NBN Co Limited - Revocation and Substitution - A91479 - A91481

On 12 February 2015 NBN Co Limited lodged an application to revoke authorisations A91290 - A91292 and to grant a new authorisation to make and give effect to revised agreements with Optus concerning its HFC network. The ACCC granted authorisation to NBN Co in 2012 for the original agreement between NBN Co and Optus, which involved Optus migrating its customers to the NBN and ultimately decommissioning its HFC network.

Broadly, aspects of the Amended and Restated Opus HFC Subscriber Agreement for which -authorisation is now sought include:
o Optus to progressively migrate HFC customers to the NBN as it is rolled out
o an obligation on Optus to use the NBN for residential and small business customers served by the Optus HFC network
o NBN Co to make instalment payments to Optus based on the actual number of subscribers who are migrated to the NBN from the Optus HFC network by any retail service provider
o Optus to cease supplying HFC services to new HFC subscribers in a relevant NBN Serving Area after the Migration State Date and cease supplying any HFC services direct to customers in NBN Serving Areas eighteen months after the Migration Start Date
o Optus to decommission or deactivate its HFC network in NBN Serving Areas eighteen months after the Migration Start Date
o restrictions on Optus from extending the geographic coverage of its HFC network, unless otherwise agreed
o restrictions on Optus grating any right or interest or permit any person to use, operate or provide any service over the HFC network in an HFC Serving Area after deactivation and Optus to ensure that no person can use the HFC network to provide services in Australia and
o restrictions on Optus from disposing of the HFC assets to any third party other than the NBN Co without NBN Co's prior written consent and
o certain preparatory works in advance of the transfer of HFC assets to NBN Co.

Aspects of the Capacity Sharing Agreement for which authorisation is sought include the exclusive grant of access to spectrum to NBN Co for the supply of HFC services to wholesale customers.

Aspects of the Indefeasible Rights of Use Deed for which authorisation is sought include granting exclusive rights to NBN Co for the use of dark fibre cores serving the coaxial cable access network elements acquired by NBN Co.

On 28 August 2015 the ACCC issued a determination granting authorisation to NBN Co for the revised arrangements for 35 years.