Part XIC of the CCA supports the development of a competitive telecommunications industry by allowing services to be ‘declared’, a process that determines which services are regulated by the ACCC. Once declared, a service must be supplied, on request, to other providers for use in their own services. This arrangement guarantees access to telecommunications services in the interest of competitive services to end-users.
In regulating the telecommunications sector, the ACCC aims to establish reasonable access terms that:
- • balance the interests of infrastructure owners, users and the broader public
- • achieve any-to-any connectivity
- • encourage efficient investment in, and use of, infrastructure promote competition for the long-term benefit of consumers and businesses.
Introduction of a new wholesale access network
On 13 December 2013, the ACCC accepted the varied special access undertaking (SAU) lodged by the National Broadband Network Co (NBN) on 19 November 2013. The NBN is an entity owned by the Australian government and tasked with developing a national, open-access broadband network. The SAU, which will operate until June 2040, includes terms and conditions for access to the national network and sets the broad regulatory framework for effective engagement between NBN Co and access seekers to negotiate commercial agreements.
Telstra’s (the current monopoly network provider) Structural Separation Undertaking (SSU) also includes commitments to safeguard competition until the NBN is built and Telstra has migrated its fixed line services to the new network. Of particular significance is Telstra’s commitment to providing equivalent service levels to wholesale customers and its own retail businesses.
Part XIB applies certain general anti-competitive conduct provisions of part IV of the CCA to telecommunications carriers and carriage service providers (CSPs) via the ‘competition rule’. 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.