Telstra Corporation Limited

The Australian Competition and Consumer Commission (ACCC) has accepted a court enforceable undertaking from Telstra Corporation Limited (Telstra) in relation to Telstra’s decision to register with the Australian Communications and Media Authority (ACMA) 315 radiocommunications sites in the 900 MHz spectrum band on 31 January 2022.

The ACCC was concerned that the decision was made for the substantial purpose or had the likely effect of hindering Singtel Optus Pty Limited (Optus) in rolling out its 5G network.

Under the early access regime administered by the ACMA, following the outcome of the 850/900 MHz auction in December 2021, successful bidders could request early access to the spectrum they had purchased. An early access apparatus licence could only be issued if the ACMA was satisfied that it would not interfere with sites registered by existing licensees. At the 850/900 MHz auction, Optus acquired a licence to all of the 900 MHz band spectrum to commence on 1 July 2024.

Telstra holds a licence for parts of the 900 MHz band until its expiry on 30 June 2024. Before 31 January 2022, Telstra had 109 sites registered on the 900 MHz band spectrum and had not registered a site since 2016. After Telstra became aware of Optus’ intention to apply for early access, Telstra decided to register the 315 sites, in metropolitan and regional areas.

Of the sites registered on 31 January 2022, Telstra later deregistered 153, and 162 remain registered. Since January, Telstra has only used a limited number of these sites, to deploy 3G services

The court-enforceable undertaking will promote competition and consumer choice for 5G services, including in metropolitan and regional Australia.

The undertaking provides a mechanism for Telstra to deregister certain sites that were registered on 31 January 2022 and still remain registered as at the date of the undertaking. This will facilitate Optus’ ability to apply to the ACMA for early access to 900 MHz spectrum to roll out its 5G network more broadly, opening a significant potential opportunity for consumers to have more choice in mobile services.

Specifically, an independent accredited person will be appointed to assess interference issues between the sites registered by Telstra on 31 January 2022 and those necessary for Optus’ 5G rollout. The independent accredited person will then direct Telstra to deregister certain interfering sites, having regard to sites that Optus proposes to use for 5G in the four months after notification to the independent accredited person.

The undertaking only addresses the registration of sites by Telstra on 31 January 2022 and does not supersede or otherwise interfere with the existing ACMA licensing regime.

Telstra further undertakes that certain Telstra executives, including but not limited to the Telstra Board, the CEO, members of the CEO leadership team, and staff responsible for Telstra’s spectrum strategy, complete practical compliance training on the competition law in Part IV of the Competition and Consumer Act 2010 (Cth) (CCA).

Novation 

The Australian Competition and Consumer Commission entered into a Deed of Novation dated 19 December 2022 with Telstra Limited ACN 086 174 781 and Telstra Corporation Limited ACN 051 775 556 (Deed). 

The effect of the Deed is to substitute Telstra Corporation Limited with Telstra Limited as the appropriate corporate entity subject to the terms of the court enforceable undertaking accepted by the Commission from Telstra Corporation Limited dated 3 August 2022.  This follows a business restructure by Telstra which was completed on 1 January 2023.