Federal Court upholds ACCC decision on Foxtel digital Pay TV service
The Federal Court today upheld the decision of the Australian Competition and Consumer Commission to accept a special access undertaking from Foxtel for its digital Pay TV set top unit service.
The undertaking was accepted by the ACCC in March 2007. Seven Network applied to the Federal Court to have the ACCC's decision overturned. Justice Buchanan today refused Seven's application and found that the ACCC had made no error in its decision.
Foxtel's undertaking permits independent providers of digital content channels – for example, Setanta Sports – to offer their channels directly to Foxtel customers through Foxtel's digital set top units.
Foxtel was the first company to register a special access undertaking with the ACCC. The special access undertaking provisions began in 2003. They were added to Part XIC of the Trade Practices Act 1974 to allow companies to obtain upfront regulatory certainty as to the terms and conditions of access they must provide on their new telecommunications infrastructure.
"The ACCC welcomes the decision," ACCC Chairman, Mr Graeme Samuel, said. "It demonstrates how firms can use the Act to achieve regulatory certainty as to new investments. This benefits both the investor and access seekers and, ultimately, the long term interests of Australian consumers and business end-users."
The court also gave Seven Network a declaration in a separate point in which the ACCC was not involved.
The ACCC issued a draft decision to reject the first version of Foxtel's undertaking in September 2006.
Foxtel then lodged a revised undertaking in December 2006, with improved terms and conditions. For example, Foxtel provided better access to its electronic program guide, wrote contractual terms to apply more equally to Foxtel and access seekers, and revised access pricing.
The ACCC accepted the revised, improved special access undertaking in March 2007.
In April 2007, Seven Network applied to the Federal Court for a review of the ACCC's decision under section 5 of the Administrative Decision (Judicial Review) Act 1977.
