Notification of five telecommunications access disputes

The following access disputes have been notified to the Australian Competition and Consumer Commission under Part XIC of the Trade Practices Act 1974:

• Telstra Corporation Limited (access seeker) notified a dispute with Hutchison 3G Australia Pty Limited (access provider) on 15 December 2008
• Telstra (access seeker) notified a dispute with Optus Mobile Pty Limited (access provider) on 15 December 2008
• Telstra (access seeker) notified a dispute with Optus Networks Pty Limited (access provider) on 15 December 2008
• Optus Networks (access seeker) notified a dispute with Telstra (access provider) on 21 January 2009
• Optus Mobile (access seeker) notified a dispute with Telstra (access provider) on 21 January 2009.

These access disputes relate to the price paid by Access Seekers to Access Providers for the Domestic Mobile Terminating Access Service (MTAS).

The MTAS 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 has commenced the arbitration process 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.

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.