The ACCC is inviting submissions from the telecommunications industry, consumer groups and other interested parties on NBN Co’s revised Special Access Undertaking (SAU) variation proposal, in a consultation paper published today.
NBN Co submitted the revised variation to the ACCC last week. If accepted, it will set the rules for broadband providers to access the NBN over the coming decades, including wholesale price controls and minimum service standards.
“Our preliminary view is that NBN Co’s revised variation is a material improvement on its previous proposal,” ACCC Commissioner Anna Brakey said.
“The revised variation appears to address the concerns that led us to make a draft decision to reject the previous proposal. It also appears to respond appropriately to the further issues that have arisen in recent months.”
Before coming to a final decision, the ACCC will assess the revised variation against the statutory criteria and consider whether it is likely to promote the long-term interests of Australian consumers and businesses. The ACCC will also consider stakeholder submissions.
“We are providing stakeholders with an opportunity to raise any new or residual issues that they would like us to consider in making our decision on whether to accept or reject this latest variation proposal,” Ms Brakey said.
In its final assessment, the ACCC will consider submissions made in response to NBN Co’s two previous SAU proposals alongside submissions to today’s consultation paper.
“We recognise this has been a drawn-out process, with NBN submitting and withdrawing two previous proposals, and we thank industry for their constructive engagement. We remain committed to reaching a timely resolution for the SAU so that new commercial arrangements can take effect in a timely manner,” Ms Brakey said.
The ACCC invites interested parties to provide feedback on the proposed variation by 13 September 2023.
The revised variation and related documents are available at NBN Co SAU Variation (August 2023)
Background
NBN Co’s services are taken to be declared under Part XIC of the Competition and Consumer Act (CCA), which enables the ACCC to regulate the terms and conditions of access, such as price, to apply where the terms of access cannot be agreed.
The CCA allows NBN Co to submit to the ACCC a variation to a Special Access Undertaking which is currently in operation. The ACCC must then decide whether to accept or reject the variation to the undertaking, in accordance with criteria set out in section 152CBD(2) of the CCA.
The CCA requires the ACCC to publish a proposed variation to an undertaking and invite and consider submissions on it.
NBN Co’s current SAU provides a long-term regulatory framework for the supply of NBN Co’s services. It has been in place since 2013 and is scheduled to operate until 2040.
However, the current SAU only applies to a subset of network technologies, namely fibre-to-the-premises, fixed wireless and satellite. This accounts for approximately one quarter of NBN’s services assets. Extending the undertaking to cover the other technologies would bring the majority of NBN assets into this regulatory framework.
In March 2022, NBN Co proposed a variation to its SAU following extensive pre-lodgement engagement with its customers and other stakeholders that the ACCC facilitated. NBN Co withdrew this proposal in July 2022.
NBN Co lodged a revised SAU variation proposal in November 2022. In May 2023, the ACCC published a draft decision to reject NBN Co’s November 2022 proposal.
In August 2023, NBN Co lodged a revised SAU variation proposal which the ACCC is now consulting on.
The ACCC must either accept or reject the variation to the undertaking. The ACCC must not accept a proposal to vary an undertaking unless it is satisfied that it meets the statutory criteria, which includes assessing whether certain aspects will promote the long-term interests of end users, and whether the terms and conditions are reasonable.
If accepted before 22 December 2023, under the proposed variation to the undertaking the transition to the new pricing arrangements would commence by three months after acceptance. However, the period between 23 December 2023 and 14 January (inclusive) would not count towards the calculation of that three month period.