On 5 December 2011, NBN Co published its Special Access
Undertaking (SAU) and lodged it with the Australian Competition and
Consumer Commission (ACCC) for assessment and approval.
The SAU provides a framework under which access seekers are able
to gain access to NBN Co's fibre, wireless and satellite
networks (NBN Services) for the next 30 years. The SAU interacts
with the NBN Co's Wholesale Broadband Agreement (WBA), which is
the NBN Co's standard form access agreement published on
The WBA is not subject to regulatory oversight or approval by
the ACCC. It has already been signed by more than 25 telcos
including Telstra, Optus, iiNet and Internode. Telcos that have
already signed the WBA before approval of the SAU will be able to
avail themselves of any benefits they would have received under the
SAU through a contractual alignment process provided under the
Under the NBN Co's proposed access regime, the SAU will
provide an overarching framework of both price and non-price terms.
But the SAU does not cover all price and non-price terms of access
to NBN Services and so is unable to be entered into as a standalone
access agreement. Access seekers must first enter into a WBA with
NBN Co, which will contain the negotiated commercial terms and run
for a much shorter term.
The terms of the WBA and the absence of regulatory oversight
over those terms lead to widespread criticism of the WBA upon its
On 20 December 2011, the ACCC released its first consultation
paper on the SAU setting out the legislative and procedural
framework for the assessment of the SAU and calling for
submissions. The submissions received from telco industry
stakeholders in response to the first consultation paper expressed
a number of concerns with the SAU.
The major concerns of stakeholders stem from the practical
effect of the interaction between the SAU, the WBA and Part XIC of
the Competition and Consumer Act 2010 (Cth) on the NBN
Co's proposed access framework. In summary, the major concerns
the ACCC has no real visibility over the commercial terms
between NBN Co and its wholesale customers under the WBA
to the extent that the WBA deals with a matter, the terms of
the WBA prevail over the SAU in relation to that matter, which
prevails over ACCC binding rules of conduct, which prevail over
ACCC access determinations. Some commentators have suggested that
this means if the ACCC does attempt to intervene to regulate terms,
then those terms will be overridden by the WBA
the SAU can only prevail over the WBA if the WBA allows it
there is limited scope for ACCC involvement in the negotiation
of the terms of the WBA between NBN Co and access seekers. Under
the SAU there are limited circumstances in which a decision of the
ACCC may lead to variation of the terms of the WBA. These
provisions allowing recourse to the ACCC only apply:
before an access agreement is entered into between NBN Co and
an access seeker
in respect of non-price terms to the extent they are not
covered by the SAU
in respect of price-related terms that had not been announced
by NBN Co prior to the commencement of the SAU.
If the ACCC accepts the proposed SAU, it will mean all access
seekers may not be able to access NBN Services on the same terms.
Terms of access will need to be negotiated with NBN Co on a case by
case basis and in most cases, the ACCC will not have the power to
accept or reject terms of access.
Given NBN Co's statutory monopoly, the concern is that this
arrangement is likely to lead to difficult, protracted and
expensive access negotiations with NBN Co.
The ACCC consultation and review process
On 10 February 2012, the ACCC released a supplementary
consultation paper highlighting what the ACCC considers to be the
key issues following the submissions received in response to the
first consultation paper and requesting further detail from
Submissions to the ACCC close at 5pm on 30 March 2012. The ACCC
has indicated an intention to hold an industry forum to discuss the
SAU at some point in April.
The ACCC is required to make a decision on whether or not to
accept the SAU within six months, but it has the power to extend
that period if it is unable to make a decision within the required
period. If the ACCC does not make a decision or extend the
timeframe for a decision then it is deemed to have accepted the
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