Interim determination published in access arbitration
The Australian Competition and Consumer Commission today published the interim determination, together with the statement of reasons, in the AAPT Ltd (access seeker) – Optus Networks Pty Ltd and Optus Mobile Pty Ltd (access provider) mobile terminating access service* arbitration.
Under the Trade Practices Act 1974 the ACCC may make an interim determination in a dispute prior to making a final determination.
The interim determination sets out the charges to be paid by AAPT to Optus for the supply of the MTAS, except where agreed otherwise by the parties. The statement of reasons sets out the ACCC's reasons for the interim determination.
The interim determination sets an initial price for the MTAS of 18 cents per minute, decreasing to 15 cents per minute on 1 January 2006 for the remainder of the 12 month period.
The Commission issued a draft determination and statement of reasons on 28 October 2005. The interim determination is in effect for 12 months or until a final determination comes into effect or the interim determination is revoked. The ACCC is required to consult with the parties regarding publication of the interim determination.
The ACCC has considered the parties' submissions and, except for information considered confidential, the interim determination and statement of reasons are published in full.
Given that the legislation contemplates that arbitrations otherwise be conducted in private, the ACCC will not be making any further public comment at this stage.
* The Domestic Mobile Terminating Access Service is a wholesale input, used by providers of fixed-to-mobile and mobile-to-mobile calls, to allow their customers to call mobile phone users. It allows consumers (either fixed-line or mobile) to call mobile users connected to another network. The carrier whose customer initiates the call pays the carrier whose customer receives the call for the mobile terminating access service.
The disputes relate to the charges, and other terms and conditions, for carrying that portion of a call which terminates on Optus's mobile network.
The ACCC is vested with arbitration powers enabling it to make directions and 'do all things necessary for the speedy hearing and determination of an access dispute'. For the ACCC to engage in arbitration, an access seeker and/or an access provider must notify the ACCC of an access dispute. The ACCC may arbitrate an access dispute only where:
a declared service is supplied or proposed to be supplied by a carrier or carriage service provider
one or more standard access obligations apply or will apply to the carrier or carriage provider in relation to the declared service, and
an access seeker is unable to agree with the carrier or carriage service provider regarding the terms and conditions on which the carrier or carriage service provider is to comply with the standard access obligations.
Where a dispute cannot be resolved after private negotiations, mediation and/or conciliation, either of the access parties may refer the matter to the ACCC. Arbitration by the ACCC would be considered as a final solution for the parties in dispute. Where the ACCC is notified of an access dispute the ACCC must determine the matter, unless it decides to terminate the arbitration or the notification is otherwise withdrawn.
