(Joint statement by Australian Competition and Consumer Commission and the Commonwealth Bureau of Meteorology)
In December 1995 the Australian Competition and Consumer Commission (ACCC) commenced legal proceedings against the Commonwealth Bureau of Meteorology (BOM) alleging BOM had taken advantage of its market power to prevent competition in the market for specialised services.
In particular, the ACCC alleged that BOM had refused to provide information to the Meteorological Service of New Zealand Limited (MetService).
MetService is the New Zealand Government's corporatised national weather forecasting service. In addition to providing national meteorological services to the New Zealand Government, MetService also provides a range of services to other users on commercial terms. One of the commercial services MetService produces is a specialised computer generated graphical presentation of the weather maps and forecasts, able to be specifically and individually tailored for use by newspapers to produce a weather page.
In 1994 MetService introduced its service to the Australian print media and sought data direct from BOM to enable it to produce its specialised package. At the time MetService introduced its services to Australia, BOM was charging a number of media outlets for similar special formatting of its information. While under the Meteorology Act 1955 BOM was required to provide a basic weather warning and forecast service to the public free of charge it was able under the Act and its policies to charge for specialised services specifically tailored for a particular client's needs.
These specialised commercial services including some specially formatted weather presentations for the media were provided by BOM's commercial arm, the Special Services Unit. BOM has acknowledged that it declined direct information access to MetService. It has also acknowledged that it progressively extended the provision of free tailored services to the media under its developing Basic Service following MetService's entry to the market.
BOM asserts that it acted as it did in the belief that its action was in accordance with its international obligations under the Convention and Resolutions of the World Meteorological Organisation which aim to facilitate the free and open exchange of meteorological information. These Resolutions seek to limit the operations of foreign national meteorological services in a domestic market. BOM also states that the change to its basic service to include enhanced graphics was a natural evolution of that service.
The ACCC asserts that the refusal to supply direct access to MetService and the changed practice of specialised services was done to disadvantage a potential rival and in contravention of section 46 of the Trade Practices Act. Section 46 prohibits a person with significant market power from taking advantage of that power for anti-competitive purposes. Discussions during and after Court sponsored mediation have resulted in a settlement of the court proceedings which both parties believe promotes the public interest. In addition to providing a means of direct access for an Australian registered subsidiary of MetService, the settlement negotiated advances the public interest by promoting and facilitating competition in the market place for specialled weather services whilst at the same time recognising the benefit in maintaining the free international exchange of information and the provision of consistent and comprehensive weather warnings and forecasts to the public through he media.
The ACCC considers the settlement negotiated to promote both compliance with the Trade Practices Act and national competition policy objectives. Under the resolution BOM has without admission agreed to a consent order to provide direct access to an Australian registered subsidiary of MetService. This subsidiary will not be a national meteorological service for the purpose of the World Meteorological Organisation Convention and Resolutions. The key elements of the broad settlement include:
(a) the publication of an agreed access policy document which details the basis and rights of access to information held by the Bureau and the considerations that apply; and
(b) the use of a model licence agreement which
(i) sets out conditions applicable to the access and use of information held by BOM,
(ii) provides dispute resolution procedures (including the option of mediation by an independent third party);
(iii) specifies termination grounds and rights of parties; and
(iv) provides for additional forecasting elements to be offered to the media in addition to the basic service offered by BOM whilst maintaining consistency with the comprehensive forecasting to the public through the free to air and print media.
The Bureau has undertaken not to change these arrangements without consulting the ACCC. The ACCC Chairman, Professor Allan Fels, welcomed the settlement as a sensible use of resources by both parties and one which would encourage the development of specialised meteorological services to the benefit of Australia. Professor Fels said that while the proceeding had largely focused on specialised services to the media, the settlement provided a framework that was applicable to all commercial and industry sectors requiring specialised services include: off-shore drilling operations, telephone services, electronic and print, agriculture, tourism, mining, building and construction, insurance and maritime and aviation.
Professor Fels also stated that the intent and key elements of the resolution are consistent with key recommendations of the recently released report to the government by Professor Ralph Slatyer's on opportunities in the provision of meteorological services. Professor Slatyer's report identified conformity to the Trade Practices Act and national competition policy as a must for BOM in its business activities, while reaffirming the importance of the Bureau's public interest role. The Commonwealth Director of Meteorology, Dr John Zillman, also welcomed the settlement. Dr Zillman believes that the outcome will enable the Bureau to continue to fulfil its statutory responsibility to provide a comprehensive official public weather service to the community at large through its long-standing partnership with the mass media.
He also believed that the agreed arrangements will allow the Bureau to work within the spirit of World Meteorological Organisation guidelines aimed at maintaining the free and unrestricted exchange of meteorological data and products between nations. Because of Australia's heavy reliance on free access to the weather satellites of other countries, for the provision of essential public weather forecast and warning services, we are a particular beneficiary of international co-operation and free exchange.
Dr Zillman acknowledged the need for the Bureau to carefully avoid any arrangements for the delivery of its services to the public which could be in breach of the Trade Practices Act. He will put in place a program to ensure that the relevant officers of the Bureau are aware of their obligations under that Act. He emphasised that the Bureau will conform with the requirements of national competition policy in its provision of commercial specialised services to individual customers.
Further information Australian Competition and Consumer Commission: Professor Allan Fels, Chairman, pager (016) 373 536 Ms Lin Enright, Director, Public Relations, (06) 264 2808
Bureau of Meteorology Dr John Zillman, Director of Meteorology, (03) 9669 4558 Mr Peter Noar, Acting Deputy Director Services (03) 9669 4217 or (03) 9870 0560 (h) or (0412) 144 605 ACCC
