On 18 December 2012, NBN Co Ltd and NBN Tasmania Ltd withdrew the Special Access Undertaking (SAU) it lodged on 28 September 2012 and re-lodged a revised SAU with the ACCC.
The 18 December 2012 SAU includes amended non-price terms which NBN Co states have arisen out of the now concluded Contract Development Process. It also contains some other amendments which NBN Co states “clarify the operation of the SAU”.
The ACCC is now considering the revised SAU under the criteria set out in section 152CBD of the Competition and Consumer Act 2010 . If accepted, the SAU will form part of the regulatory framework for access to the National Broadband Network.
The SAU is based on a proposal submitted to the ACCC on 20 June 2012. The ACCC held a multilateral industry forum to discuss this proposal in July 2012. The proposal is available here:
The following confidential document is also provided by NBN Co in support of the 18 December 2012 SAU:
Report by Analysys Mason on the efficiency and prudency of NBN Co's fibre, wireless and satellite network design, 26 September 2012 (marked ‘Confidential version’)
On 26 October 2012, the ACCC wrote to NBN Co requesting clarification about particular matters in the 28 September 2012 SAU. NBN Co responded to this request on 1 November 2012:
Interested parties should have regard to these materials in formulating their submissions on the 18 December 2012 SAU.
Consultation on the SAU
Under section 152CBD of the Competition and Consumer Act 2010, the ACCC must not accept an SAU unless it has published the SAU, invited submissions and considered submissions received within the time limit specified by the ACCC when it published the SAU.
The ACCC published the 18 December 2012 SAU on 19 December 2012. The ACCC is now calling for submissions on the 18 December 2012 SAU.
On 12 November 2012, the ACCC released a consultation paper on the 28 September 2012 SAU. Interested parties should have regard to the issues and questions set out in that consultation paper in formulating their submissions on the 18 December 2012 SAU, noting that the 18 December 2012 SAU contains different terms and conditions relating to non-price matters, as well as other amendments which NBN Co states “clarify the operation of the SAU”.
The period for submissions to the consultation on the 18 December 2012 SAU closes at 5.00pm, 18 January 2013.
The consultation paper on NBN Co’s 28 September 2012 SAU is available here:
On 10 December 2012, the ACCC held a stakeholder forum to discuss the issues raised in the ACCC’s consultation paper on the 28 September 2012 SAU. The discussion at that forum is confidential to those that attended.
Confidentiality arrangements
The ACCC considers that all parties to the ACCC’s consultation process should be given an opportunity to consider, review and comment on confidential information provided to the ACCC in relation to the SAU. The ACCC encourages providers of confidential information to establish confidentiality arrangements that allow other parties to view their confidential information.
NBN Co has indicated that it will assess each request for access to its commercially confidential information on a case-by-case basis. Parties wishing to obtain the confidential versions of NBN Co’s materials should contact:
On 16 November 2012, the ACCC received a letter from Optus requesting that a confidentiality regime be established between NBN Co and interested parties to enable access to NBN Co’s underlying financial data and other modelling. The ACCC is currently considering this request. Parties wishing to obtain the confidential version of Optus' letter should contact:
Andrew Sheridan Head of Interconnect and Economic RegulationSingtel Optus Pty Ltd+61 2 8082 8437Andrew.Sheridan@optus.com.au
The ACCC must make a decision to accept or reject an SAU within six months of the receipt of the undertaking, subject to its ability to extend this period and periods which are discounted from the assessment timeframe (such as when the ACCC is consulting on the SAU, or NBN Co is responding to any Notice to Vary issued to it). If the ACCC does not make a decision within the statutory time period, it is deemed to have accepted the SAU.
Further information sought from NBN Co
On 29 January 2013, the ACCC sought further information from NBN Co to assist the ACCC in its assessment of the SAU. The information relates to NBN Co's forecasts of expenditure, revenues, prices and demand for each year of the SAU term.
