nbn co Limited & Ors

On 30 March 2020 NBN Co Limited, on behalf of itself and members of a Special Working Group, lodged an application for authorisation, including requesting urgent interim authorisation, to enable the group to work on contingency planning in response to the COVID-19 pandemic.  More specifically, NBN Co sought authorisation for the Special Working Group to discuss, agree and implement:

• economic stress alleviation measures, such as a coordinated industry approach to support for businesses (especially small businesses) and vulnerable or other consumers adversely impacted by the COVID-19 pandemic (hardship measures) and
• a series of capacity optimisation strategies to help ensure the continued operation and optimisation of Australia's telecommunications networks during the COVID-19 pandemic (capacity optimisation strategies). 

NBN Co was directed to form and lead the Special Working Group, in the national interest, by the Minister for Communications, Cyber Safety and the Arts on 18 March 2020.  The Special Working Group currently comprises Telstra, Optus, TPG/Vodafone, Vocus and Aussie Broadband.

Authorisation is also sought on behalf of other retail service providers or sector participants that join the Special Working Group, or otherwise participate in the Proposed Conduct, in the future.  NBN Co has committed to notify the ACCC of future participants.

On 31 March 2020 the ACCC granted urgent interim authorisation to the Proposed Conduct, subject to certain reporting obligations which require NBN Co to report to the ACCC on a timely basis about any material decisions the Special Working Group makes, and to other service providers affected by those decisions.

On 26 June and 16 July 2020, NBN Co amended its application for authorisation to narrow the scope of the proposed conduct and requested a corresponding narrowing of the conduct permitted under the conditional interim authorisation dated 31 March 2020.  Under its amended application, NBN Co seeks authorisation for the Special Working Group to discuss, agree and implement between them or, engage in any conduct, relating to the National Broadband Network, which has the purpose of:

(a)sharing of information and resources regarding, or to manage and replace inputs impacting, the availability of Australia's telecommunications services;

(b)implementing of network resiliency, supply and demand and congestion management strategies designed to help support data transmission internet access and voice services across Australia,

(c) sharing generic and usage information, and future demand forecasts relating to (a) and (b) above; and

(d)logistics information relating to (a) and (b) above,

provided that any conduct described above must occur at, in preparation for, or arise out of, meetings of the Special Working Group (the Proposed Conduct).

On 23 July 2020, the ACCC decided to revoke the conditional interim authorisation dated 31 March 2020, and grant a replacement conditional interim authorisation for the Proposed Conduct, solely for the purpose of dealing with the effect of the COVID-19 pandemic on the National Broadband Network.  The new interim authorisation is granted subject to NBN Co complying with certain (broader) reporting obligations to provide sufficient transparency over the various agreements reached, strategies implemented and information shared under the Proposed Conduct.

On 5 August 2020, the ACCC issued a draft determination proposing to grant conditional authorisation to the Proposed Conduct on the same terms as the replacement interim authorisation.  Authorisation was proposed until 31 January 2020. 

Following the draft determination, NBN Co requested authorisation until 31 March 2021, due to the ongoing uncertainty of the COVID-19 pandemic in Victoria. 

On 10 September 2020, the ACCC issued a final determination granting conditional authorisation to the Proposed Conduct until 31 March 2021.   Authorisation is subject to NBN Co complying with the same reporting obligations as set out in the draft determination. 

The ACCC’s final determination can be found under the Decisions heading below.

The conditional interim authorisation granted on 23 July 2020 remains in place until this determination comes into effect.   If no application for review of the determination is made to the Australian Competition Tribunal, the authorisation will come into effect on 2 October 2020.