Background to the Facilities Access Code
Part 5 of Schedule 1 of the Telecommunications Act 1997 (Cth) (Telco Act) contains a statutory regime for access to the following types of telecommunications facilities, collectively referred to as eligible facilities:
- transmission towers, including not only towers but poles, masts and similar structures used to supply a carriage service via radiocommunications
- transmission tower sites (being both land and structures on such land)
- eligible underground facilities (largely ducts, capable of holding telecommunications cables).
The Australian Competition and Consumer Commission (ACCC) has, as permitted in accordance with Part 5 of Schedule 1 of the Telco Act, implemented a Facilities Access Code, which first took effect in 1999. The Facilities Access Code sets out both operational and administrative procedures that apply to this access regime. The aim of the Code is to support colocation of facilities, promoting investment efficiency as telecommunications providers are not required to unnecessarily duplicate facilities.
The Code contains mandatory access provisions as well as certain other administrative provisions that apply only if the relevant parties do not negotiate a separate arrangement. Every carrier who is licensed under the Telco Act is required, as a condition of its carrier licence, to comply with the Facilities Access Code.
What is changing and why
The Facilities Access Code was last reviewed in 2013. The many changes in the telecommunications sector since then, as well as anticipated changes that will occur in future (including the introduction of 5G technologies), have necessitated this review of the Code provisions. The ACCC paper, Measures to address regional mobile issues, which was released in October 2017i following the ACCC's inquiry into the declaration of a domestic mobile roaming service, suggested that amendments to the Facilities Access Code may assist in reducing the costs of deploying and improving mobile networks, particularly in regional areas. The ACCC also committed to reviewing the Facilities Access Code in its final report in the Communications Sector Market Study, released in early 2018ii.
The ACCC released a Discussion Paper in August 2018. The areas of focus in the Discussion Paper are:
- Co-build infrastructure arrangements for new eligible
At the current time, the Facilities Access Code does not oblige carriers to consult with other carriers on co-location in developing plans for new eligible facilities, though carriers have a discretion to do so. The ACCC is seeking views primarily on whether carriers should be obliged to undertake a consultation process as part of the development of new eligible facilities and how that would be implemented, for example, would this apply only to mobile towers or all eligible facilities, would carriers be required to publicly seek submissions on proposed new developments and the like.
- Co-location and infrastructure sharing arrangements on
established eligible facilitiesIn this area, the ACCC has
asked for input on whether the Facilities Access Code should
include a "use it or lose it" obligation, that is, an
obligation that if access is agreed to be provided on a relevant
facility then if it is not used within a particular time the use
right is lost. Views are also sought on whether this should only
apply to mobile towers or to all eligible facilities, whether it
should be a mandatory provision and how in a practical sense this
regime would operate.
The ACCC also proposes to consider whether changes could be made to the Code to facilitate access to eligible facilities that are owned or operated by NBN Co.
- Impact of "emerging issues" regarding facilities
This third area of investigation might also be titled "Other things the ACCC has been thinking about". The ACCC is asking for input on the following questions:
- The ACCC is of the view that "transmission tower" for the purposes of Part 5 of Schedule 1 of the Telco Act would include the structural infrastructure for a distributed antenna system (DAS), that is, small antennas that serve as repeaters to improve coverage in areas where it would otherwise be poor. The ACCC is seeking views on whether the Code should be amended to facilitate the deployment of DASs.
- Although stakeholders have not indicated in discussions with the ACCC, for example in the context of the ACCC's recent inquiry into a domestic mobile roaming service declaration, that there are problems with agreeing access arrangements for underground facilities (ducts), the ACCC has sought views on whether such problems exist – particularly with ducts providing access at NBN Co's points of interconnect (POIs) to NBN Co's fibre access service and to data centres – and what changes might be made to the Facilities Access Code to overcome those problems.
- The ACCC has asked for views on whether changes are needed to the Code to facilitate 5G infrastructure roll out. Concerns in this area arise given this is a new technology and that, unlike earlier mobile infrastructure rollout, 5G requires small cell infrastructure to support spectrum use. This will be a difficult area in which to draw conclusions. Given the timing of the Discussion Paper, it is not yet known whether there will be problems with infrastructure sharing for 5G and the ACCC would be wary of imposing regulation that may lead to market distortions.
The ACCC has requested submissions from interested parties responding to the questions raised in its Discussion Paper by 30 September 2018. The next steps will then be:
- The ACCC will issue a draft report setting out its findings and proposed changes to the Facilities Access Code
- There will be a period for public consultation on the draft report
- Following the ACCC's consideration of the submissions on the draft report, the ACCC will prepare a final report and the Facilities Access Code will be amended.
Licensed telecommunications carriers should consider the Discussion Paper carefully and provide input into the ACCC's processes to ensure that their views on the proposed changes are heard and taken into consideration by the ACCC.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.