Australia: Telecoms

Telecommunications regulation in Australia has long been a topic of intense political and regulatory attention. Fixed-line incumbent Telstra Corporation was corporatised and privatised as a vertically integrated company from 1989 to 2006. Full competition in the telecommunications sector commenced in the late 1990s, and has continued to develop at a gathering pace (particularly in the past few years). However, it has long been thought in some quarters that the continuing vertical integration of Telstra has stifled development of effective competition. The result, historically, has been the imposition of extensive regulatory obligations on Telstra.

Since 2009, we have seen significant regulatory reform. Areas of particular focus included establishing the regulatory settings for the government-owned National Broadband Network (NBN), implementing more severe vertical separation of Telstra, and a renewed focus on consumer protection standards.

Telecommunications regulation in Australia

The federal Competition and Consumer Act 2010 (CCA) contains special provisions regulating competition in the telecommunications industry. In addition to the general application of the Australian Consumer Law and general competition law prohibitions, which are described in other chapters, there is an ex post anticompetitive conduct regime for the telecommunications sector and an ex ante regime for access to certain telecommunications services. These are described in more detail below.

The CCA is supplemented by the Telecommunications (Consumer Protection and Service Standards) Act 1999, which currently includes provision for the Universal Service Obligation (USO), and certain customer service and fault rectification standards.

It is also supplemented by the Telecommunications Act 1997, which includes a wide range of technical regulation, as well as a facilities access regime.1 As part of the Australian government’s regulatory changes to facilitate the NBN in 2009, the Telecommunications Act 1997 was amended to require Telstra to structurally separate or face a range of additional regulatory restraints, including mandatory functional separation and the possibility of being prevented from participating in certain spectrum auctions.2

The telecommunications anticompetitive conduct regime: part XIB of the CCA

Part XIB applies certain general competition law provisions of part IV of the CCA (described in other chapters) to telecommunications carriers and carriage service providers (CSPs) via the so-called ‘competition rule’. A ‘carrier’ is a person holding a carrier licence to own a ‘network unit’ (generally a telecommunications line or radiocommunications facility) used to supply a carriage service to the public. A ‘CSP’ is a person who supplies a carriage service to the public using a network unit owned by a carrier.3

A carrier or CSP may breach the competition rule if it contravenes certain provisions of part IV in respect of a telecommunications market.

A carrier or CSP may also breach the competition rule if it has a substantial degree of market power in a telecommunications market and takes advantage of that power with the effect, or likely effect, of substantially lessening competition in any telecommunications market, or takes advantage of that power and engages in other conduct, and the combined effect, or likely effect, is to substantially lessen competition in any telecommunications market.

The principal regulator of competition matters in the telecommunications industry is the Australian Competition and Consumer Commission (ACCC). The ACCC can issue two types of ‘competition notices’ (a part A notice or a part B notice) if it has reason to believe that a carrier or CSP has contravened or is contravening the competition rule. If (and only if) a carrier or CSP to whom a part A notice has been issued continues to engage in the conduct the subject of the notice, the ACCC may apply to the Federal Court of Australia for pecuniary penalties against the carrier or CSP. A part B competition notice will be more detailed than a part A competition notice and is prima facie evidence of the information within it in any court proceedings against the carrier or CSP.

Pecuniary penalties under part XIB of the CCA are severe. The maximum penalty per contravention is A$10 million plus A$1 million for each day the contravention continues; or, if the contravention continues for more than 21 days, A$31 million plus A$3 million for each day the contravention continues in excess of 21 days. Injunctions and compensatory damages may also be ordered.

The telecommunications access regime: part XIC of the CCA

Part XIC of the CCA is an ex ante access regime specific to the telecommunications industry.

The ACCC may, if it believes it to be in the long-term interests of end-users,4 declare that a particular telecommunications service is a ‘declared service’ and so must be supplied to access seekers upon request. Currently, the declared services include fixed originating and terminating access, wholesale line rental, a local carriage service, an unconditioned local loop service, a spectrum-sharing service, wholesale ADSL, a local bitstream access service, a domestic transmission capacity service, a mobile terminating access service and the Foxtel (digital set-top unit) service. All services supplied by an NBN corporation are also ‘declared services’.5 The ACCC also recently issued a draft decision to declare a superfast broadband service.6

Part XIC empowers the ACCC to determine the terms of access to declared services, taking into account the long-term interests of end users and other criteria on an upfront and industry-wide basis (and without waiting for disputes to arise).7 The terms of access are determined by the ACCC under ‘access determinations’ that set terms and conditions of access to declared services for all access seekers (or only some access seekers, if appropriate), for a set period of time.8 However, any alternative terms and conditions that are agreed between an access provider and access seeker will prevail to the extent of any inconsistency, so the regime essentially gives primacy to commercial negotiations.9 The ACCC also has broad powers to make ‘binding rules of conduct’ where it considers there is an urgent need to do so.10

Access providers have the ability to propose terms and conditions of access to services that have not yet been declared by the ACCC under ‘special access undertakings’. This is intended to ensure that new investors will have certainty about the terms and conditions on which they will be required to provide wholesale access to new services.11

Part XIC is complemented by a separate facilities access regime in schedule 1 to the Telecommunications Act 1997. This provides carriers (but not CSPs) with a right to request access to another carrier’s facilities (primarily, but not limited to, exchanges, towers and underground facilities)12 for the sole purpose of establishing their own facilities or providing competitive facilities or carriage services. The other carrier must generally comply if it is ‘reasonable’ to do so (which takes into account, again, the long-term interests of end users).13 Disputes in relation to the terms and conditions of access may be arbitrated by the ACCC.14 Despite the specific regime in the Telecommunications Act 1997, part XIC may also apply to facilities access. The ACCC has recently stated that it may set terms and conditions for facilities access, including price terms, under an access determination under part XIC for a currently declared service where the facilities access service facilitates the supply of the declared service or under an access determination for a new declared service.15 The ACCC is currently considering whether to commence a declaration inquiry for access to underground facilities.16 Changes to schedule 1 to the Telecommunications Act 1997 currently before Parliament clarify that schedule 1 will no longer apply where the ACCC declares a facilities access service under part XIC.17

Pricing for fixed-line declared services

Previously, the ACCC took the view that the prices of declared services should be cost-based to reflect the ‘total service long-run incremental cost’ of providing the service.18 For some services, the ACCC adopted a ‘retail minus retail costs’ approach.19

In 2010, the ACCC proposed moving to a ‘building block’ model of pricing, which would set prices based on a regulated asset base (which is, in turn, based on a fixed initial valuation of Telstra’s fixed-line network, subsequently periodically adjusted based on depreciation, capital expenditure and certain other factors). While the ACCC’s inquiry in 2010 was suspended pending the passage of regulatory reforms to part XIC of the CCA, the new pricing model has since been implemented under the ACCC’s first ‘final access determinations’ (FADs) for fixed-line services made on 20 July 2011, and under the new FADs for fixed-line services made on 9 October 2015.20 In contrast, the ACCC in 2011 and 2012 determined that a domestic benchmarking model was the most appropriate pricing model for domestic transmission and local bitstream access services.21 This approach is likely to continue for the 2016 domestic transmission FAD.22

The rationale for setting upfront terms of access

The shift to upfront term-setting by the regulator and adoption of a building block pricing model reflect an industry-wide desire for telecommunications services to be regulated in a manner more consistent with the regulation of access to utilities networks. In particular, the regulatory regimes created under the Australian National Electricity Law23 and National Gas Law24 provided models that were frequently referred to in public consultations.25

However, there remain significant differences between the legislative frameworks underpinning the electricity and gas sectors’ regulatory regimes on the one hand and the scheme now applying to telecommunications under part XIC of the CCA on the other. The electricity and gas regimes are characterised by intricate prescription of detail in the legislation, setting out the process for periodically determining pricing (and other terms of access). In contrast, the powers now given to the ACCC under part XIC, particularly the ‘access determination’ and ‘binding rules of conduct’ powers, are granted in broad terms that make the ACCC’s decisions highly discretionary.

The regulatory model to be adopted is ultimately guided only by the requirement that it furthers the very broadly stated purposes of part XIC as a whole; namely, the promotion of the long-term interests of end-users of telecommunications services.26

It is clear that the marked differences in the structure and process of the telecommunications access regime, as compared to the energy regimes, are connected with the vertical integration of the telecommunications incumbent.27 However, irrespective of the merits of competition concerns stemming from Telstra’s vertical integration, it may be questioned whether, in light of the NBN (which is intended to create structural separation in the sector) and Telstra’s decision to structurally separate, the new regime could have been designed so as to more effectively reduce the perceived regulatory risks associated with the telecommunications sector.

The position of Telstra under the CCA

While capable of applying to any of the major mobile carriers (Telstra, Optus and Vodafone Hutchison Australia), parts XIB and XIC have the greatest impact on Telstra as service provider in respect of its fixed-line operations. The ACCC has previously issued a number of part A competition notices to Telstra in relation to fixed-line services, including broadband pricing.

Telstra remains the main provider of fixed broadband services, including digital subscriber line (DSL) and hybrid fibre coaxial (HFC) services. However, the ACCC has since noted increased competition in this sector. In particular, the ACCC considers that regulation of wholesale markets has continued to underpin competition in retail markets, particularly in facilitating some growth in market share from smaller providers in both fixed voice and broadband services.28

In 2010, Telstra incurred its first ever penalty for breach of its access obligations. In Australian Competition and Consumer Commission v Telstra Corporation Ltd (2010) FCA 790, the Federal Court of Australia imposed penalties totalling A$18.55 million on Telstra in relation to incorrect refusals to allow carriers access to Telstra exchanges, contrary to its facilities access obligations.29 Telstra admitted that it had engaged in this conduct. The court imposed the penalty despite finding that Telstra’s conduct was not deliberately anticompetitive and that it was not directed by senior management or done for any reason relating to maximising Telstra’s revenue or profit.30

The National Broadband Network (NBN)

In April 2009, the Australian government announced its intention to fund, construct and operate, via a government-owned company (nbnTM, previously NBN Co), an NBN. Under Telstra’s proposal for structural separation (described below), the NBN will progressively replace Telstra’s copper customer access network. The proposal was for the NBN to use fibre-to-the-premises (FTTP) infrastructure to serve 93 per cent of the Australian population, with the remainder to be served by wireless and satellite facilities. Following the election of the coalition government in 2013, the model has shifted to using an optimised multi-technology mix (OMTM) for the roll-out of the NBN, which involves using a mix of FTTP, fibre-to-the-node (FTTN), fibre-to-the-basement (FTTB) and HFC, together with satellite and fixed-wireless, to provide NBN services. The roll-out of the NBN is currently underway and the most recent target completion date is 2020.

nbnTM is intended to be a wholesale-only operator, providing retail service providers (and certain other entities) with the opportunity to access its network on regulated terms.31 The legislation governing nbnTM also provides a framework for the government to require functional separation or divestiture of assets of nbnTM in the future,32 sets out a regime to facilitate nbnTM offering uniform national pricing,33 and imposes access, transparency and non-discrimination obligations on the supply of wholesale services by nbnTM.34

All nbnTM services will be ‘declared services’ and subject to supply and non-discrimination requirements (and the ACCC has the power to make NBN-specific access determinations).35 nbnTM has published a standard form of agreement for the provision of NBN services, the Wholesale Broadband Agreement, that is complemented by a special access undertaking accepted by the ACCC on 13 December 2013.36 This undertaking forms a key part of the regulatory framework that governs the price and other terms upon which nbnTM will supply its services for over 20 years.

In 2010, preparation for the roll-out and future operation of the NBN involved nbnTM and the Australian government negotiating complex commercial agreements with Telstra for the decommissioning of Telstra’s legacy copper network and the use of Telstra’s passive network infrastructure for the NBN. On 14 December 2014, Telstra, nbnTM, Optus and the Australian government announced that they had entered into a series of revised commercial agreements under which, rather than Telstra and Optus decommissioning legacy assets, nbnTM would take ownership of both Telstra’s and Optus’ HFC networks, as well as ownership of parts of Telstra’s copper network to permit nbnTM to roll-out an OMTM NBN. These agreements were authorised under the Telecommunications Act 1997 so that they would not breach competition laws, despite containing commitments by Telstra not to compete with the NBN.

The development of these agreements involved a number of ancillary regulatory reforms, including an overhaul of the USO delivery model. Under the previous model, Telstra was obliged to provide reasonable access to basic telephone services on an equitable basis throughout Australia. Following the passage of the Telecommunications Universal Service Management Agency Act 2012, the communications minister is now empowered to relieve Telstra of its USO regulatory obligations, and the Department of Communication and the Arts (the Department) has taken over primary responsibility for delivery of the USO (this role was initially granted to a statutory agency, the Telecommunications Universal Service Management Agency, which has since been abolished and its functions transferred to the Department). The Department will deliver the USO via entry into contractual arrangements with carriers to deliver USO services, including a 20-year contract with Telstra that commenced in July 2012. A triennial Australian government regional telecommunications review by an independent committee has recently recommended that the government review the USO and current consumer safeguards.37

A number of other NBN-related regulatory reforms have come into effect since 2010. They include new obligations for property developers to install fibre optic cables in certain new property developments, a regime that is intended to ensure new developments are ‘fibre ready’ and to promote faster deployment of NBN services. Carriers who install, upgrade or extend their fixed-line networks to provide ‘superfast’ carriage services (ie, services with speeds of over 25Mb/s) wholly or predominantly to residential and small business customers are also now obliged (like nbnTM) to do so only on a wholesale-only, open-access basis.38

Since the coalition government came into office, the minister for communications has commissioned two reports into the NBN.

The first report was the Strategic Review, which analysed the operations of nbnTM and considered a number of different options for the future roll-out of the NBN. The final report of the Strategic Review was released on 12 December 2013 and contained a highly critical account of the operation of nbnTM and a recommendation that the government pursue an OMTM roll-out of the NBN going forward.39

The second report was the independent NBN Cost-Benefit Analysis and Review of Regulation. The first part of the report, on the operation of the telecommunications access regime, was released on 16 July 2014 and recommended only minor changes, including making nbnTM’s non-discrimination obligations more flexible, for the ACCC to provide reasons as to why the benefits outweigh the costs when declaring or regulating a service and to increase the availability of merits review of ACCC decisions with an ‘enduring impact’ such as access determinations.40

The second part of the report, the cost-benefit analysis, was released on 27 August 2014. It confirmed the economic advantages to Australia of an NBN and supported the Australian government’s preference for an OMTM NBN over a pure FTTP NBN.41

The third part of the report, market and regulatory, was released on 1 October 2014 and made a large number of recommendations to improve competition in relation to the NBN.42 The most significant recommendation was to disaggregate nbnTM, along technology lines, into a number of competing entities. This would, for example, allow FTTN services to be provided in competition with HFC services in certain areas. Following the release of the report, the minister for communications has stated that the government does not intend to disaggregate nbnTM, at least until the roll-out is complete.

The market and regulatory report also recommended changes to parts 7 and 8 of the Telecommunications Act 1997 to loosen the restrictions on competition with nbnTM. It recommended competing providers be allowed to be vertically integrated, but require them to either provide an undertaking to the ACCC (that would likely include the terms and conditions upon which they provide wholesale access) or be forced to structurally separate. The report recommended opening up fibre in new estates to competition, with nbnTM to remain the infrastructure provider of last resort for large new developments, but that nbnTM should charge a commercial rate to provide this infrastructure. The report generally approved of the ‘price cap’ approach to wholesale pricing of NBN services, but recommended that this eventually transition to a cost-reflective pricing model with appropriate subsidies where needed. Echoing the recommendation in the report of the Australian government’s Competition Policy Review,43 the report also recommended that a specialist ‘networks regulator’ be created to regulate networks industries rather than the ACCC.

On 11 December 2014, the government released its response to the NBN Cost-Benefit Analysis and Review of Regulation report.44 The government has proposed to adopt a number of the recommendations in the report over the next few years and stated that the disaggregation of nbnTM was not for the near term but would be considered in the future. The government has also released a policy in line with the report’s recommendation on fibre in new estates.45

Separation of Telstra

Alongside the NBN, a central plank of the government’s telecommunications reform agenda has been to encourage the structural or functional separation of Telstra. Amendments to the Telecommunications Act 1997 in 2010 established a novel regulatory scheme that allowed Telstra to, in effect, choose whether it would structurally separate or else submit to potentially onerous restrictions on its existing and future business activities (including mandatory functional separation and being denied access to certain new spectrum). Consequently, in connection with the commercial agreements it struck with nbnTM and the Australian government, Telstra elected to structurally separate.

The Telecommunications Act 1997 was amended in 2010 to introduce provisions permitting Telstra to give to the ACCC a structural separation undertaking (SSU). This is an undertaking that Telstra will, after a specified day, ‘not supply fixed-line carriage services to retail customers in Australia using a telecommunications network over which Telstra is in a position to exercise control’.46 Essentially, it is a means for Telstra to voluntarily divest its copper customer access network, under ACCC oversight (and subject to ACCC enforcement).

In February 2012, the ACCC accepted Telstra’s submitted SSU, under which Telstra commits to structurally separate by 2018.47 The structural separation will be effected by the gradual sale by Telstra of its copper and HFC assets to nbnTM (and progressively disconnecting parts of the copper network not being used by nbnTM) over the course of the roll-out of the NBN. The SSU includes assurances from Telstra intended to ensure that while Telstra continues to provide regulated fixed-line wholesale services, it does so on an equivalent and transparent basis; it also includes extensive obligations to report to the ACCC on Telstra’s compliance with the SSU. The ACCC is responsible for monitoring and enforcing this compliance and, on application by the ACCC, the Federal Court of Australia has power to make orders against Telstra to secure Telstra’s compliance with the SSU. This includes orders requiring Telstra to compensate wholesale customers if they suffer loss as a result of Telstra’s breach of the SSU, and pecuniary penalties of up to A$10 million per contravention.48

The Telecommunications Act 1997 also includes provisions requiring Telstra voluntarily to divest its HFC cable network and its interest in the Foxtel pay-television network, failing which Telstra could be prevented from participating in certain upcoming spectrum auctions.49 However, these divestiture requirements were waived by the then Labor communications minister on the basis that Telstra’s SSU was sufficient to address competition concerns.50

From an international point of view, the legislative regime for structural separation is unprecedented. For instance, the break-up of AT&T in the United States occurred pursuant to a judicial determination (and with judicial oversight) following an antitrust suit by the federal government.51 By contrast, in Telstra’s case, there has never been any finding, or even any substantiated allegation, of anticompetitive conduct of a kind for which the appropriate solution would be forcing Telstra to divest some or all of its network. Rather, the legislative regime was designed in pursuance of a policy, the apparent assumption of which was that the ongoing vertical integration of the incumbent produced a less efficient and less competitive market than would otherwise be the case. For this reason, Telstra’s separation could be described not as remedial or punitive, but as policy-driven and forward-looking.

Notes

  1. Telecommunications Act 1997 (Cth), schedule 1, parts 3–5. This regime is discussed further below, together with part XIC of the CCA.
  2. Telecommunications Act 1997 (Cth), schedule 1, part 8.
  3. Or a network unit in relation to which a nominated carrier declaration is in force.
  4. See the Competition and Consumer Act 2010 (Cth), section 152AB. The long-term interests of end users raise a number of subsidiary considerations, including the promotion of competition, encouraging the economically efficient use of and investment in infrastructure by which telecommunications services are or may be supplied and achieving any-to-any connectivity.
  5. Competition and Consumer Act 2010 (Cth), section 152CJA.
  6. See ACCC, Superfast Broadband Access Service declaration inquiry draft decision (November 2015), available at https://www.accc.gov.au/system/files/SBAS%20-%20ACCC%20draft%20decision%20-%20public%20version%20-%20November%202015.pdf (accessed 6 January 2016).
  7. See, for example, the Competition and Consumer Act 2010 (Cth), sections 152BC and 152BCA. In contrast, under the facilities access regime under the Telecommunications Act 1997 (Cth), the ACCC continues to have power to arbitrate disputes.
  8. Competition and Consumer Act 2010 (Cth), section 152BC.
  9. Competition and Consumer Act 2010 (Cth), section 152BCC.
  10. Competition and Consumer Act 2010 (Cth), section 152BD.
  11. Competition and Consumer Act 2010 (Cth), section 152CBA.
  12. There is also a similar right to obtain access to network information: Telecommunications Act 1997 (Cth), schedule 1, part 4, clause 21.
  13. There are other limitations, including a requirement for reasonable notice, as well as protection for other parties’ contractual rights that were in existence before the request was made, and for access to towers and eligible underground facilities to be technically feasible. See, for example, the Telecommunications Act 1997 (Cth), schedule 1, clauses 17, 33, 34, 35.
  14. The parties may agree on an arbitrator, but failing agreement, the arbitrator is to be the ACCC. In relation to questions of exemption from access for reasons of technical feasibility, the ACCC may also consult the Australian Communications and Media Authority (ACMA), see Telecommunications Act 1997 (Cth) schedule 1, clauses 33(4A), 34(4A), 35(4A) and 36.
  15. ACCC, Public Inquiry to make a Final Access Determination for the Domestic Transmission Capacity Service, Draft Decision (4 September 2015), pg 44 available at http://www.accc.gov.au/system/files/DTCS%20Draft%20FAD%20.pdf (accessed 7 January 2016).
  16. ACCC, Public Inquiry to make a Final Access Determination for the Domestic Transmission Capacity Service, Draft Decision (4 September 2015), pg 46 available at http://www.accc.gov.au/system/files/DTCS%20Draft%20FAD%20.pdf (accessed 7 January 2016).
  17. Telecommunications Legislation Amendment (Access Regime and NBN Companies) Bill 2015, schedule 1, part 1.
  18. See, for example, ACCC, Access Pricing Principles – Telecommunications (July 1997), available at https://www.accc.gov.au/publications/access-pricing-principles-telecommunications-a-guide (accessed 2 January 2016).
  19. Specifically the Local Carriage Service (LCS) and Wholesale Line Rental (WLR) service: see ACCC, Pricing principles and indicative prices for LCS, WLR, PSTN OTA, ULLS, LSS 1 August 2009 to 31 December 2010 (December 2009), available at www.accc.gov.au/regulated-infrastructure/communications/fixed-line-services/fixed-line-wholesale-services-pricing-review-2009-2010/final-report (accessed 2 January 2016).
  20. See ACCC, Final Access Determinations Nos. 1 to 6 of 2011 for Fixed Line Services, available at www.accc.gov.au/regulated-infrastructure/communications/fixed-line-services/fixed-line-services-final-access-determination-fad-2011/final-report (accessed 2 January 2016) and ACCC, Final Access Determinations Nos. 2 to 8 of 2015 for Fixed Line Services, available at https://www.accc.gov.au/regulated-infrastructure/communications/fixed-line-services/fixed-line-services-fad-inquiry-2013/final-decision (accessed 2 January 2016).
  21. ACCC, Explanatory Statement to the domestic transmission capacity service final access determination, available at https://www.accc.gov.au/regulated-infrastructure/communications/transmission-services-facilities-access/domestic-transmission-capacity-service-access-determination-2011-12/final-access-decision (accessed 2 January 2016); and ACCC, Explanatory Statement to the local bitstream access service final access determination, available at www.accc.gov.au/regulated-infrastructure/communications/fixed-line-services/local-bitstream-access-service-lbas-final-access-determination-2012/final-determination (accessed 2 January 2016).
  22. See ACCC, Public Inquiry to make a Final Access Determination for the Domestic Transmission Capacity Service, Further consultation paper, available at https://www.accc.gov.au/system/files/DTCS%20FAD%20further%20consultation%20paper.pdf (accessed 2 January 2016).
  23. The National Electricity Law (NEL) is contained in a schedule to the National Electricity (South Australia) Act 1996 (SA). The National Electricity Rules are made under the NEL.
  24. The National Gas Law (NGL) is contained in a schedule to the National Gas (South Australia) Act 2008 (SA). The NGL is supplemented by the National Gas Rules.
  25. See, for example, Telstra, Submission to the National Broadband Network: Regulatory Reform for 21st Century Broadband Discussion Paper (2009), pp. 9-10; Competition Economists Group, Increasing regulatory certainty for telecommunications assets in Australia: A Report for Optus (June 2009); ACCC, Review of 1997 Guide to Telecommunications Access Pricing Principles for Fixed Line Services: Discussion Paper (December 2009), p. 29; Telstra, Response to the ACCC’s Discussion Paper (26 February 2010), p. 16; Frontier Economics, Access pricing principles for fixed line services: A Response to the ACCC’s Discussion Paper prepared for the CCC (February 2010).
  26. See the Competition and Consumer Act 2010 (Cth), section 152AB. Furthermore, the ‘self-regulation’ model adopted under the electricity and gas regimes, focused around the network owner and access provider making a ‘proposal’ for pricing to apply during each regulatory period, which is accepted, modified or rejected by the regulator (see National Electricity Rules, rule 6A.10.1; National Gas Rules, rule 46) has not been adopted under part XIC. Rather, the introduction of further restrictions on the access undertaking mechanism represents a marked consolidation of the regulator’s control over the terms and conditions of access.
  27. By contrast, electricity transmission and distribution network operators around Australia (whether publicly or privately owned) have generally been, and remain, structurally separated (or subject to strict ring-fencing) from electricity generators and retailers.
  28. ACCC, Telecommunications competitive safeguards for 2013-14 (5 March 2015), p. 19, available at https://www.accc.gov.au/publications/accc-telecommunications-report/accc-telecommunications-report-2013-14 (accessed 2 January 2016).
  29. Under schedule 1 to the Telecommunications Act 1997 and part XIC of the then Trade Practices Act 1974 (now CCA).
  30. Australian Competition and Consumer Commission v Telstra Corporation Ltd (2010) FCA 790, [248] – [249] (Middleton J).
  31. National Broadband Network Companies Act 2011 (Cth), section 9.
  32. National Broadband Network Companies Act 2011 (Cth), part 2, divisions 3 and 4.
  33. Competition and Consumer Act 2010 (Cth), section 151DA.
  34. Telecommunications Legislation Amendment (National Broadband Network Measures – Access Arrangements) Act 2011 (Cth).
  35. Competition and Consumer Act 2010 (Cth), sections 152AL(1), (8A), (8D), (8E), 152BC(4A)-(4C) and 152CJA(1).
  36. nbnTM’s Wholesale Broadband Agreement is available at www.nbnco.com.au/sell-nbn-services/supply-agreements/wba2.html (accessed 2 January 2015). nbnTM’s special access undertaking, and details of the ACCC’s assessment process for the special access undertaking, are available at https://www.accc.gov.au/regulated-infrastructure/communications/national-broadband-network/nbn-co-special-access-undertaking-2013 (accessed 2 January 2015).
  37. Australian Government, Regional Telecommunications Review (23 August 2015), available at www.rtirc.gov.au/wp-content/uploads/sites/2/2015/10/RTIRC-Independent-Committee-Review-2015-FINAL-Low-res-version-for-website.pdf (accessed 6 January 2015).
  38. Telecommunications Legislation Amendment (National Broadband Network – Access Arrangements) Act 2011.
  39. The NBN Strategic Review report is available at www.nbnco.com.au/content/dam/nbnco/documents/NBN-Co-Strategic-Review-Report.pdf (accessed 2 January 2015).
  40. The Statutory Review under section 152EOA of the Competition and Consumer Act 2010 is available at https://www.communications.gov.au/sites/g/files/net301/f/3%20_Section_152EOA_Report.pdf (accessed 2 January 2015).
  41. The Independent Cost-Benefit Analysis of the NBN report is available at https://www.communications.gov.au/publications/independent-cost-benefit-analysis-broadband (accessed 2 January 2015).
  42. The NBN Market and Regulation Report is available at:
  43. https://www.communications.gov.au/publications/nbn-market-and-regulatory-report (accessed 2 January 2015).
  44. The Australian government’s Competition Policy Review final report is available at: http://competitionpolicyreview.gov.au/files/2015/03/Competition-policy-review-report_online.pdf (accessed 2 January 2015).
  45. The Australian government’s response to the NBN Cost-Benefit Analysis and Review of Regulation report is available at
  46. https://www.communications.gov.au/departmental-news/government-responds-vertigan-reviews (accessed 2 January 2015).
  47. The Australian government’s Telecommunications Infrastructure in New Developments Policy is available at https://www.communications.gov.au/documents/Telecommunications-infrastructure-in-new-developments-policy-27-May-2015 (accessed 2 January 2015).
  48. Telecommunications Act 1997 (Cth), section 577A(1)(a).
  49. Telstra’s Structural Separation Undertaking is available at
  50. https://www.accc.gov.au/regulated-infrastructure/communications/industry-reform/telstras-structural-separation-undertaking (accessed 2 January 2015)
  51. Telecommunications Act 1997 (Cth), section 577G.
  52. Telecommunications Act 1997 (Cth), sections 577C and 577E.
  53. Telecommunications Act 1997 (Cth), sections 577J(3), (4), (5), (6).
  54. United States v AT&T, 552, federal supplement 131 (DDC 1982).

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