Australia: Competition and telecommunications infrastructure

Last Updated: 20 July 2017
Article by Angela Flannery

Most Read Contributor in Australia, July 2017

On 22 June 2017, the Australian Government introduced two important bills in the Australian Parliament, the Telecommunications (Regional Broadband Scheme) Charge Bill 2017 (RBS Bill) and the Telecommunications Legislation Amendment (Competition and Consumer) Bill 2017 (CC Bill). The Bills, when considered together, are intended to promote competition in the telecommunications infrastructure market and protect the interests of consumers.

These Bills implement the most significant components of the Government's response to the independent cost-benefit analysis and review of regulatory arrangements for the National Broadband Network (NBN) undertaken by a panel chaired by Dr Vertigan in 2014. The introduction of the Bills in Parliament follows on from consultation on earlier exposure drafts of the Bills undertaken by the Department of Communications and the Arts between December 2016 and February 2017.

What do the Bills do?

RBS Bill

The Government estimates that the fixed wireless and satellite networks forming part of the NBN will lose approximately $9.8 billion over 30 years. The RBS Bill would introduce a levy, initially set at approximately $7 per fixed line per month, imposed on NBN Co and other carriers providing high speed, fixed line broadband services to subsidise the operation of these networks. The levy scheme is proposed to commence from 1 July 2018 and would create a sustainable funding source for NBN Co's loss making services. The scheme is intended to provide for transparency of the funding of these services and ensure that high speed networks that are comparable to the NBN also fund these losses. The subsidy arrangements would replace the current arrangements, under which NBN Co cross-subsidises these loss making services solely from its fixed line services.

Key terms include:

  • During the first five years of the scheme's operation the first 25,000 residential and small business premises for each relevant carrier would be exempted from the levy.
  • The levy would be reviewed by the Australian Competition and Consumer Commission (ACCC) every 5 years to ensure that it reflects the size of the fixed-line broadband market and the reasonable costs of NBN's fixed wireless and satellite networks. The amount of the levy is however subject to a cap of $10 per line per month (as adjusted for inflation).
  • The scheme itself would be subject to review within 4 years of its commencement to ensure that the funding base remains appropriate.
CC Bill

The CC Bill has two main functions, to impose a statutory "infrastructure provider of last resort" obligation on NBN Co and to change the rules applying to the operation of high speed networks (other than the NBN and Telstra's networks, which are subject to separate regulation).

The infrastructure provider provisions of the CC Bill would impose an obligation on NBN Co to connect premises to the NBN and provide wholesale services to retail service providers. While the NBN is still in the process of being rolled out, the obligation would apply only in the areas where the NBN is ready for service. On completion of the NBN rollout, the obligation would apply for all Australian premises, subject to different providers being designated in a specific area or areas (such as where a different provider has supplied the telecommunications infrastructure in a residential property development).

The CC Bill would amend some of the rules that apply to owners of high speed networks built after 1 January 2011 and that compete with the NBN, as set out in Parts 7 and 8 of the Telecommunications Act 1997 (Cth). Part 7, which requires operators of those networks to supply Layer 2 bitstream services to access seekers, will be repealed entirely. The main changes to Part 8, which requires networks to be "wholesale only" (or structurally separated), are:

  • If ACCC approval is obtained, impacted networks would only be required to be functionally, rather than structurally, separated. This means that separate legal ownership of wholesale and retail businesses is not required and instead operational separation of those businesses may be implemented.
  • The ACCC has the power to exempt a class of smaller networks from the separation regime.
  • Regulated wholesale services would be required to be provided on a non-discriminatory basis to any retail service provider that requests those services.
  • The rules would not apply to high speed networks that only provide services for small business.

These changes to Part 8 are generally intended to apply from 1 July 2018.

Industry reaction and next steps

Telecommunications carriers do not uniformly support the Bills. Criticism has been levelled at the levy arrangements by, amongst others, Telstra, Vocus and TPG. One of the concerns commonly expressed is that, by targeting business services that do not compete with the NBN, the reform package does not reflect the original intent of the levy. As recommended by the Vertigan review, the levy was intended to operate to create a level playing field by targeting only competitors to the NBN (who would otherwise not be required to contribute to subsidising the costs of the loss making NBN fixed wireless and satellite services).

Following introduction, the Bills were referred to the Senate Environment and Communications Legislation Committee, which is due to report on 8 August 2017. Whether that Committee will be sympathetic to the concerns of industry and recommend amendments to the Bills remains to be seen.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.