Notification of telecommunications access disputes

The Australian Competition and Consumer Commission has recently received notification of two telecommunication access disputes under Part XIC of the Trade Practices Act 1974.

The following parties have each separately notified the ACCC of an access dispute with Telstra:

• Request Broadband Pty Ltd notified a dispute on 21 February 2008 relating to Telstra's supply of the Line Sharing Service, and
• TransACT Capital Communications Pty Ltd notified a dispute on 4 February 2008 relating to Telstra's supply of the Unconditioned Local Loop Service.

The LSS allows two carriers to provide separate services over a single metallic pair or line. The higher frequency part of the line is used by the access seeker to supply broadband services, while the access provider simultaneously supplies a PSTN voice service over the same portion of the unconditioned local loop.

The ULLS involves the use of unconditioned cable, primarily copper pairs, between end users and a telephone exchange. The ULLS essentially gives an access seeker the use of the copper pair without any dial tone or carriage service. This allows the access seeker to use the ULLS in conjunction with its own equipment in an exchange to provide a range of services, including traditional voice services and high speed internet access, to end-users connected to that exchange.

The ACCC has commenced the arbitration processes for these access disputes. Given that the legislation contemplates that arbitrations be conducted in private, the ACCC will not be making any public comment at this stage.

Background

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.