ACCC implements the Australian Competition Tribunal's 2009 WLR, LCS And PSTN OA individual exemption orders
The Australian Competition and Consumer Commission today published a list of 129 Exemption exchange service areas (ESAs) for the wholesale line rental (WLR), local carriage service (LCS) and public switched telephone network originating access (PSTN OA) services.
The list of Exemption ESAs was prepared in accordance with the Australian Competition Tribunal's WLR, LCS and PSTN OA Individual Exemption Orders made in late 2009 and is based on information provided by Telstra and access seekers.
According to the Tribunal's Orders, Telstra will be exempt from complying with the standard access obligations in the Exemption ESAs for the declared WLR, LCS and PSTN OA. In practice this means access seekers will no longer be able to rely on regulated access to the services in these ESAs and must commercially agree the terms and conditions of access without the option of an arbitrated outcome by the ACCC.
The list of Exemption ESAs is not of itself definitive as certain conditions and limitations imposed by the Tribunal must also be met or the exemptions will not take effect. For example, the exemptions will not take effect in a particular ESA if Telstra ceases to supply the unconditioned local loop service (ULLS) in that ESA; or if an exchange is classified as capped, potentially capped or constructively capped. A capped exchange is where Telstra has determined that an exchange building is unavailable for access by access seekers. Telstra is under a positive obligation to notify the ACCC if an Exemption ESA becomes a capped or potentially capped exchange.
The remaining conditions and limitations apply to individual access seekers depending on their circumstances and commercial arrangements. For example, if an access seeker has an in force agreement with Telstra (provided the agreement was in place at 30 September 2009) or is a queued access seeker the exemptions will not take effect in a given Exemption ESA. Further the exemptions will not apply in relation to end-users receiving bundled voice and broadband services from an access seeker, unless Telstra develops a line sharing service to ULLS migration process.
As these access seeker-specific conditions and limitations largely hinge on the private commercial agreements between the parties, as well as their arrangements for specific ESAs, it will be up to individual access seekers to assess whether the exemptions apply in their particular case. Access seekers should be aware that the Orders do not specifically provide for notification to the ACCC or amendment to the list of Exemption ESAs for access seeker-specific conditions and limitations.
Access seekers are encouraged to refer to the Tribunal's Orders in the first instance, which set out the conditions and limitations in full, in order to make their own assessment about whether the conditions and limitations are enlivened by their individual circumstances.
The list of Exemption ESAs are all in metropolitan areas of Australia and will take effect on 30 December 2010. In keeping with the Tribunal's Orders the ACCC will refresh the list of Exemption ESAs on a six-monthly basis.
