Foxtel digital set top unit service special access undertaking discussion paper

A discussion paper on a new special access undertaking lodged by Foxtel in relation to the pay TV Digital Set Top Unit service was issued today by the Australian Competition and Consumer Commission.

Foxtel lodged its new special access undertaking on 1 December 2006, to replace a special access undertaking previously lodged with the ACCC in October 2005.

The ACCC issued a draft decision to reject the original special access undertaking on 1 September 2006. The ACCC had not reached a final decision before Foxtel withdrew its original special access undertaking.
 
Foxtel has made various changes to the price and non-price terms and conditions of access to its digital set top units to address the ACCC's concerns on the original undertaking.

One of the most important differences between the undertakings is that the new undertaking is now limited to setting out the terms and conditions of access to Foxtel's digital set top units. It no longer attempts to prevent regulated access to other related services, such as conditional access and service information services.

The ACCC noted in its draft decision on the original undertaking that formally exempting other services from regulation under the Trade Practices Act 1974 would require a separate, formal exemption. Nevertheless, the ACCC also indicated in that draft decision that it sees no compelling case for declaration of these other related services, based on the view that they are contestable inputs.

"The preliminary view of the ACCC is that the revised undertaking can be accepted, but this is subject to public consultation", ACCC Chairman, Mr Graeme Samuel, said today. "The ACCC has therefore commenced a public consultative process, as required by the Act.

"All available information will be taken into account, including the undertaking itself, submissions provided by Foxtel in support of its undertaking, and other submissions from interested parties. The ACCC will also take into account the submissions made in respect of the original undertaking."

As there has been extensive consideration of the matter to date, the ACCC may proceed direct to a final decision without a further draft decision, depending on the nature of any submissions received.

Copies of the new undertaking, together with the discussion paper, are available from the ACCC's website (see link below). The ACCC invites submissions on any aspect of the undertaking by no later than 5 February 2007.