Background

From 1 January 2011, sections 152BEA and 152BEB of the Competition and Consumer Act 2010 (CCA) require that carriers or carriage service providers (CSPs) lodge Access Agreements, Variation Agreements and Notifications of Termination of Access Agreements with the ACCC. Access agreements must be lodged with the ACCC within 28 days after the day on which the agreement was entered into, or the service was declared, as relevant.

Section 152BE of the CCA defines the terms ‘access agreement’ and ‘variation agreement’. Access Agreements are defined in a broad way and include an agreement that (among other things) is between an access seeker and a carrier or CSP that relates to access to a declared service.

Sections 152BEA and 152BEB of the CCA apply to all currently declared services, including the:

Digital Set-Top Unit Service (FOXTEL)*
Domestic Transmission Capacity Service (DTCS)
Line Sharing Service (LSS)
Local Bitstream Access Service (LBAS)
Local Carriage Service (LCS)
Mobile Terminating Access Service (MTAS)
Public Switched Telephone Network Originating Access (PSTN OA)
Public Switched Telephone Network Terminating Access (PSTN TA)
Unconditioned Local Loop Service (ULLS)
Wholesale asymmetric digital subscriber line service (WDSL)
Wholesale Line Rental (WLR)

* Note that this service is subject to a special access undertaking and has not been declared under section 152AL(3) of the CCA.

The provisions also apply to services supplied by NBN corporations (such as NBN Co) that are declared services pursuant to subsections 152AL(8A), (8D) and (8E) of the CCA. Under subsection 152AL(8D) of the CCA, where NBN Co publishes a Standard Form of Access Agreement for its services on its website, the service to which the Standard Form of Access Agreement relates is declared. NBN Co has published five Standard Forms of Access Agreement:

the First Release Sites (Trial) Agreement

the First Release Satellite Service (Trial) Agreement

the Interim Satellite Service (First Release) Agreement

the Wholesale Broadband Agreement

the Wireless Trial Agreement

Rationale for the lodgment of Access Agreements

The current regulatory regime allows the ACCC to set default price and non-price terms of access to declared services in Access Determinations. Access Determinations will only apply where there is no commercial agreement (Access Agreement) between an access seeker and an access provider.

Access Agreements prevail, to the extent of any inconsistency, over terms and conditions specified in any Access Determination, Special Access Undertaking or Binding Rule of Conduct. Consequently, Parliament considered “It is therefore important that the ACCC be aware of access agreements and of the terms and conditions they contain, as this will assist the ACCC in carrying out its regulatory functions under Parts XIB and XIC of the CCA.” (Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010 (Cth), Explanatory Memorandum, p.200)

Examples of Access Agreements

Reciprocal agreements

These are agreements between an access seeker and carrier/CSP to both acquire and supply a declared service. For example, an access seeker may have an agreement to acquire the PSTN OA and PSTN TA from an access provider, and also to supply that access provider with those same services.

Resale of wholesale services

The ACCC considers that sections 152BE and 152BEA of the CCA apply to agreements for the resale of wholesale declared services to wholesale customers. For example, if an access seeker purchased declared WLR from a carrier or CSP and subsequently made an agreement with another access seeker to resell the WLR service to that access seeker, the ACCC considers that the agreement to resell the WLR service requires lodgment under section 152BEA of the CCA.

Revocation of geographic exemptions

The ACCC’s recent decision to revoke the fixed line telecommunications geographic exemptions may also be of relevance to certain access providers. On 14 December 2011 the ACCC decided to vary the fixed line services Final Access Determinations to revoke the geographic exemption provisions relating to the WLR, LCS and PSTN OA.

The effect of the decision is that WLR, LCS and PSTN OA services provided in the previously exempt Attachment A exchange service areas are no longer exempt from declaration. As a result, any new agreements for access to the WLR, LCS and PSTN OA in these areas will require lodgment from 17 December 2011 in accordance with section 152BEA of the CCA. Further information regarding this decision is available on the ACCC website: http://www.accc.gov.au/content/index.phtml/itemId/990530

Lodgment obligations

Access Agreements must be lodged with the ACCC within 28 days after the day on which the agreement was entered into. Access agreements must also be lodged within 28 days after the service was declared (ss.152BE(2) and 152BEA(2) of the CCA). The obligations to lodge access agreements apply to agreements entered into from the commencement of the lodgement provisions (1 January 2011).

Compliance with sections 152BEA and 152BEB is a carrier licence condition and a service provider rule. Failure to comply with these provisions may render the carrier or carriage service provider subject to the enforcement provisions in the Telecommunications Act 1997. A breach of a carrier licence condition or service provider rule may result in a penalty of up to $10 million for each contravention.

The ACCC notes that it does not have a requirement to undertake an approval process for any lodged Access Agreements: “It should be noted that there is no requirement that the ACCC approve any access agreement that is lodged, and the fact that an agreement has been lodged with the ACCC and the ACCC has made no comment about it is not intended to confer any implicit regulatory approval for that agreement.” (Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010 (Cth), Explanatory Memorandum, p.201).

Lodgment process

Agreements should be lodged by email to accessagreements@accc.gov.au. The ACCC requests that any documents lodged should be text searchable, either in PDF or Microsoft Office format. The ACCC notes that emailed attachments can be a maximum of 10 MB. Please send an email to: accessagreements@accc.gov.au if you need to lodge a file larger than 10 MB.

At this stage the ACCC has not made an instrument for the purposes of specifying what information (if any) to include with Access Agreements (subsections 152BEA(1)(d), (2)(d), or (3)(b)) of the CCA).

Extension for lodgment

Under subsection 152BEA(9) of the CCA, the ACCC is able to grant an extension prior to the expiry of the 28 day period for compliance regarding the lodgment of access agreements and variation agreements. If a carrier or carriage service provider considers that it will not be able to lodge an Access Agreement within the statutory time frame, it should write to the ACCC at accessagreements@accc.gov.au to request an extension. Such a request should detail the reasons why the carrier or carriage service provider requires an extension and outline the details of the agreement (including the relevant declared service and parties to the agreement).

On 7 March 2012, the ACCC decided to grant access providers of the WDSL service (other than Telstra) an extension to lodge access agreements relating to the WDSL service, made or varied from 1 January 2011. This extension will expire 6 months after the date on which the ACCC makes an access determination that a carrier or carriage service provider (other than Telstra) is required to comply with any or all of the standard access obligations as defined in section 152AR of the CCA. An open letter to access providers regarding the extension is attached:

Lodgment of access agreements (s.152BEA and s.152BEB)