibility payment under subsection 28(2) or 34(6) or 41(2) and in accordance with section 36, or an additional eligibility payment under subsection 39(3) for the purposes of section 36, the ACMA on behalf of the Commonwealth must refund the eligibility payment (including any additional eligibility payment) within the period specified in subsection 63(2).

(3)   Subsection (2) is subject to sections 75 and 77.

(4)   An applicant may not withdraw its application after the later of the eligibility deadline or extended eligibility deadline (if there is one).

(1)  The final round for bids on a lot is the first round of the secondary stage where one of the following applies:

(a)only one bid is made on the lot; or

(b)one or more exit bids, and no more than one continue bid, are made on the lot; or

(c)no bids are made on the lot.

Note 1:   For rules about bidding, see clauses 10, 11, 12 and 13.

Note 2:   The definition of bid in subclause 2(1) includes a bid that is taken to be made.

(2)  If, in relation to a round of the secondary stage, both of the following apply:

(a)the round was a round for bids on one or more lots; and

(b)after the round, the final round for bids on a lot has occurred for each lot;

the round is the final round of the secondary stage.

(3)  For a lot other than a lot for which no bids were made in the first round of the secondary stage, the final high bid is:

(a)if one bid was made on the lot in the final round for bids on the lot – that bid;

(b)if one continue bid was made on the lot in the final round for bids on the lot – that continue bid;

(c)if all of the following apply:

(i)no continue bid was made on the lot in the final round for bids on the lot;

(ii)two or more exit bids were made on the lot in the final round for bids on the lot;

(iii)one of those exit bids (the high exit bid) was greater than each of the other exit bids;

– the high exit bid;

(d)in any other case – selected in accordance with clause 15.

(4)  Subject to subclause 15(2), the bidder who made the final high bid on a lot is the secondary winner for that lot.

Note 1:      An exit bid may have been a continue bid in a previous round of the secondary stage, in accordance with clause 11.

Note 2:      The definition of bid in subclause 2(1) includes a bid that is taken to be made.

15            Tiebreaker for a lot

(1)  This clause applies in relation to a lot if:

(a)no continue bid was made on the lot in the final round for bids on the lot; and

(b)two or more exit bids were made on the lot in the final round for bids on the lot; and

(c)of those exit bids:

(i)two or more of those exit bids were equal (the tied exit bids); and

(ii)the tied exit bids were greater than each other exit bid mentioned in paragraph (b).

(2)  Where this clause applies, the secondary winner for the lot will be selected from the bidders who made the tied exit bids using a pseudorandom process.  The pseudorandom process must be conducted before the next round of the secondary stage (if any).

(3)  For the purposes of paragraph 14(3)(d), the final high bid on the lot is the amount of the last bid made by the secondary winner.

Part 5—Bringing the secondary stage to an end

16            End of rounds of the secondary stage

(1)  The rounds of the secondary stage will end immediately after:

(a)if:

(i)clause 15 applies in relation to a lot; and

(ii)for each other lot, either:

(A)  there is a secondary winner for the lot; or

(B)  there were no bids on the lot in the first round of the secondary stage;

– the pseudorandom process mentioned in subclause 15(2) occurs;

(b)in any other case – the final round of the secondary stage.

(2)  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.

17            Determination of secondary winners and secondary prices

(1)  Subject to subclause 15(2), a bidder who has the final high bid for a lot (the allocated lot), in accordance with subclause 14(4), as a result of the final round for bids on a lot in the secondary stage is a secondary winner in the secondary stage for the lot of the product.

(2)  For the purposes of subclause (3), the residual price for an allocated lot of a product in the secondary stage is an amount equal to:

(a)if there is only one bid on the lot – the starting price for the lot; or

(b)if there is more than one 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.

(3)  The secondary price to be paid by a secondary winner for all the allocated lots of each product of the secondary winner is the sum of all the secondary winner’s residual prices.

(4)  The secondary price calculated under subclause (3) must be rounded up to the next hundred.

Note:This clause relates to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act and is disallowable under section 42 of the Legislation Act 2003.

18            Results of the secondary stage

(1)  After the secondary winners and secondary prices are determined, the auction manager must tell each secondary winner, using the auction system:

(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 the primary stage and secondary stage):

(a)the total number of secondary winners who have been allocated a lot of a product; and

(b)for each lot allocated to a secondary winner, the product to which the lot belongs.

19            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 subclauses 18(1) and 18(2), the auction manager must tell each bidder that the secondary stage is completed.

Schedule 3—Rules for the assignment stage of the auction

(subsections 4(1) and 53(3))

Part 1—Application and interpretation

1              Application of Schedule

This Schedule applies to the lots of each product that were allocated to a bidder in the primary stage or secondary stage.

Note:   There is only a secondary stage if there is at least 1 product for which there was only 1 unallocated lot after the primary stage and there is at least 1 bidder who can make a bid on that lot.

2              Interpretation

In this Schedule:

assignment bid: see subclauses 5(1), 5(5) and 5(6).

assignment price means an amount charged for the assignment of a particular frequency range.

assignment round means a round in the assignment stage for the making of assignment bids for 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 winner: see subclause 8(7).

list of frequency range options includes a set of frequency range options.

results: see clause 9.

total assignment price: see subclause 8(8).

Note:For the definitions of size and total size, see subsection 5(2).

Part 2—Arrangements for assignment stage

3              Schedule for assignment rounds of the assignment stage

(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 24 hours between the completion of the primary stage and secondary stage (if any) 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)  The auction manager (using the auction system) will indicate to all bidders, before the first assignment round of a given day, the anticipated schedule of assignment rounds for that day at least 1 hour before the start time of the first assignment round of the day.  However, 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.

(6)  The auction manager has discretion over the duration of assignment rounds.

(7)  The auction manager has discretion over the order of the products that are to become the subject of an assignment round.

(8)  Two or more products may be the subject of a given assignment round. A product must not be the subject of more than one assignment round.

Part 3—Bidding in the assignment stage

4              Frequency range options in assignment rounds

(1)  Bidding in an assignment round is only open to bidders who were allocated, in the primary stage or secondary stage, at least one lot of a product that is the subject of the assignment round.

(2)  Subject to subclauses (3) and (4), for each product, the auction manager must determine a list of frequency range options available to each bidder so that:

(a)the frequency range included within each option for a bidder is a contiguous frequency range corresponding in bandwidth to the total size of the lots of the product that the bidder was allocated in the primary stage or secondary stage; and

(b)for each option in the list of frequency range options, there exists at least one frequency range option for every other bidder so that:

(i)each bidder’s frequency range complies with paragraph (a); and

(ii)none of the frequency ranges overlap.

(3)  If some lots of a product were not allocated in the primary stage or secondary stage (if any), the auction manager must, in determining the frequency range options available to each bidder, ensure that the frequency range assigned to:

(a)the unallocated lots of the product, other than the lower band products, will be a contiguous frequency range corresponding in bandwidth to the total size of those unallocated lots and adjacent to the frequency 27.5 GHz;

(b)the unallocated lots of any one of the lower band products will be a contiguous frequency range corresponding in bandwidth to the total size of the unallocated lots of that product.

(4)  For each upper band product, if, in the primary stage or secondary stage:

(a)one or more lots of the upper band product (the upper band lots); and

(b)one or more lots of the related lower band product (the lower band lots);

were allocated to a bidder, the auction manager must, in determining the frequency range options available to each bidder:

(c)if only one bidder was allocated lower band lots and upper band lots, ensure that the frequency ranges assigned to the lower band lots and the upper band lots will each be a contiguous frequency range corresponding in bandwidth to the size of the lower band lots and the upper band lots, as the case may be, and be adjacent to each other;

(d)if two or more bidders were allocated lower band lots and upper band lots, ensure that, for the bidder who was allocated the most lower band lots and upper band lots, the frequency ranges assigned to the lower band lots and the upper band lots will each be a contiguous frequency range corresponding in bandwidth to the size of the lower band lots and the upper band lots, as the case may be, and be adjacent to each other;

(e)if two or more bidders were allocated lower band lots and upper band lots and the total number of those lots is the same for each bidder, but the number of upper band lots is not the same, ensure that, for the bidder who was allocated the most upper band lots, the frequency ranges assigned to the lower band lots and the upper band lots will each be a contiguous frequency range corresponding in bandwidth to the size of the lower band lots and the upper band lots, as the case may be, and be adjacent to each other;

(f)if two or more bidders were allocated lower band lots and upper band lots and were allocated the same number of lower band lots and the same number of upper band lots, ensure that the lower band lots and the upper band lots each become the subject of an assignment round, however, the frequency ranges to be assigned for the lower band lots and the upper band lots need not be adjacent to each other.

Note:   For assignment rounds arising under paragraph (f), a frequency range assigned to lower band lots may not necessarily be adjacent to a frequency range assigned to upper band lots.

(5)  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 requirements of subclause (2) (subject to subclauses (3) and (4)) are met for each individual product in the group.

(6)  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.

5              Assignment bids

(1)  An assignment bid 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.

(2)  A bidder may submit a single assignment bid for any option in the list of frequency range options provided by the auction manager. A bidder is not permitted to bid for any other frequency range.

(3)  Except where subsection 54(1) or 54(2) applies, a bidder’s assignment bid is taken to have been made in an assignment round when the assignment bid has passed data validation checks that are performed by the auction system.

Note:   Subsection 54(1) allows the auction manager to permit an assignment bid to be made other than by using the auction system, in certain circumstances.  Subsection 54(2) allows the auction manager to permit an assignment bid to be made after an assignment round has ended, in certain circumstances.

(4)  A bidder may change, delete or replace an assignment 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 assignment bid that will be treated as binding for a bidder is the assignment bid in the auction system at the end time of the assignment round.

(5)  Any frequency range option for which no assignment bid is received, or for which an invalid assignment bid is received, is taken to have an assignment bid with a bid price of zero dollars.

(6)  If a bidder does not submit any assignment bid, the bidder will be taken to have bid zero dollars for every frequency range option.

6              Validity of assignment bids

An assignment bid is valid if:

(a)except where subsection 54(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 assignment bid is for a frequency range option made available to the bidder; and

(c)the amount bid for the frequency range option is a multiple of one hundred.

Note:   Subsection 54(2) allows the auction manager to permit an assignment bid to be made after an assignment round has ended, in certain circumstances.

Part 4—Determining winning assignment bids and assignment prices

7              Determination of winning assignment bids

(1)  After an assignment round has ended, the auction manager must determine the winning assignment bids for each product or group of products bid for in the assignment round and tell each winning assignment round bidder its winning assignment bid.

(2)  The winning assignment bids must be a combination of valid assignment bids such that:

(a)exactly one assignment bid (whether a submitted assignment bid or an assignment bid of zero dollars taken to have been made under subclause 5(5) or 5(6)) is selected from each bidder; and

(b)the frequency ranges included in any pair of winning assignment bids for a product or group of products do not overlap; and

(c)if relevant, the frequency range of any unallocated lots of a product is assigned in accordance with subclause 4(3);

(d)if relevant, subclause 4(4) is applied.

(3)  Subject to the constraints in subclause (2), the assignment bids selected must maximise the sum of the assignment bid prices.

(4)  If more than one combination of assignment bids meets the criterion in subclause (3), the winning combination must be selected by a pseudorandom process.

Note:This clause relates to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act and is disallowable under section 42 of the Legislation Act 2003.

8              Determination of assignment prices

(1)  The auction manager must determine the assignment price for each winning assignment bid in an assignment round and tell each winning assignment round bidder its winning assignment price for the frequency range.

(2)  If there is only one bidder in an assignment round, then the assignment price must be zero. Otherwise, the auction manager must determine the assignment price in accordance with the following subclauses.

(3)  The assignment price must be no more than the assignment bid price.

(4)  The assignment price may be zero.

(5)  Subject to the constraint in subclause (3), a set of assignment prices in the assignment round must be selected so that:

(a)there is no alternative bidder, or group of bidders, who (based on their assignment bids) would pay more than any winning assignment round bidder or group of winning assignment round bidders; 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 subclause (6).

(6)  For paragraph (5)(c), the formula is:

subject to  satisfying paragraphs (5)(a) and (5)(b),

where:

is a set of assignment prices.

is the index of each bidder (j) in the set of all bidders participating in the assignment round (J).

is the set of prices the bidders’ assigned lots would have had at the starting prices for the lots.

is the set of Vickrey prices for the 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 subclause 7(3) if bidder j had submitted 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 paragraph 27(1)(a) or 37(1)(a).

(7)  A bidder who has assignment prices for winning assignment bids in an assignment round is an assignment winner in the assignment stage for an assignment of a frequency range or frequency ranges to lots of a product or group of products.  

(8)  For the purposes of subclause (9), the total assignment price for assignment of a frequency range or frequency ranges to lots of a product or group of products in the assignment stage is an amount equal to the sum of the assignment prices for the assignment of all frequency ranges of the assignment winner.

(9)  The total assignment price is to be paid by the assignment winner.

(10)   The assignment prices calculated under subclause (5) must be rounded to the nearest hundred.

Note:This clause relates to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act and is disallowable under section 42 of the Legislation Act 2003.

Part 5—Bringing the assignment stage to an end

9              Results of the assignment stage

After the end of all assignment rounds, the auction manager must tell each winning assignment round bidder in writing:

(a)the frequency ranges assigned to the lots of each product that were allocated to the bidder in the primary stage or secondary stage; and

(b)any assignment price for the frequency ranges assigned.

10            End of the assignment stage

The assignment stage is complete when the auction manager has, under clause 9, notified all those bidders of the results of every assignment round.

Schedule 4 —Payment of balance of the winning price greater than zero and issue of spectrum licence

(subparagraphs 9(3)(b)(i) and 9(3)(c)(i), section 68, subparagraphs 75(1)(e)(i) and 75(1)(e)(ii) and paragraph 76(a))

Part 1—Application and interpretation

1              Application of Schedule

This Schedule applies to the payment of the balance of the winning price by a winning bidder that is greater than zero.

Note 1: The Minister has given a direction to the ACMA, under subsection 294(2) of the Act, to permit payment of a spectrum access charge in instalments, subject to the terms set out in the direction and so long as the precondition set out in the direction is met. See the spectrum access charges direction, available on the Federal Register of Legislation which may be accessed free of charge at 2: Paragraph 294(1)(b) of the Act provides that the ACMA may, by written instrument, make determinations specifying the times when spectrum access charges are payable.

Note 3: This Schedule is made under section 294 of the Act and is disallowable under section 42 of the Legislation Act 2003.

Note 4:   For information on how an amount must be paid, see section 9.

2              Interpretation

In this Schedule, a reference to a winning bidder is a reference to a winning bidder that has a balance of the winning price that is greater than zero.

Note 1:   For the definition of winning price, see subsection 65(1).

Note 2:   For the definition of balance of the winning price, see subsection 65(2).

Part 2—Election of winning bidder for payment of winning price

3              Payment of balance of the winning price

(1)   If the balance of the winning price for a winning bidder is an amount greater than zero, the ACMA must notify the bidder, in writing, of the following:

(a)the winning price;

(b)the effect on the winning price of any eligibility payments made under subsection 28(2) or 34(6) or 41(2) in accordance with section 36, or of an additional eligibility payment made under subsection 39(3) for the purposes of section 36;

(c)that the balance of the winning price may be paid in full;

(d)the date on which the balance of the winning price must be paid to the ACMA on behalf of the Commonwealth;

(e)that the winning price may be paid in 5 instalments in accordance with clause 4;

(f)the amount for each of the 5 instalments;

(g)the effect on an instalment amount of any eligibility payments made under subsection 28(2) or 34(6) or 41(2) in accordance with section 36, or of an additional eligibility payment made under subsection 39(3) for the purposes of section 36;

(h)the dates on which the 5 instalments must be paid to the ACMA on behalf of the Commonwealth;

(i)the date, not earlier than 10 working days after the date of the notice, by which the winning bidder must give the ACMA written notice whether it elects to pay the winning price:

(i)in full; or

(ii)in instalments.

(2)   If, by the date mentioned in paragraph (1)(i), a winning bidder gives the ACMA written notice that the bidder elects to pay the winning price in full, the ACMA must notify the bidder:

(a)that the ACMA has received the winning bidder’s election; and

(b)the date by which the balance of the winning price must be paid by the winning bidder to the ACMA on behalf of the Commonwealth.

(3)   If, by the date mentioned in paragraph (1)(i), a winning bidder gives the ACMA written notice that the bidder elects to pay the winning price in instalments, the ACMA must notify the bidder that:

(a)the ACMA has received the winning bidder’s election; and

(b)the instalment amounts must be paid by the winning bidder to the ACMA on behalf of the Commonwealth in accordance with clause 4; and

(c)a bank guarantee must be given to the ACMA on behalf of the Commonwealth, at the time and on the terms set out in the marketing plan, as a precondition to reaching an agreement with the ACMA for the payment of the winning price in instalments in accordance with clause 4.

Note: Under subsection 62(2) of the Act, the ACMA is not required to issue a spectrum licence unless the person to whom it is allocated either pays the spectrum access charge for issuing the licence, or reaches an agreement with the ACMA for the payment of that charge.

(4)   If the ACMA becomes aware that a notice under subclause (1) contains a material error, the ACMA must give the winning bidder a revised notice.

(5)   If a revised notice is given under subclause (4):

(a)the ACMA must include in the revised notice a date, not later than 10 working days after the date of the revised notice, by which the winning bidder may give the ACMA written notice whether it has elected to pay the winning price:

(i)in full; or

(ii)in instalments; and

(b)subclauses (2) and (3) apply as if the date mentioned in paragraph (1)(i) were the date included in the revised notice; and

(c)any previous notice given by the winning bidder under subclauses (2) or (3) is of no effect.

(6)   If, by the date mentioned in paragraph (1)(i), a winning bidder does not give the ACMA written notice whether it elects to pay the winning price in full or in instalments, the bidder is taken to have given the ACMA written notice that it elects to pay the winning price in full.

(7)   If, by the date mentioned in paragraph (1)(i), a winning bidder gives the ACMA written notice that it elects to pay the winning price in instalments, the winning bidder is not entitled to be issued a spectrum licence unless the winning bidder gives the ACMA on behalf of the Commonwealth the bank guarantee in accordance with subclause 3(3).

Note 1: If the winning bidder fails to pay an instalment other than the first instalment, the winning bidder, as the licensee of a spectrum licence, may contravene relevant licence conditions, as set out in the marketing plan, that are required to be included in the spectrum licence by section 67 of the Act.

Note 2: If any of the second instalment, third instalment, fourth instalment or fifth instalment are not paid in accordance with clause 4, the ACMA or the Commonwealth may require the authorised deposit-taking institution (within the meaning of the Banking Act 1959) that has issued the bank guarantee to pay the amount secured by the bank guarantee.

(8)   If a spectrum licence is issued to a winning bidder in accordance with subclause 5(2), each of the first instalment, second instalment, third instalment, fourth instalment and fifth instalment is not refundable in any circumstances.

(9)   If a bank guarantee is given to the ACMA on behalf of the Commonwealth by email before the time set out in the marketing plan, the original guarantee must be received by the ACMA no later than 3 working days after that time (or, if the ACMA agrees to a later time, the agreed time) for the bank guarantee to be taken to have been given to the ACMA on behalf of the Commonwealth.

4              Terms of payment by instalments

(1)   If a winning bidder elects to pay the winning price in instalments:

(a)the full amount of the winning price must be paid in 5 instalments; and

(b)each instalment must equal 20.32% of the winning price; and

(c)each instalment must be paid in accordance with the timeframes set out in subclauses (2) to (4).

(2)   The first instalment minus any eligibility payments already made by the winning bidder must be paid prior to the issue of a spectrum licence to the winning bidder.

(3)   The second instalment must be paid by:

(a)if the spectrum licence comes into force on the day on which it is issued—the day which is 12 months from that day; or

(b)if the spectrum licence comes into force later than the day on which it is issued—a day which is no earlier than 12 months from the day the spectrum licence is issued but no later than 12 months from the day the spectrum licence comes into force.

(4)   Each of the third, fourth and fifth instalments must be paid by:

(a)for the third instalment—the first anniversary of the day by which the second instalment was payable;

(b)for the fourth instalment—the second anniversary of the day by which the second instalment was payable;

(c)for the fifth instalment—the third anniversary of the day by which the second instalment was payable.

Example 1:       For a spectrum licence proposed to be issued and to come into force on 1 August 2021, and for which the winning price is $1,000,000, the instalments would be the following amounts payable by the following times, if an election to pay in instalments is made:

(a)   a first instalment of $203,200 minus any eligibility payments already made, by 31 July 2021;

(b)   a second instalment of $203,200 by 1 August 2022;

(c)    a third instalment of $203,200 by 1 August 2023;

(d)   a fourth instalment of $203,200 by 1 August 2024;

(e)    a fifth instalment of $203,200 by 1 August 2025.

If, in relation to the first instalment, there is a remainder for eligibility payments already made, the remainder will be deducted from the second instalment and any subsequent instalments (if necessary): see subclause 4(5).

Example 2:       For a spectrum licence proposed to be issued on 1 August 2021 and to come into force on 1 November 2021, the date by which the second instalment must be paid must be no earlier than 1 August 2022 but no later than 1 November 2022. If the due date of payment of the second instalment is 31 October 2022, each of the third, fourth and fifth instalments must be paid by 31 October each year in 2023, 2024 and 2025, respectively.

(5)   If any eligibility payments already made exceed the first instalment, the remainder will be deducted from the second instalment and, if necessary, any further remainders will be deducted from subsequent instalments.

Part 3—Issue of spectrum licences

5Issue of spectrum licence

(1)   If a winning bidder:

(a)elects to pay the winning price in full; and

(b)pays the balance of the winning price in accordance with subclause 3(2);

the winning bidder is entitled to be issued a spectrum licence for each part of the spectrum assigned to the lots allocated to the bidder in the auction.

Note: For the issue of spectrum licences, see section 62 of the Act.

(2)   If a winning bidder:

(a)elects to pay the winning price in instalments; and

(b)pays the first instalment in accordance with subclause 4(2); and

(c)gives the ACMA on behalf of the Commonwealth the bank guarantee in accordance with subclause 3(3);

the winning bidder is entitled to be issued a spectrum licence for each part of the spectrum assigned to the lots allocated to the bidder in the auction.

Note: For the issue of spectrum licences, see section 62 of the Act.

6Default

(1)   If a winning bidder:

(a)elects to pay the winning price in full; and

(b)does not pay the balance of the winning price in accordance with subclause 3(2);

then:

(c)the spectrum licence is not allocated to the winning bidder; and

(d)the allocation of spectrum licences under this instrument to other bidders is not affected; and

(e)section 70 applies to each lot (and associated spectrum assigned to each lot) that, but for this subclause, would have been included in a spectrum licence allocated to the winning bidder.

(2)   If a winning bidder:

(a)elects to pay the winning price in instalments; and

(b)either, or both:

(i)does not pay the first instalment in accordance with subclause 4(2); or

(ii)does not give the ACMA on behalf of the Commonwealth the bank guarantee in accordance with subclause 3(3);

then:

(c)the spectrum licence is not allocated to the winning bidder; and

(d)the allocation of spectrum licences under this instrument to other bidders is not affected; and

(e)section 70 applies to each lot (and associated spectrum assigned to each lot) that, but for this subclause, would have been included in a spectrum licence allocated to the winning bidder.

Note 1: If the winning bidder fails to pay an instalment other than the first instalment, the winning bidder, as the licensee of a spectrum licence, may contravene relevant licence conditions, as set out in the marketing plan, that are required to be included in the spectrum licence by section 67 of the Act.

Note 2: If any of the second instalment, third instalment, fourth instalment or fifth instalment are not paid in accordance with clause 4, the ACMA or the Commonwealth may require the authorised deposit-taking institution (within the meaning of the Banking Act 1959) that has issued the bank guarantee to pay the amount secured by the bank guarantee.

Note 3:   See section 75 for when certain breaches of this instrument have occurred and section 79 in relation to other rights of the ACMA and the Commonwealth.