The Australian Competition and Consumer Commission has today issued a draft decision to reject NBN Co’s proposed variation to its Special Access Undertaking (SAU) to incorporate new technologies such as fibre-to-the-node (FTTN), fibre-to-the-building (FTTB) and hybrid fibre coaxial (HFC).  

NBN Co’s SAU is a key part of the framework for regulating prices and a range of non-price matters relating to NBN Co’s supply of wholesale services until 2040. The current version of the SAU, which the ACCC accepted in 2013, only covers fibre-to-the-premises (FTTP), fixed wireless, and satellite technologies.

“Most of the changes proposed by NBN Co would remain in effect until the end of the SAU term in 2040. We need to be satisfied that the proposed changes are reasonable and in the long-term interests of end-users now, and will remain so over the term of the SAU,” ACCC chairman Rod Sims said.

“While the ACCC agrees with the overall approach that NBN Co has taken to incorporate the additional technologies into the SAU, it has concerns about some of the specific terms and conditions that NBN Co proposes to vary.”

“As the ACCC can only accept or reject an SAU variation, our concerns mean that our draft decision is to reject the variation. However, we have provided clear guidance in the draft decision on how NBN Co can address these concerns and introduce these new technologies into the SAU,” Mr Sims said.

The ACCC is also seeking further views around the SAU pricing provisions that would apply to NBN services provided over these additional technologies. The ACCC notes that the application of the price terms was not raised in its previous consultation paper on the SAU variation. The ACCC is therefore consulting specifically on its assessment of the price terms and conditions to ensure that all stakeholders have an opportunity to comment.

The ACCC will also consult further on proposed changes to NBN Co’s rollout information commitments. The ACCC is aware that NBN Co has recently implemented measures to increase the information it makes available to access seekers and the public.

The closing date for submissions on the draft decision is 21 April 2017.

The draft decision is available: NBN Co SAU variation draft decision.


The ACCC must consider NBN Co’s proposed SAU variation in accordance with the criteria set out in Part XIC of the Competition and Consumer Act 2010 (CCA). Broadly, the ACCC must not accept the variation unless it is satisfied that the varied SAU terms would promote the long-term interests of end-users and are reasonable.

The ACCC’s concerns relate to three matters:

  • changes to service definitions that would allow future technologies introduced by NBN Co to be covered by the SAU without a further SAU variation,
  • removing the definition ‘network boundary point’ from service definitions,
  • locking in provisions relating to ‘co-existence’ and ‘remediation’ for FTTN and FTTB services, which would allow NBN Co to provide services at lower data rates in certain circumstance, for the remainder of the SAU term.

NBN Co submitted its proposed SAU variation to the ACCC in May 2016. This is the first time NBN Co has applied to vary its SAU.

The ACCC has been liaising with NBN Co about its concerns as the ACCC can only accept or reject the proposed SAU variation. Neither the ACCC nor NBN Co can vary the SAU after it has been submitted to the ACCC for consideration. If NBN Co submits a new variation to its SAU, the ACCC will be required to consult further with stakeholders.