Interim determinations in telecommunications access disputes
The Australian Competition and Consumer Commission today published the interim determinations, together with the statement of reasons, in two telecommunications access disputes regarding the supply of the mobile terminating access service* (MTAS) by Optus Mobile Pty Limited and Optus Networks Pty Limited (together, the Optus Entities) to Telstra Corporation Ltd (Telstra).
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 Telstra to the Optus Entities 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 determinations. The interim determinations were made on 18 December 2006.
The interim determinations set a price for the MTAS of 12 cents per minute for the period commencing 1 January 2007 to 30 June 2007.
The ACCC is legally obliged to consult with the parties for a period of 14 days regarding publication of these interim determinations and statement of reasons. The ACCC began consultations on 25 January 2007 and considered relevant submissions before deciding to publish both interim determinations and the accompanying statements of reasons in their entirety.
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 disputes relate to the charges, and other terms and conditions, for carrying that portion of a call which terminates on the Optus Entities' mobile network.
The interim determinations will be available on the ACCC website, www.accc.gov.au, under Published arbitration determinations.
* 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 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 an 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 the 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 resolution 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.
