Federal Court confirms validity of ACCC pay TV declaration

The decision today by the Federal Court of Australia to uphold the validity of the Commission's pay TV service declaration has been welcomed by the Australian Competition and Consumer Commission.

"The ACCC was always very confident that its decision to regulate access to cable networks for Pay TV services would withstand scrutiny and is pleased that the Court has now upheld the validity of its decisions", ACCC Chairman, Professor Allan Fels, said today.

"This decision together with an earlier decision by Justice Tamberlin , which ruled there was no protected contractual right which could be claimed by Foxtel and Telstra, provides a greater level of certainty for those wishing to provide pay TV services on cable networks".

Foxtel had instituted proceedings in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 and Judiciary Act 1903 against the ACCC, seeking orders from the Court to set aside both the ACCC's 1997 and 1999 Pay TV declarations.

This decision means that, subject to capacity being available, Telstra must provide access to its hybrid fibre-coaxial (HFC) network to access seekers for the supply of Pay TV services. This will enable alternative content providers such as Television and Radio Broadcasting Services (TARBS) and Seven Cable (Seven), who have requested access to Telstra's cable network, to negotiate with Telstra on access, and failing agreement, on the basis of arbitration by the ACCC.

Background

Part XIC of the Trade Practices Act 1974 sets out a telecommunications access regime. If a carriage service is declared, a provider of that service must supply that service to an access seeker subject to certain exceptions. In June 1997, the ACCC deemed a 'Broadcasting Access Service' to be a declared service for the purposes of Part XIC ('the Deeming Statement'). [The ACCC was required to deem this service under section 39 of the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997].

In addition, in September 1999, the ACCC declared an Analogue Subscription Television Broadcast Carriage Service to be a declared service for the purposes of Part XIC . Both declarations apply to Telstra and Optus' cable networks. Seven Cable Television Pty Limited and Television and Radio Broadcasting Services Australia Pty Ltd (TARBS) have requested access from Telstra to these services.

In response, Telstra and Foxtel argued, amongst other things, that the ACCC's Deeming Statement and Declaration were invalid and that provision of access would deny Foxtel of a contractual right that is protected under the legislation.
While the ACCC's declarations apply to analogue services provided over cable networks, the ACCC continues to monitor developments in digital services, including broadcasting, to assess whether declaration of a broad-band cable service is appropriate at some future point.