Radiocommunications (Spectrum Licence Allocation—3.4/3.7 GHz Bands) Determination 2023 (Cth)

Radiocommunications (Spectrum Licence Allocation—3.4/3.7 GHz Bands) Determination 2023 The Australian Communications and Media Authority makes the following determination under sections 60 and 294 of the Radiocommunications Act 1992.

Dated 22 June 2023

James Cameron [signed] Member

Linda Caruso [signed] Member/General Manager

Contents Part 1—Preliminary 1 Name 2 Commencement 3 Authority 4 Interpretation 5 References to other instruments 6 Giving documents to the ACMA 7 Statutory declaration for body corporate 8 Signing or executing documents other than deeds and statutory declarations 9 Payments of amounts 10 Giving documents to bidders Part 2—Allocation of spectrum licences Division 1—How spectrum licences will be allocated 11 The allocation process Division 2—General allocation limits 12 Allocation limits 13 Applying allocation limits during bidding—assume all bids successful 14 Disregarding existing authorisations with less than 30% population reach 15 Unused allocation limit 16 Meaning of associate and relevant group of persons 17 Affiliation between applicants or bidders 18 Information relevant to considering whether applicants or bidders are affiliated Part 3—Arrangements to be made by the ACMA Division 1—Key settings and deadlines 19 The ACMA must appoint auction manager 20 The ACMA must set application fee 21 The ACMA must set application deadline and eligibility deadline 22 The ACMA must set lot ratings, eligibility point value and certain prices 23 The ACMA must approve forms 24 The ACMA must provide initial auction information to applicants 25 The ACMA may vary prices and lot ratings Division 2—Advertising the allocation process 26 Notice advertising allocation process 27 Applicant information package Part 4—Applying to participate Division 1—Confidentiality 28 Meaning of confidential information 29 Obligation not to disclose confidential information 30 Duration of confidentiality obligation 31 Reporting breach of confidentiality 32 Notice of breach of confidentiality 33 Deeds of confidentiality—related persons and contractors Division 2—Applying to be registered 34 Applying to be registered as a bidder 35 Application fee not refundable except in certain circumstances 36 Applicants to notify the ACMA if application information incorrect 37 Applicant to make statutory declaration about affiliation 38 Failure to give statutory declaration about affiliation Division 3—Eligibility points and leftover lots 39 Applying for eligibility points and to be allocated leftover lots 40 Who is eligible to apply for a leftover lot 41 Requirement to secure eligibility points 42 Number of eligibility points secured 43 Consequence of failing to secure eligibility points Division 4—Dealing with affiliations 44 Procedure if ACMA satisfied applicants are affiliated 45 Dealing with affiliation—new applicant 46 Initial auction information provided to new applicants Division 5—Dealing with changes to prices or lot ratings 47 Notice about updating application documents 48 Updating eligibility nomination form and financial security 49 Notice inviting additional applicants to the auction 50 Applying to be registered—additional applicants 51 Initial auction information for additional applicants 52 Statutory declarations and affiliations Division 6—Withdrawal of applications 53 Withdrawal of application Division 7—Registration of bidders 54 Registration process 55 Register of bidders 56 Bidders to notify the ACMA if register incorrect Part 5—Allocation procedures Division 1—Allocation of leftover lots 57 Allocation of leftover lots Division 2—General procedures for both auctions 58 Auction stages 59 Procedures if only one bidder 60 Auction rules 61 Auction manager's discretion to accept entries and bids 62 Action that auction manager may take in exceptional circumstances 63 Security of the auctions 64 Advising winning bidders of their auction results 65 Meaning of winning bidder and winning price Division 3—Dealing with affiliations during the allocation period 66 Affiliation between bidders during allocation period not permitted 67 Requirement to report affiliation 68 Allocation process continues despite possible affiliation 69 Consideration of affiliation 70 Statements about affiliations during an auction 71 Notification of affiliation during allocation period 72 Consequence of affiliation before assignment stage 73 Consequence of affiliation for 3.4 GHz auction—apportionment of unused allocation limit Division 4—Procedures relating to the 3.7 GHz auction 74 Preparation for bidding 75 Scheduling of auction rounds 76 Pre‑bidding round and first clock round of 3.7 GHz auction 77 Results of the 3.7 GHz auction Division 5—Procedures relating to the 3.4 GHz auction 78 Recalculation of unused allocation limit 79 Recalculation of eligibility points 80 Updating the register 81 Scheduling of auction rounds 82 Pre‑bidding round and first clock round of 3.4 GHz auction Division 6—Confirmation of results of allocation process 83 Notice and refunds to withdrawn applicants 84 Notice and refunds to unsuccessful bidders 85 Advising all bidders of results of allocation process Division 7—Payment and issue of licences 86 Spectrum access charge 87 Balance of the total winning price 88 Sufficient eligibility payment—issue of spectrum licence without further payment 89 Payment of balance of total winning price 90 Issue of spectrum licences after payment of balance 91 Default 92 Publication of allocation results Part 6—Auction rules Division 1—Rules for the primary stage Subdivision A—Application 93 Application of Division Subdivision B—Arrangements for primary stage 94 Bid increment percentage for primary stage 95 Eligibility requirement percentage for primary stage 96 Scheduling of clock rounds 97 Recess days 98 Entries by auction manager before pre‑bidding round 99 Information available for clock rounds of the primary stage Subdivision C—Bidding in the primary stage 100 Availability of lots in clock rounds of the primary stage 101 Pre‑bidding round 102 Making bids 103 Validity of bids 104 Eligibility points 105 Loss of eligibility points for inactivity Subdivision D—Processing of bids 106 Processing of bids 107 Processing algorithm 108 Applying an increase bid 109 Applying a decrease bid Subdivision E—Bringing the primary stage to an end 110 End of clock rounds 111 Allocation of lots to primary winners 112 Determination of primary prices 113 Results of the primary stage 114 End of the primary stage Division 2—Rules for the secondary stage Subdivision A—Application 115 Application of Division Subdivision B—Arrangements for secondary stage 116 Bid increment percentage for secondary stage 117 Scheduling of rounds 118 Recess days 119 Entries by auction manager before pre‑bidding round 120 Information available during rounds of the secondary stage Subdivision C—Bidding in the secondary stage 121 Availability of lots in rounds of the secondary stage 122 Availability of lots to particular bidders 123 Exclusion from further participation 124 Pre‑bidding round 125 Making bids 126 Validity of bids 127 Carry forward of certain continue bids Subdivision D—Bringing the secondary stage to an end 128 Conclusion of bidding on a lot 129 End of rounds of the secondary stage 130 Allocation of lots to secondary winners 131 Determination of secondary prices 132 Results of the secondary stage 133 End of the secondary stage Division 3—Rules for the assignment stage Subdivision A—Application 134 Application of Division Subdivision B—Arrangements for assignment stage 135 Determination of frequency range options 136 Auction manager must make frequency range options available 137 Scheduling of products and rounds Subdivision C—Bidding in the assignment stage 138 Availability of a product for bidding in rounds of the assignment stage 139 Making bids 140 Validity of assignment bids 141 Deemed zero dollar bids 142 Assignment rounds in which bidding is not required Subdivision D—Bringing the assignment stage to an end 143 Determination of winning assignment bids for an assignment round 144 Determination of assignment price for an assignment round 145 3.4 GHz auction—allocation of leftover lots to assignment winners 146 Assignment of frequency 147 Determination of total assignment price 148 Results of the assignment stage 149 End of the assignment stage Part 7—Miscellaneous 150 Unallocated spectrum 151 Applicants and bidders must not misuse auction system 152 The ACMA may obtain information from applicants and bidders 153 Use of information and documents by the ACMA 154 The ACMA to provide information to ACCC on request 155 Retention of eligibility payment or enforcement of deed of financial security for breach of auction procedures 156 Effect of retention on winning bidders 157 Application to Federal Court for return of retained amount 158 No liability of the ACMA, etc 159 Other rights not affected 160 Auction manager may delegate functions and powers