NBN Co has withdrawn its proposed November 2022 variation to its Special Access Undertaking (SAU) and simultaneously submitted a revised variation proposal to the ACCC. The ACCC has today published NBN Co’s revised SAU variation proposal along with the material submitted by NBN Co in support of its proposal.
The SAU is a key part of the NBN’s regulatory framework. It sets the rules for broadband providers to access the NBN over the coming decades, which can include wholesale price controls and minimum service standards. The SAU variation cannot take effect unless the ACCC is satisfied that it meets the statutory criteria.
NBN’s latest submission follows the ACCC’s draft decision in May to reject NBN Co’s November 2022 proposed variation. Since May’s draft decision, the ACCC has facilitated consultation between industry and NBN Co to assist NBN Co to consider the content of any revised variation proposal.
The proposed variation is subject to a further consultation period and assessment against the statutory criteria.
"The ACCC understands that the industry is seeking a timely resolution to the SAU process. We are looking to lighten the burden on stakeholders by considering submissions made in response to NBN’s two previous SAU proposals in our assessment of the latest proposal against the statutory criteria. This will allow stakeholders to focus on new or residual issues," Ms Brakey said.
The ACCC will publish a consultation paper for the revised variation next week. The consultation period will run for four weeks from today, closing on 13 September.
"While allowing time to undertake genuine consultation we are seeking to expedite the remainder of this process to allow the industry to adopt the new arrangements in a timely manner," Ms Brakey said.
"We recognise this process has extended over several years and see today as a significant milestone towards achieving a robust and effective regulatory framework for the NBN that will last well into the future."
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.
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 the transition to the new pricing arrangements under the variation to the undertaking 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 3 month period.