ACCC issues discussion paper on Telstra and Foxtel's analogue access undertakings for pay TV

The Australian Competition and Consumer Commission today issued a discussion paper on Telstra and Foxtel's analogue access undertakings relating to access to the cable Pay TV network operated by Telstra and Foxtel.

These undertakings only deal with the provision of analogue services, except to the extent that they provide a transition path to digital services.

The undertakings, lodged with the ACCC on 21 November 2002, specify the price and non-price terms and conditions on which Telstra and Foxtel propose to supply access to the Analogue Subscription Television Broadcast Service, which was declared by the ACCC under Part XIC of the Trade Practices Act 1974.

Under the Act, the ACCC must accept or reject the undertaking based on whether it considers the terms and conditions to be reasonable.

"The undertakings, if accepted by the ACCC, will determine the terms and conditions on which other service providers can obtain access to Telstra's hybrid-fibre coaxial cable (HFC) network) and to Foxtel's analogue set top units (STUs) in the absence of commercial agreement between the parties", ACCC Commissioner responsible for telecommunications, Mr Ross Jones, said today.

"This will enable service providers to provide their own analogue pay TV services in competition to Foxtel's and Optus's current analogue services".

The lodgement of the undertakings follows the ACCC's decision on 13 November 2002 to allow the content supply arrangement between Foxtel and Optus. Pursuant to that decision, the ACCC accepted court enforceable undertakings from a number of participants in the pay TV industry, including from Telstra and Foxtel under section 87B of the Act.

These 87B undertakings included, inter alia, an undertaking to lodge access undertakings in relation to the terms and conditions on which access would be provided in respect of analogue pay TV services.

"The ACCC intends to assess the undertakings in an open public process. All available information will be taken into account, including relevant material provided in the assessment of Telstra's and Foxtel’s previous 87B undertakings".

Copies of the undertakings together with the discussion paper will be available on the ACCC web site. The ACCC invites submissions on any aspect of the undertakings. Also on the website are submissions from Telstra and Foxtel in support of their undertakings.

The ACCC seeks comments on the undertakings by 7 February 2003.

BACKGROUND

Telstra and Foxtel have lodged access undertakings with the Australian Competition and Consumer Commission.

Under section 152BS of the Trade Practices Act 1974, a carrier or carriage service provider may provide the Commission with a written access undertaking under which the carrier or carriage service provider undertakes to comply with the terms and conditions specified in the undertaking in relation to the standard access obligations applicable to that provider.

The Commission declared the analogue pay TV service on 1 September 1999. Carriers and carriage service providers who provide an active declared service are required to comply with standard access obligations in relation to those services. These include inter alia, the obligation to supply the active declared service to an access seeker in order to allow the access seeker to provide carriage and/or content services.

The undertakings specify the terms and conditions on which Telstra and Foxtel propose to meet their obligations under Part XIC of the Act to supply the declared service.