Part XIC of the Trade Practices Act enables the ACCC to ‘declare’ telecommunications services. Upon declaration, standard access obligations apply. The access provider is obliged to supply the service to an access seeker upon request.
The ACCC has the ability to vary or revoke declarations, but with the exception of minor changes, must hold a public inquiry ahead of such changes.
The Trade Practices Act enables carriers to apply for exemptions from the standard access obligations that apply to a declared service. The ACCC can only grant exemptions where they promote the long-term interests of end-users (LTIE).
Division 5 of Part XIC of the Trade Practices Act enables access providers to voluntarily lodge written access undertakings with the ACCC specifying the terms and conditions upon which they agree to supply a specified service. The ACCC can accept or reject the undertaking.
The ACCC is vested with powers to arbitrate telecommunications access disputes and make a final binding determination to resolve a dispute. Arbitration hearings are private and the ACCC generally does not make any public comment on disputes except to announce when a dispute has been notified.
New access disputes
In July 2008 three new access disputes were notified to the ACCC under Part XIC of the Trade Practices Act. Macquarie Telecom Pty Ltd and Optus Networks Pty Ltd have each notified an access dispute concerning supply of the unconditioned local loop service (ULLS) by Telstra Corporation Ltd while Nec Australia Pty Ltd notified an access dispute relating to Telstra’s supply of line sharing service (LSS). With these notifications, the ACCC is now arbitrating 36 access disputes.
In July 2008 the ACCC made three interim determinations, one in relation to LSS and two in relation to ULLS. The ACCC did not make any final determinations in arbitration of disputes.
On 21 July 2008 the ACCC issued a note of warning to customers concerning the emergence of new smart-phone technology. The ACCC is particularly concerned that consumers may be misled if they are not made sufficiently aware that their data allocation can be exceeded—at significant cost. The importance of upfront disclosure of all the fees and charges relating to a particular plan by carriers was highlighted. The ACCC will remain vigilant on the issue.
ACCC to oversee access to Telstra exchange facilities
On 14 July 2008 the ACCC made a record-keeping rule that requires Telstra to keep records and report to the ACCC about access to Telstra exchange facilities. The ACCC believes there is a strong need for independent oversight of Telstra’s processes to cap exchanges to ensure that Telstra is held accountable and access seekers are not unreasonably denied access to Telstra exchanges to facilitate provision of ADSL2+ services to customers. Under the rule, Telstra needs to provide monthly reports to the ACCC on the details of it's decisions to cap and uncap exchanges, and the details of queued access seekers, their position and any progress in the queue.
ACCC publishes data on take up of broadband access services
On 21 July 2008 the ACCC published details of the take up of broadband access services on Telstra’s copper network in relation to metropolitan, regional and rural areas. The initial data provides a snapshot of the copper network as at 30 September 2007.
The ACCC aims to ensure the data is available for interested parties’ information and comment.
On 24 July 2008 Communications Group General Manager, Mr Michael Cosgrave, delivered a speech on Broadband Australia at the Third Annual Broadband Australia Conference.
Position paper on the development of water market rules
On 7 July 2008 the ACCC released a position paper seeking submissions on the development of water market rules.
Consistent with Part 4 of the Water Act 2007, the Minister for Climate Change and Water, Senator Penny Wong, wrote to the ACCC requesting advice on the water market rules.
The purpose of the water market rules is to free up the trade of water access rights within the Murray-Darling Basin. The rules will ensure that policies or administrative requirements of irrigation infrastructure operators holding a group water access entitlement on behalf of their member irrigators do not prevent or unreasonably delay trade.
Submissions responding to this paper are due no later than 15 August 2008.
Issues paper on the development of bulk water charge rules
On 7 July 2008 the ACCC released an issues paper seeking submissions on the development of bulk water charge rules.
Consistent with Part 4 of the Water Act 2007, the Minister for Climate Change and Water, Senator Penny Wong, wrote to the ACCC requesting advice on the water charge rules.
Water charge rules applied consistently across the Murray-Darling Basin will facilitate the efficient functioning of water markets by removing distortions to trade and by sending signals to water users about efficient investment in water infrastructure assets. Water charges based on the full cost recovery for water services will contribute to achieving an economically efficient and sustainable use of water resources and water infrastructure assets.
Submissions regarding this paper are due no later than 18 August 2008.
ACCC accepts undertaking for access to interstate rail track
On the 30 July 2008 the ACCC released its final decision to accept an undertaking from the Australian Rail Track Corporation (ARTC) that provides for train services to access much of Australia’s interstate rail track.
ARTC’s undertaking sets out the principles and processes under which ARTC, as an infrastructure provider of rail track, will be obliged to provide access to businesses seeking to run trains on ARTC’s interstate rail network. Following ACCC approval, ARTC’s undertaking sets out the terms that it is obliged to offer train operators.
The undertaking has been assessed by the ACCC pursuant to Part IIIA of the Trade Practices Act. Under these provisions the ACCC takes into account, among other things, the economically efficient operation and use of, and investment in, the infrastructure. The ACCC approved ARTC’s undertaking following an extensive public consultation process, including submissions from interested parties, submissions on the ACCC’s draft decision and submissions on earlier versions of the undertaking ARTC lodged with the ACCC in June and December 2007.
The ACCC completed its assessment within a tight timeframe, releasing its draft decision within four months of receiving ARTC’s undertaking application and its final decision within three months of its draft decision.
Part IIIA allows infrastructure providers to submit an access undertaking to the ACCC for approval. An access undertaking allows access providers to obtain a degree of certainty about the terms and conditions on which access will be made available to their infrastructure. Users of that infrastructure are also provided with certainty about the conditions of access in order that they may undertake decisions to invest in using the service.
ACCC issues final decision on Australia Post’s proposed price increases
On 30 July 2008 the ACCC decided not to object to Australia Post’s proposed increases in prices for a number of its letter services, including an increase in the basic postage rate (BPR) from 50 cents to 55 cents. The price increases also included small letters, large letters and pre-sort letters.
While the ACCC has formed the view not to object to Australia Post’s price increases, it has also expressed concern about the level of certainty that Australia Post’s proposal would provide to its customers. As a result, the ACCC has established a framework for future price notifications that will provide certainty for Australia Post’s customers and encourage Australia Post to reduce costs and improve productivity over time.
Australia Post must now give written notice of this change to the basic postage rate to the Minister for Broadband, Communications and the Digital Economy, the Hon. Stephen Conroy. The minister has the power under the Australian Postal Corporation Act 1989 to disapprove proposals to vary the basic postage rate within 30 days after receiving written notice.
Australia Post proposes to increase postal prices with effect from 15 September 2008.
Queensland distribution determination 2010 to 2015
On 7 July 2008 the Australian Energy Regulator (AER) released a paper setting out its proposed approach to the classification of Energex’s and Ergon Energy’s distribution services and the control mechanisms to apply to standard control services and alternative control services in their upcoming 2010–15 distribution determinations.
The AER held a round table forum on 22 July 2008. In response to its proposed position paper and the round table discussion, the AER received seven submissions from interested parties.
The AER must publish its framework and approach paper on these matters by 31 August 2008.
The paper, the DNSP’s proposals and further information about the process the AER must follow in making its distribution determinations can be found on the AER website.
EnergyAustralia contingent project application—replacement of feeder cables 908 and 909
On 9 May 2008 EnergyAustralia lodged a contingent project application with the AER, requesting approval to amend its 2005 electricity transmission revenue determination to allow for the recovery of costs attributable to replacing feeder cables 908 and 909.
On 22 July 2008 the AER released its determination to approve a total forecast capital expenditure of $133.6 million ($2004) and amended EnergyAustralia’s 2008–09 maximum allowed revenue to $130.7 million ($nominal) based on a revised X factor of –10.88 per cent.
A copy of the AER statement of reasons and report by CHC Associates is available on the AER website.
On 1 July 2008 the AER became the economic regulator for covered gas transmission and distribution pipelines. The AER assumed responsibility for the regulation of transmission pipelines from the ACCC and the regulation of distribution pipelines in all jurisdictions (except Western Australia) from state regulators.
On 16 July 2008 the AER released two guidelines to support the transition from the former legislative framework to the National Gas Law (NGL).
The annual compliance guideline, which includes a preliminary information order (Draft annual compliance guideline) and a discussion paper relevant to its proposed annual compliance process, replaces the former ring fencing reporting process undertaken by the ACCC for transmission services providers and by various state and territory regulators for distribution service providers.
The Draft annual compliance guideline is intended to provide information to service providers and interested parties in regard to the annual compliance process and how service providers report this compliance to the AER.
It focuses on a service provider’s requirements to report compliance on a number of issues with particular focus on a service provider’s general duties and the structural and operational separation (ring fencing) requirements under the NGL and National Gas Rules (NGR).
Submissions for this preliminary consultation process close on 15 August 2008.
In addition, the AER released the Draft guideline for resolution of distribution and transmission pipeline access disputes under the National Gas Law and National Gas Rules (the draft access dispute guideline) and a discussion paper for comment.
The draft access dispute guideline has been prepared to assist service providers and users or prospective users to understand how the AER will conduct an access dispute hearing under the NGL and NGR. The guideline replaces the ACCC’s Resolution of transmission pipeline access disputes under the Gas Code—draft guideline relevant for access disputes for transmission pipelines dealt with under the previous Gas Pipelines Access Law and the National Third Party Access Code for Natural Pipeline Systems.
Submissions for this consultation process close on 24 October 2008.
