New Foxtel special access undertaking for digital set top unit service
On 1 December 2006, Foxtel withdrew its proposed special access undertaking in relation to the pay TV Digital Set Top Unit service lodged with the Australian Competition and Consumer Commission in October 2005.
The ACCC issued its draft decision to reject the special access undertaking on 1 September 2006, on the grounds that it could not be satisfied that the terms and conditions of the undertaking were consistent with the standard access obligations in the Trade Practices Act 1974. However, it had not reached a final decision.
In its place, Foxtel has lodged a revised special access undertaking. The revised special access undertaking incorporates changes that Foxtel states are intended to address the concerns of the ACCC expressed in its draft decision to reject the original special access undertaking.
Under Part XIC of the Act, the ACCC must decide either to accept or reject a special access undertaking. The Act gives the ACCC limited discretion to consider amendments/variations to a special access undertaking. Accordingly, Foxtel's proposed changes to its original special access undertaking required the lodgement of a new special access undertaking and the ACCC to undertake a new assessment process.
The ACCC will shortly begin its assessment process of the new special access undertaking with the release of a discussion paper seeking submissions from interested parties.
Copies of Foxtel's new special access undertaking and other relevant documentation (including Foxtel's supporting submissions and other material) will be available on the ACCC website.
The special access undertaking is a voluntary undertaking given under the Trade Practices Act 1974 that specifies the price and non-price terms and conditions upon which Foxtel proposes to supply access to the Digital Set Top Unit Service in Foxtel subscriber homes, in the absence of commercial agreement between the parties.
Digital set top units are used to receive, decrypt and display pay-TV content (including interactive television content) at the customer's premises.
Under Part XIC of the Act, the ACCC must decide whether to accept or reject the undertaking.
If accepted by the ACCC, future access to those services would be on the terms and conditions of the undertaking.
The ACCC may only accept a special access undertaking if:
it is satisfied that the terms and conditions are reasonable
it is satisfied that they would be consistent with the standard access obligations of the Act
it is satisfied that the undertaking is consistent with any Ministerial pricing determination, and
