Federal Court makes declaration on scope of FOXTEL's digital pay TV service undertaking
On 28 March 2008 the Federal Court declared that, in essence, FOXTEL's special access undertaking for its digital Pay TV set top unit service applies only to those set top units that are actually in use by FOXTEL subscribers.
The declaration clarifies the precise scope of the undertaking from FOXTEL. The formal declaration can be accessed at the ACCC website, www.accc.gov.au.
This follows the Federal Court's December 2007 decision to uphold the decision of the ACCC to accept the special access undertaking from FOXTEL.
Seven Network had applied to the court to have the ACCC's decision overturned. In the alternative, it sought a declaration clarifying the scope of FOXTEL's undertaking.
Seven has been ordered to pay the ACCC's costs. No costs order was made between Seven and FOXTEL.
The ACCC issued a draft decision to reject the first version of FOXTEL's special access undertaking for its digital Pay TV set top unit service 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.
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 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 to accept FOXTEL's undertaking, under section 5 of the Administrative Decisions (Judicial Review) Act 1977. In the alternative, it sought a declaration clarifying the scope of FOXTEL's undertaking.
In December 2007 the Federal Court upheld the decision of the ACCC to accept FOXTEL's undertaking. The court also decided that it would make a declaration clarifying the scope of FOXTEL's undertaking. Following submissions on the matter by Seven and FOXTEL, the declaration was made by the court on 28 March 2008.
