Q: Do the auction regulations have to be laid in Parliament?
A: Section 122 of the Wireless Telegraphy Act 2006 sets out the requirements which apply to these regulations. There is no requirement saying that the regulations need to be laid in Parliament, or subject to affirmative vote in Parliament, and therefore, by default, there is no Parliamentary procedure which applies.
Q: How will Ofcom ensure the behaviour of their staff do not give rise to allegations that the outcome of the spectrum awards process has been prejudiced?
A:Stakeholder Engagement Rules
Q: It is not entirely clear to us whether Annex 5 forms can be completed by particular named individuals or must be completed by the corporate entities by which they are employed. While all references in the document are to the ‘name of a person’ and Part 2 (c) appears to be a reference to personal knowledge of the relevant Regulations, part 2 (b) in relation to subsidiaries suggests a corporate identity.
In our particular case we would like to add certain partners and associates of [✂] to our applicant group. While [✂] have conducted a conflict check to ensure that they are not acting on behalf of any known bidders. However for such a large multi-office firm, we are concerned about being held responsible under Regulation 114 for the actions of individuals completely unknown to us (eg. a partner or associate in an overseas office of the firm).
Therefore, we would propose to complete Annex 5 forms in respect of named individuals but we will also inform Ofcom of the entities for which they work.
Q: Under section 4(b) on page 3 of the application form we have been asked to include “the names of all other members of the applicant group (as defined in the Regulations) in respect of which the applicant has completed a document...”. Further to this, in the Schedule 5 Document for Member of Applicant’s Applicant Group or Bidder Group who is not an Associate we have been asked to “[insert name of person to be included in applicant or bidder group who is not an associate]” and the document should be signed on page 3 on behalf of that “person”.
In the context of our external advisors, we have taken both references above to “member of the applicant group” and “person” to mean the organisation which employs a number of individuals who will be performing the advisory work and not the individuals themselves. The only place where one of the individuals’ names has been included is on page 3 of the Schedule 5 document where a signature is required on behalf of the organisation.
Could you please confirm that this approach is correct and that you do not indeed require the names of the individuals that will be performing the advisory work other than the name on page 3 of the Schedule 5 document.
A: (for the above 2 questions) Thank you for your email. In general, Ofcom does not give legal advice on the interpretation of the Wireless Telegraphy (Licence Award) Regulations 2012 (“the Regulations”), and it is for applicants to determine which persons should provide a document in the form set out in Schedule 5 to the Regulations.
However, we would note that Ofcom wishes to receive Schedule 5 documents from legal entities (in your case the law firm itself) rather than the specific individual employees, partners or directors of those legal entities. It will then be those legal entities that become members of the applicant/bidder group, and relevant provisions of the Regulations (including those in relation to confidential information) will apply to them accordingly.
Q: [Confidential question about the disclosure of confidential information]
A: Disclosure of confidential information to anyone that is not a member of the applicant’s or bidder’s bidder group (with certain limited exceptions, such as disclosure to providers of finance for the purpose of raising finance for a bid) may mean that the applicant does not qualify to take part in the award -see in particular Regulation 9 of the Wireless Telegraphy (Licence Award) Regulations 2012 (the ‘Regulations’) - or if already qualified, may lose their deposit and may be excluded from the award – see in particular the activity rules set out in Part 5 of the Regulations. The disclosure of confidential information is not prohibited where such disclosure is made to a person for the purposes of enabling that person to decide whether to participate as a member of the applicant’s or bidder’s bidder group. The interpretation of confidential information is set out in Regulation 2 of the Regulations. A copy of the Regulations.
Applicants should therefore consider including in their applicant or bidder group (in addition to associates) all organisations with whom they may have discussions that may involve the disclosure of confidential information. In relation to each such person that an applicant wishes to join its applicant group, an applicant must provide to Ofcom a document in the form set out in Schedule 5 to the Regulations.
The application forms (PDF, 62.4 KB) (including the form set out in Schedule 5 to the Regulations).
Ofcom has also published guidance to potential applicants and bidders which is available at: http://stakeholders.ofcom.org.uk/binaries/spectrum/spectrum-awards/awards-in-progress/key-documents/guidance-dec-2012.pdf
Q: I refer to The Wireless Telegraphy (Licence Awards) Regulations 2012 (“the Regulations”) and the forthcoming auction of 800 MHz and 2.6 GHz mobile spectrum. I also refer to paragraphs 7.9 and 7.10 of the Information Memorandum dated 24 July 2012.
I have set out below questions in relation to which [✂] would be grateful for an urgent response. Further to paragraph 7.10 of the Information Memorandum.
- Pursuant to the Regulations, it appears to be possible for the intended ultimate licensee of any spectrum awarded pursuant to the auction to be a member of an applicant group (and subsequent bidder group) but not an associate due to the operation of regulations 4(3)(a)(ii) and 4(3)(iii)(ee). Moreover, the identity of the intended ultimate licensee would not be disclosed to third parties under regulations 5 and 11. Can Ofcom confirm our understanding of the Regulations?
- Can Ofcom also confirm that it would not consider such an arrangement in and of itself as (i) grounds for disqualification under regulation 9 (fitness to hold a licence), (ii) amounting to the submission of information which is false or misleading (regulation 114(2)(a)) or (iii) action likely to distort the outcome of the awards process (regulation 114(c))?
A: Please note that Ofcom is not in a position to give legal advice on the effects of the Regulations, and parties considering participating in the auction should therefore seek their own advice.
However, in relation to your first question, it appears to us that your understanding of the effect of the relevant provisions of the Regulations is correct, subject to any disclosures required to be made by Regulation 5(3) and Regulation 5(4).
Your second question relates to specific discretions that Ofcom may exercise during the auction process based on all relevant facts at the relevant time. As such, it is not appropriate to give a definitive view in advance on how any such discretion may be exercised.
Q: Must the bank account details recorded on the auction application form correspond to an account that is held in the same name of the applicant? Can deposit money be paid on behalf of the applicant from a different account to the one listed on the application form, including an account not held in the name of the applicant?
Q: I am writing on behalf of [✂]. We have a question about payment of the deposit monies. We would like to make the payment of the deposit from the UK bank account of another of [✂]’s subsidiaries, namely [✂]. [✂] is not strictly an “Associate” of [✂], but will be a member of the bidder’s group. Is it acceptable to make the payments from a [✂] bank account, if the payment is marked with a reference identifying the applicant/ bidder, i.e. [✂]?
A: (for the above 2 questions) Thank you for your email. We have set out below some further guidance in relation to both payments made by an applicant/bidder to Ofcom, and refunds that may be payable by Ofcom to an applicant/bidder in accordance with the Regulations. We intend shortly to publish this further guidance in an update to the bidder guidance we originally published on our website on 16 November.
Q: In the Information Memorandum the draft licences for unpaired TDD 2600MHz spectrum are not explicit as to what emission mask must be respected by single pieces of equipment operating at restricted power levels (25dBm/5MHz EIRP) with a carrier spanning both the restricted and unrestricted blocks (e.g. indoor low power base stations operating with a single carrier of 10MHz channel bandwidth). Will Ofcom please confirm that such equipment would be subject to the "Alternative block-specific requirements" in section 8(b) of the draft licence (i.e. such equipment deployment would be subject to emission limits no more stringent than -22dBm/MHz at any point in the 2500-2690MHz band).
A: In the example given above, the base station cannot use the alternative block specific requirements.
The licence for unpaired frequencies specifies that for downlink transmissions on unrestricted frequencies, the EIRP at any frequency outside the permitted frequency blocks shall not exceed the higher (least stringent) of (a) the baseline requirements and (b) the block specific requirements. For frequencies in the range 2500 to 2615 MHz, the baseline requirement is −45dBm/MHz.
A 10 MHz base station as described above will be transmitting on unrestricted frequencies, and the alternative block specific requirements would not provide compliance with the technical licence requirements applicable to emissions outside the permitted frequency blocks.
Payments to Ofcom
Ofcom’s preference is for all payments to Ofcom to be made in GBP from one bank account, but this does not necessarily have to be in the name of the applicant or bidder. The details of this bank account should be provided on the application form. In addition, any payment to Ofcom must clearly identify the applicant/bidder in accordance with the Regulations.
Refunds to the applicant/bidder
In relation to any refunds payable by Ofcom to an applicant or bidder in accordance with the Regulations, Ofcom will only pay such refunds to a bank account in the name of the applicant or bidder. Applicants or bidders should therefore ensure that they have a bank account open in their own name for this purpose, and should provide details of this account (if different from the account they will use to make payments to Ofcom), on their application form.
If any applicant is not in a position to provide details on its application form of the account to which refunds are to be made, it should provide these details to Ofcom as soon as possible after application.
