CORRS CHAMBERS WESTGARTH

L A W Y E R S

Telecommunications

Telecommunications: The Facilities Access Regimes and the Roles of the ACCC and the ACA Helen Wills

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Telecommunications Overview

Telecommunications Act 1997

Access Regimes for:

supplementary facilities

transmission towers, tower sites and underground facilities

Roles of the ACCC and the ACA

Latest Developments

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Telecommunications Telecommunications Act

1997

Part of substantial legislative package

Established a new regulatory framework

Opened the market to competition in telecommunications infrastructure and services

Established a number of regimes to enable access to existing and future infrastructure and services

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Telecommunications Basic Carrier Obligations

Imposed by the Telecommunications Act on licensed carriers

Consumer and community obligations

Obligations to promote competition in telecommunications

Requirement to comply with the Act including the Schedule 1 Standard Carrier Licence Conditions

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Telecommunications

Access to Supplementary Facilities

Standard Carrier Licence Condition

Obligation on a carrier to provide other carriers with access to supplementary facilities it owns or operates

broad definition of “supplementary facility”

“telecommunications network”

“own or operate” requirement

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Telecommunications

Access to Supplementary Facilities

Requirements for Valid Access Request

sole purpose to enable access seeker to provide competitive facilities and services

request is reasonable

access seeker gives reasonable notice

facilities, other than customer cabling or customer equipment, installed before 30 June 1991 or obtained after then other than by means of commercial negotiation

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Telecommunications Access to Supplementary

Facilities

Reasonable Request

long-term interests of end-users

Part XIC of the Trade Practices Act and access objectives

competition

connectivity

use of / investment in infrastructure ACCC understanding and role

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Telecommunications Access to Supplementary

Facilities

Terms and Conditions of Access

carriers expected to agree

ACCC arbitration

Enforcement:

ACCC responsible for regime

breach of licence condition

ACCC action

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Telecommunications Access to Towers, Tower Sites

and Underground Facilities

Standard Carrier Licence Condition

Obligation on a carrier to provide other carriers with access to towers, tower sites and underground facilities it owns or operates

“telecommunications transmission tower”

“eligible underground facility”

“giving access” to a tower

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Telecommunications Access to Towers, Tower Sites

and Underground Facilities

Requirements for Valid Access Request

Tower or tower site - sole purpose to enable access seeker to install a facility for use in the supply of a radio-communications carriage service

Underground facility - sole purpose to enable access seeker to install a line to supply a carriage service

access seeker gives reasonable notice

technically feasible

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Telecommunications Access to Towers, Tower Sites

and Underground Facilities

Reasonable Notice

individual circumstances

sufficient time to enable carrier to make arrangements to facilitate access

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Telecommunications Access to Towers, Tower Sites

and Underground Facilities

Technical Feasibility

ACA certificate application process

matters relevant to technical feasibility:

technical or engineering difficulties

health and safety issues

practical means of avoidance

other relevant matters

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Telecommunications Access to Towers, Tower Sites

and Underground Facilities

Terms and Conditions of Access

carriers expected to agree

ACCC arbitration

ACCC Facilities Access Code:

ACCC rationale for Code

administrative and operational procedures

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Telecommunications Access to Towers, Tower Sites

and Underground Facilities

Sharing Towers, Tower Sites and Underground Facilities

carriers to co-operate to share facilities when planning future services

ACA thinks carriers should make reasonable attempt to notify other carriers that may wish to share facilities before establishing own

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Telecommunications Access to Towers, Tower Sites

and Underground Facilities

Enforcement

ACA responsible for regime

breach of licence condition

ACA action

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Telecommunications Access Strategies

Likely Strategies to Delay Access

relying on exemptions (eg: not technically feasible)

onerous price and non-price terms in proposed access agreements

claiming expected future requirements

delaying negotiations and opposing arbitration

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Telecommunications Recent Developments

Review of towers, tower sites and underground facilities access regime

DCITA Consultation Paper

Concerns about regime:

pre-emption of existing actual or planned rights

hoarding of access rights

Carrier submissions under consideration