NBN Co Limited - variation - s87B Undertaking

Company or individual details

  • NBN Co Limited


On 8 October 2019,  the Australian Competition and Consumer Commission (ACCC) accepted a court enforceable undertaking from NBN Co Limited (NBN Co) in relation to its conduct in supplying wholesale business grade services and related activities. The ACCC is satisfied that NBN Co has engaged in conduct that contravened its non-discrimination obligations under 152AXD of the Competition and Consumer Act 2010 (Cth) (CCA).

NBN Co is an Australian Government-owned corporation responsible for designing, building and operating the National Broadband Network (NBN). NBN Co is a carrier and an NBN corporation for the purposes of Part XIC of the CCA.

This undertaking concerns NBN Co’s conduct in supplying wholesale business grade products and services (NBN Business Services). These services include the design and installation of fibre infrastructure, which supports the supply of business grade carriage services. These comprise Ethernet TC-2 service (a symmetrical broadband services that can be used for multiple phone lines and/or a data services) and NBN Co’s new, higher-grade Enterprise Ethernet service, which provides gigabit (very high speed) data services. 

On the same day, the ACCC issued a formal warning to NBN Co under section 103(4) of the Telecommunications Act 1997 (Cth) relating to NBN Co’s supply of NBN Business Services. The formal warning describes matters that the ACCC is satisfied constitute failures by NBN Co to comply with the non-discrimination obligations under section 152AXD of the CCA, and consequently contravene the service provider rule set out in subsection 152BA(2) of the CCA. 

To address the ACCC’s concerns, NBN Co has given the ACCC an undertaking pursuant to section 87B of the CCA under which, among other things, it:

  • admits that it did not have appropriate processes in place to ensure compliance with its transparency and non-discrimination obligations;
  • commits to offering consistent contract terms to all access seekers for the supply of upgraded NBN infrastructure;
  • commits to giving the same information to all access seekers at the same time in relation to the supply of NBN Business Services; and
  • commits to implementing extensive compliance processes and an external audit program of its compliance with the non-discrimination obligations.

First variation to the Undertaking

On 17 December 2020, the ACCC accepted a variation to the section 87B Undertaking given to the ACCC by NBN Co. The purpose of this Variation to the Undertaking is to clarify the continued application of the Undertaking in light of recent and potential changes to NBN Co’s organisational structure.

Second variation to the Undertaking

On 1 July 2022, the ACCC accepted a second variation to the section 87B Undertaking given to the ACCC by NBN Co. The purpose of the Second Variation to the Undertaking is to facilitate changes to NBN Co’s commercial deal constructs, and NBN Co’s internal and commercial processes, in connection with build activities.