Foxtel special access undertaking for the digital set top unit service (October 2005)
On 6 October 2005 Foxtel Management Pty Ltd and Foxtel Cable Television Pty Ltd (together, Foxtel) lodged a special access undertaking with the ACCC under s. 152CBA of the Trade Practices Act 1974 (the Act). The special access undertaking relates to the terms and conditions of access to Foxtel’s digital set top unit service.
The ACCC released a discussion paper on Foxtel's special access undertaking on 10 November 2005. Submissions on the undertaking were to be provided to the ACCC on or before Tuesday 14 February 2006.
The ACCC released a draft decision on the undertaking on 1 September 2006. Submissions in response to the draft decision were to be provided to the ACCC by 25 September 2006. On 1 December 2006, prior to the ACCC making a final decision on the October 2005 Undertaking, Foxtel withdrew its application and submitted a revised special access undertaking.
Process and indicative timetable
The ACCC is required to make a decision to accept or reject the undertaking six months after the undertaking was received. This date will be extended by:
the consultation period specified by the ACCC
the time taken to respond to a request made by the ACCC under s. 152CBB for information
the ACCC extending the time under s. 152CBC(7).
The undertaking was received on 6 October 2005. For the purpose of s. 152CBD(2)(d)(i), the undertaking was published on 10 November 2005 (the date when the ACCC published its discussion paper). Submissions were to be provided to the ACCC on or before 14 February 2006.
The ACCC made a request for further information under s. 152CBB of the Act to Foxtel on 23 March 2006. Foxtel replied to the request on 11 April 2006.
The ACCC made a request for further information under s. 152CBB of the Act to Foxtel on 13 April 2006. Foxtel replied to the request on 24 April 2006.
The ACCC made a request for further information under s. 152CBB of the Act to Foxtel on 31 May 2006. Foxtel replied to the request on on 27 June 2006.
On 1 September 2006 the ACCC gave Foxtel notice of its decision to extend the decision-making period by three months under s. 152CBC(7) of the Act in relation to special access undertakings. The ACCC is required to make a decision to accept or reject the undertaking on or before Saturday, 10 December 2006.
On 1 December 2006, prior to the ACCC making a final decision on the October 2005 undertaking, Foxtel withdrew its application and submitted a revised special access undertaking.
Application
The Foxtel application consists of:
covering letter from Foxtel (6 October 2005)
Foxtel’s special access undertaking including appendixes 1 and 2
Foxtel’s submission including attachments 1 to 19.
Foxtel has claimed confidentiality with respect to the following attachments (or parts thereof) to its submission:
attachment 2: Bill McDonald, Australian Spectrum Consultants Pty Ltd—Report on Satellite Amendments [Part confidential]
attachment 3: Confidential Statement of Peter Campbell regarding the terms of FOXTEL's digital content agreements [Confidential]
attachment 4: Henry Ergas, Charles River & Associates: Reasonableness of Limiting the Supply of FOXTEL's Conditional Access Service [Part confidential]
attachment 6: Philip Williams—Frontier Economics: Report on Market Definition and Promotion of Competition [Part confidential]
attachment 8: DN Ridehalgh, PricewaterhouseCoopers: Report on Cable IBAC Cost Schedules dated 13 July 2005 [Part Confidential]
attachment 9: DN Ridehalgh, PricewaterhouseCoopers: Report on Satellite IBAC Cost Schedules dated 13 July 2005 [Part confidential]
attachment 10: DN Ridehalgh, PricewaterhouseCoopers: Independent Audit Report on the Schedule of Gross Capital Purchase Costs of Satellite Set Top Units (STUs) dated 13 July 2005 [Part confidential]
attachment 11: Maria Martin, PricewaterhouseCoopers: Report on Gross Purchase Cost of Cable Set Top Units dated 19 January 2001 [Part confidential]
attachment 12: DN Ridehalgh, PricewaterhouseCoopers: Independent Review Report on FOXTEL's Digital Regulatory Accounting Procedures Manual dated 13 July 2005 [Part confidential]
attachment 13: DN Ridehalgh, PricewaterhouseCoopers: Independent Audit Report on FOXTEL's Digital Access Pricing Model dated 13 May 2005, version 6, for the T1 period dated 13 July 2005 [Part confidential]
attachment 15: Stephen Gray, SFG Consulting: A Beta Estimate for FOXTEL [Part Confidential]
attachment 16: Mark Ettridge, Market Ridge Pty Ltd: Final Report, Consultancy Report to the Australian Competition and Consumer Commission, Subscriber Management and Conditional Access Systems dated 19 December 2001 [Part confidential]
attachment 19: Folder of statements in relation to market definition [Confidential]
The following attachments to Foxtel’s submission are available on the ACCC website:
Full version: attachments 1, 5, 7, 14 , 17 and 18
Part confidential: attachments 2, 4, 6, 8–13, 15 and 16
Attachments 3 and 19 (confidential) are not available on the ACCC website.
Also included is a submission from Foxtel on the interaction of the proposed special access undertaking, should it be accepted by the ACCC, and the existing s. 87B digital access undertaking.
The process to be followed by parties who wish to obtain access to the confidential versions of Foxtel’s attachments is set out below.
Other documentation
Three interested parties—Two Way TV Australia, Seven Network and Ten Network—provided submissions in response to the ACCC's discussion paper.
Foxtel has provided supplementary submissions in support of its SAU.
Consultancy reports, ACCC information requests and correspondence between Foxtel and the ACCC are also available below.
