Electronic communications PART 1 INTRODUCTORY Citation, commencement and extent 1 1 These Regulations may be cited as the Wireless Telegraphy (Licence Award) Regulations 2007 and shall come into force on 8th March 2007. 2 These Regulations shall not extend to the Channel Islands or to the Isle of Man. Interpretation 2 In these Regulations— a “associate” means, in relation to an applicant or bidder, a person who has a material interest in that applicant or bidder; b “authorised person” means a person specified by an applicant in its application as authorised to bind that applicant for all purposes relating to the award process; c “bid” has the meaning given in regulation 16; d “bid deposit” has the meaning given in regulation 18; e “bidder” has the meaning given in regulation 10(1); f “bidding document” has the meaning given in regulation 15(a); g “bidder group” means, in relation to an applicant or bidder— i that applicant or bidder; ii each associate of that applicant or bidder; and iii each person in respect of whom the applicant or bidder has delivered to OFCOM a completed document in the form set out in Schedule 3; h “last day for withdrawal” has the meaning given in regulation (9)(1); i “licence” means the wireless telegraphy licence to establish or use stations for wireless telegraphy or install or use apparatus for wireless telegraphy in Northern Ireland operating in the frequencies 1785 megahertz to 1805 megahertz to be granted pursuant to these Regulations; j “material interest” means, whether held directly or indirectly:— i any interest (construed in accordance with sections 820 to 825 of the Companies Act 2006 in — aa shares carrying more than twenty five percent of the votes entitled to be cast at a general meeting of the applicant or bidder; or bb shares, where the consent of the holder of those shares is required for the conduct of any business of the applicant or bidder; or ii the right to appoint or remove a majority of the applicant’s or bidder’s board of directors; k “OFCOM’s bank account” means the bank account nominated by OFCOM for the purposes of the award process and published on their internet website; l “pounds” means pounds sterling; m “sealed bid” has the meaning given in regulation 17(2); n “sealed bid delivery period” has the meaning given in regulation 14(1)(a); o “valid bid” has the meaning given in regulation 22; p “winning bid” has the meaning given in regulation 23; and q “winning bidder” means the bidder who submitted the winning bid. PART 2 APPLICATION STAGE Applications for the grant of the licence 3 Applications for the grant of the licence shall only be made in accordance with the procedure set out in these Regulations. Application 4 1 Only a body corporate may apply to OFCOM for the licence. 2 A body corporate may only make one application. 3 To apply for the licence, a body corporate must, on the day specified by OFCOM for receipt of applications— a deliver a sealed envelope to OFCOM at Riverside House, 2a Southwark Bridge Road, London SE1 9HA or at Landmark House, The Gasworks, Ormeau Road, Belfast, BT7 2JD within the times on that day specified by OFCOM, containing — i a document containing the application information required by Schedule 1, completed in respect of the applicant and signed on its behalf by two authorised persons; ii a document, in the form set out in Schedule 2, completed in respect of the applicant and signed on its behalf by two authorised persons; iii for each person who is not an associate of the applicant which the applicant wishes to join its bidder group, a document in the form set out in Schedule 3, completed by the applicant (and signed on its behalf by two authorised persons) and completed by and signed by or on behalf of the person in respect of whom that document is completed; and b have paid into OFCOM’s bank account by a same day electronic transfer, with accompanying information which identifies the applicant, an initial deposit of twenty five thousand pounds. PART 3 QUALIFICATION STAGE Assessment of bidder groups 5 1 OFCOM shall give notice to each applicant of— a the name of each other applicant and the names of their associates; and b the latest time by which each applicant must notify OFCOM under paragraphs (3) and (4). 2 On receipt of that notice, each applicant shall examine the names of the other applicants and their associates and determine if any member of its bidder group is also an associate of another applicant or an applicant. 3 Where an applicant determines that a member of its bidder group is also an associate of another applicant or an applicant, it must notify the other applicant and OFCOM by the time specified in the notice given by OFCOM under paragraph (1) of that fact, and OFCOM shall specify a further time by which each applicant concerned must— a notify OFCOM of any change in circumstances the effect of which is that no member of its bidder group is an associate of another applicant or an applicant; and b where changes have occurred to its bidder group, provide OFCOM with revised versions of the documents provided under regulation 4(3)(a)(i) and (ii). 4 Where an applicant determines that no member of its bidder group is an associate of another applicant or an applicant it must notify OFCOM of that fact by the time specified in the notice given by OFCOM under paragraph (1). 5 If it appears to OFCOM from any application, that a member of one bidder group is also a member of another bidder group, OFCOM shall give notice of that fact to each of the applicants concerned and specify a day by which each applicant concerned must — a notify OFCOM of any change in circumstances the effect of which is that no member of its bidder group is also a member of another bidder group; and b where changes have occurred to its bidder group, provide OFCOM with revised versions of the documents provided under regulations 4(3)(a)(i), (ii) and (iii). 6 After the last day specified by OFCOM under paragraphs (3) and (5), OFCOM shall record the members of each applicant’s bidder group. Subsequent changes to bidder groups 6 1 After the recording by OFCOM of the members of each applicant’s bidder group, an applicant may change its bidder group but, in relation to the award process, the applicant shall be subject to regulations 7(2) and 26 if they apply to any such change. 2 Where the change involves the addition or removal of an associate, that applicant must notify OFCOM of the change and submit revised versions of the documents provided under regulation 4(3)(a)(i) and (ii). 3 To add a person who is not an associate of the applicant to its bidder group, an applicant must deliver to OFCOM a document in the form set out in Schedule 3 completed by the applicant (and signed on its behalf by two authorised persons) and completed by and signed by or on behalf of the person in respect of whom that document is completed. Determination of applicants who are qualified to bid 7 1 OFCOM shall determine whether each applicant who has submitted an application in accordance with regulation 4 is qualified to bid in the award process. 2 An applicant shall not be qualified to bid in the award process where a member of its bidder group is also a member of another applicant’s bidder group. 3 In making their determination under paragraph (1), OFCOM shall take into account whether— a the grant of a licence to the applicant would be prejudicial to the interests of national security; b the applicant is a fit and proper person to hold a licence having regard to the probity of— i the applicant; ii each member of the applicant’s bidder group; and iii any director of any member of the applicant’s bidder group; c any of the information submitted to OFCOM by the applicant in connection with the award process is false or misleading; d any member of the applicant’s bidder group has colluded, or attempted to collude, or is colluding or attempting to collude, with another person to distort the outcome of the award process; e any member of the applicant’s bidder group has acted or is acting in a way which is likely to distort the outcome of the award process; f any member of the applicant’s bidder group, or any person to whom confidential information has been disclosed, has disclosed, or is disclosing or attempting to disclose or has incited or is inciting another person to disclose, any confidential information, whether directly or indirectly, to any person except where the disclosure was— i to a member of the applicant’s bidder group; ii to OFCOM; iii for the purpose of raising finance for the applicants’ application and was to a provider of finance; or iv for the purpose of enabling the recipient to decide whether to participate as a member of the applicant’s bidder group; g any member of the applicant’s bidder group has obtained or is obtaining or attempting to obtain confidential information relating to another applicant; h any member of the applicant’s bidder group is receiving or is attempting to receive services in relation to the award process from any person who has provided or is providing services to OFCOM in relation to the award process; and i any person who is a member or a director or employee of a member of the applicant’s bidder group and also a director or employee of a member of another bidder group is— i taking part in the preparation of both bidder groups for participation in the award process; or ii receiving confidential information relating to both bidder groups. 4 Applicants must, by a time notified by OFCOM, provide to OFCOM any information or documentation which OFCOM require to make their determination. 5 If an applicant does not provide such information or documentation within the notified time, OFCOM shall also take that fact into account in making their determination. 6 Where OFCOM determine that an applicant is not qualified to bid in the award process, that applicant’s initial deposit shall not be forfeited for that reason. Publication of determination 8 1 OFCOM shall notify each applicant of their determination under regulation 7(1). 2 OFCOM shall also notify each applicant qualified to bid of the identity of the other applicants who are so qualified and shall publish the identity of all applicants who are qualified to bid in the award process on OFCOM’s internet website. Withdrawal of an application 9 1 OFCOM shall notify each applicant qualified to bid of the last day for withdrawal from the award process and shall publish the last day for withdrawal on OFCOM’s internet website (“the last day for withdrawal”). 2 If, on or before the last day for withdrawal, OFCOM receive notice of an applicant’s intention to withdraw its application, signed by two authorised persons of that applicant, the application shall be withdrawn and the applicant shall be excluded from the award process and OFCOM shall— a notify all other applicants of the withdrawal; and b refund, on completion of the award process, the applicant’s initial deposit except where the initial deposit has been forfeited under regulation 26. 3 Once an applicant withdraws its application, that applicant shall not be re-admitted to the award process. Determination of number of bidders 10 1 After the last day for withdrawal, OFCOM shall determine the number of applicants who are qualified to bid for the licence and have not withdrawn from the award process (“bidders”). 2 Where there are no bidders, OFCOM shall complete the award process by refunding to applicants who were not qualified, or withdrew in accordance with regulation 9, the initial deposits (where such deposits have not already been forfeited under regulation 26) but not any interest which has accrued on the deposits. 3 Where there is only one bidder, OFCOM shall grant a licence in accordance with the procedure set out in Part 4 of these Regulations. 4 Where the number of bidders is more than one, OFCOM shall grant licences in accordance with the procedure set out in Part 5 of these Regulations. 5 OFCOM shall publish the identity of the bidders on OFCOM’s internet website along with a statement of whether OFCOM will proceed to grant licences in accordance with Part 4 or Part 5 of these Regulations. PART 4 PROCEDURE WHERE THERE IS ONLY ONE BIDDER Payment of licence fee 11 1 Where there is only one bidder, OFCOM shall give notice to that bidder of the day by which that bidder must pay into OFCOM’s bank account with accompanying information that identifies the bidder, a sum determined in accordance with paragraph (3). 2 The licence fee shall be fifty thousand pounds. 3 The sum which that bidder shall pay to OFCOM shall be— a where the initial deposit has not been forfeited in accordance with regulation 26, a sum equal to the licence fee less the initial deposit; b where the initial sum has been so forfeited, a sum equal to the licence fee. 4 If the bidder fails to make payment in accordance with this regulation it shall— a not be entitled to the grant of the licence; and b not receive a refund of its initial deposit, which shall (where it has not already been forfeited under regulation 26) be forfeited. Grant of licence 12 Where OFCOM have received from the bidder the sum determined in accordance with regulation 11(3) by the time specified, OFCOM shall grant the bidder the licence. Completion of the award process 13 After the grant of a licence, OFCOM shall complete the award process by — a publishing on their internet website the identity of the person to whom the licence has been granted and the total licence fee paid; and b refunding to applicants who were not qualified, or withdrew in accordance with regulation 9, the initial deposits (where such deposits have not already been forfeited under regulation 26) but not any interest which has accrued on the deposits. PART 5 PROCEDURE WHERE THERE IS MORE THAN ONE BIDDER Notice to bidders 14 1 Where there is more than one bidder, OFCOM shall give notice to each of the bidders of— a the day on which and the times on that day within which sealed bids must be delivered to OFCOM (the “sealed bid delivery period”); b the identity of all bidders; and c a password which the bidder must specify on its bidding document to confirm that it has originated from that bidder. 2 OFCOM shall publish on their internet website the identity of the bidders to whom OFCOM have given notice and the sealed bid delivery period. Bid documentation 15 The bid documentation shall consist of— a a document in the form set out in Schedule 4 completed by the bidder in accordance with regulation 16, signed on its behalf by two authorised persons and bearing that bidder’s password (a “bidding document”); and b a document in the form set out in Schedule 5, completed in respect of the bidder and signed on its behalf by two authorised persons. Completion of the bidding document 16 Where a bidder wishes to specify a sum on the bidding document which it commits to pay for the licence (a “bid”) it must specify an amount in whole pounds in words and figures which must be greater than or equal to fifty thousand pounds. Submission of sealed bids to OFCOM 17 1 The completed bid documentation must be placed in a non-transparent envelope and sealed. 2 The sealed non-transparent envelope containing the bid documentation constitutes a sealed bid. 3 Sealed bids must be delivered to OFCOM at Riverside House, 2a Southwark Bridge Road, London SE1 9HA or Landmark House, The Gasworks, Ormeau Road, Belfast BT7 2JD and be placed in the box marked for delivery of sealed bids during the sealed bid delivery period. 4 Only a bidder may submit a sealed bid to OFCOM. 5 A bidder may only submit one sealed bid. Bid deposit 18 1 In addition to the initial deposit paid at the time of application, a bidder must, on the day specified for delivery of sealed bids under regulation 14, pay into OFCOM’s bank account by a same day electronic transfer, with accompanying information which identifies the bidder, a further sum in pounds as a deposit. 2 The further sum to be paid under paragraph (1) shall— a where the initial deposit has not been forfeited in accordance with regulation 26, be a sum representing the difference between— i the bidder’s initial deposit; and ii the sum which that bidder has specified on the bidding document; or b where the initial deposit has been forfeited in accordance with regulation 26, the sum which that bidder has specified on the bidding document. 3 The total amount on deposit after payment of the further sum constitutes the bid deposit. Opening of sealed bids 19 OFCOM shall only open sealed bids which were submitted to OFCOM in accordance with regulation 17(1) and (3) and shall reject sealed bids which were not so submitted. Incomplete or defective completion of bid documents 20 1 Where, due to the manner of completion, bid documentation is incomplete or defective but OFCOM can identify the bidder and ascertain the bidder’s intention in relation to the bid, OFCOM shall ask the bidder to confirm in a notice to OFCOM by a specified time that OFCOM have correctly identified the bidder and ascertained its intention in relation to the bid. 2 Where the bidder confirms in a notice given to OFCOM by the time required which is signed by at least two authorised persons of that bidder that OFCOM have correctly identified the bidder and ascertained the bidder’s intention, the sealed bid in its entirety shall be accepted by OFCOM on that basis. 3 Where the bidder does not confirm in a notice given to OFCOM by the time required which is signed by at least two authorised persons of that bidder that OFCOM have correctly identified the bidder and ascertained the bidder’s intention, the sealed bid in its entirety shall be rejected by OFCOM. Rejection of opened sealed bids from the award process 21 1 OFCOM shall also reject and exclude from the award process the entirety of an opened sealed bid where— a in any case where regulation 20(1) does not apply, the bidder has not completed the bid documentation in accordance with the requirements of these Regulations; b the sealed bid was submitted by a person other than a bidder; c the bidder has submitted more than one sealed bid; or d the entirety of the bid deposit has not been paid into OFCOM’s bank account in accordance with regulation 18. 2 OFCOM shall notify any bidder whose sealed bid has been rejected and shall give reasons for the rejection. 3 OFCOM shall also notify any bidder to whom a notice was given under regulation 14(1) but in respect of whom a sealed bid was not opened. Valid bids 22 1 Only bids specified on a bidding document in accordance with regulation 16 and contained in a sealed bid which has not been rejected by OFCOM (“valid bids”) shall be taken into consideration for the purpose of determining the winning bid. 2 Any bidder to whom a notice was given under regulation 14(1) who does not submit a valid bid shall be excluded from the award process and shall not receive a refund of its initial deposit, or its bid deposit where a bid deposit has been paid, which shall (where not already forfeited under regulation 26) be forfeited. Winning bid and determination of licence fee 23 1 The winning bid shall be the highest valid bid. 2 In the event that there is more than one bid of equal highest value, OFCOM shall employ a method of random selection amongst those bids to determine which amongst them shall be the winning bid. 3 The licence fee shall be the sum equal to the amount the highest valid bid that was not the winning bid except where there are no valid bids other than the winning bid, in which case the licence fee shall be fifty thousand pounds. Grant of licence and payment of refund to winning bidder 24 1 After determining the winning bid, the identity of the winning bidder and the licence fee in accordance with regulation 23, OFCOM shall— a grant the winning bidder the licence; and b refund to the winning bidder the difference between its bid deposit and the licence fee. Completion of the award process 25 After the grant of the licence, OFCOM shall complete the award process by— a publishing the details of all valid bids, the identity of all bidders and the person to which the licence was granted, and the licence fee paid; and b refunding to applicants who were not qualified or who withdrew in accordance with regulation 9 and to unsuccessful bidders the initial deposits or bid deposits, where such deposits have not been forfeited under regulation 22(2) or 26, but not any interest which has accrued on the deposits. PART 6 ACTIVITY RULES Forfeit of deposit and exclusion from award process 26 If, in relation to an applicant who is qualified to bid or a bidder, OFCOM are satisfied that any of the events set out in regulation 27 are occurring (or have occurred) and that the occurrence would materially affect the outcome of the award process— a the initial deposit, or the bid deposit where a bid deposit has been paid, shall be forfeited by, and not refunded to, the applicant or bidder concerned; and b that applicant or bidder may also be excluded by OFCOM from the award process by OFCOM giving that applicant or bidder notice in writing. Events 27 The events referred to in regulation 26, in relation to an applicant who is qualified to bid or bidder, are — a the submission to OFCOM of any information in connection with the award process which is false or misleading; b any member of that applicant’s or bidder’s bidder group is colluding or attempting to collude with another person to distort the outcome of the award process; c any member of that applicant’s or bidder’s bidder group is acting in a way which is likely to distort the outcome of the award process; d any member of that applicant’s or bidder’s bidder group, or any person to whom confidential information has been disclosed, is disclosing, or attempting to disclose, or inciting another person to disclose, any confidential information, whether directly or indirectly, to any person except where the disclosure is— i to a member of that applicant’s or bidder’s bidder group; ii to OFCOM; iii for the purpose of raising finance for a bid and is to a provider of finance; or iv for the purpose of enabling the recipient to decide whether to participate as a member of the applicant’s or bidder’s bidder group; e any member of that applicant’s or bidder’s bidder group is obtaining or attempting to obtain confidential information relating to another applicant or bidder; f any member of that applicant’s or bidder’s bidder group is receiving or is attempting to receive services in relation to the award process from any person who has provided or is providing services to OFCOM in relation to the award process; g any person who is a member or a director or employee of a member of that applicant’s or bidder’s bidder group and also a director or employee of a member of another bidder group is— i taking part in the preparation of both bidder groups for participation in the award process; or ii receiving confidential information relating to both bidder groups; h a member of that applicant’s or bidder’s bidder group is or becomes a member of another applicant’s or bidder’s bidder group; i a change is occurring in the membership of that applicant’s or bidder’s bidder group from that notified to OFCOM in its application except as a result of— i a person ceasing to be a member of that bidder group; ii a person joining that bidder group under the procedure in regulation 6(3); iii a person becoming an associate through merger or acquisition activity provided that such activity is not for a purpose related to the award process. PART 7 MISCELLANEOUS General power of exclusion 28 OFCOM may, at any time, notify any applicant or bidder of its exclusion from the award process if, in their opinion, the grant of a licence to that applicant or bidder would be prejudicial to the interests of national security or the applicant or bidder is not a fit and proper person to hold a licence. Notification to OFCOM 29 If, in accordance with any provision of these Regulations, an applicant or bidder is required, or wishes, to notify OFCOM of any fact or circumstance, it must do so by notice in writing which is marked for the attention of the OFCOM personnel which are specified by OFCOM for that purpose on their internet website and must deliver that notice to OFCOM— a by personal delivery to Riverside House, 2a Southwark Bridge Road, London, SE1A 9HA; b by fax to a number dedicated to the award process which is published by OFCOM on their internet website; or c by electronic mail to an electronic mail address dedicated to the award process which is published by OFCOM on their internet website. Changes to timing or location 30 1 Paragraph (2) applies where OFCOM determine that it is impracticable for any reason— a for any document which is to be delivered to OFCOM’s premises under these Regulations to be delivered at the place or within the times specified under these Regulations; or b for any action which is required to be undertaken in accordance with these Regulations to be completed within the times specified. 2 Where this paragraph applies, OFCOM shall take all reasonable steps to notify applicants and bidders that— i delivery must be made on a different day or within different times on that day or at a different place; ii the action must be completed on a different day or within different times. Refunds 31 OFCOM may, in such cases as they think fit, refund, in whole or in part, sums which have been paid to them in accordance with any provision of these Regulations or the licences. Ed Richards Chief Executive of the Office of Communications For and by the authority of the Office of Communications 14th February 2007