On 3 March 2021, the ACCC issued the following determinations:
- Telecommunications (Permitted Information Sharing for Standard Functional Separation Undertakings) Determination 2021
- Telecommunications (Deemed Functional Separation Undertaking) Amendment Determination 2021 (No.1)
These determinations specify the kinds of information provided by a carrier or carriage service provider to a corporation’s retail business unit that may be disclosed to, or obtained, accessed or used by that corporation’s wholesale business unit bound by the same standard or deemed functional separation undertaking.
The Telecommunications Act 1997 (the Act) prohibits information provided by carriers and carriage service providers to a retail service provider from being disclosed to, or obtained, accessed or used by, a wholesale infrastructure provider bound by the same functional separation undertaking, unless otherwise determined by the ACCC by legislative instrument.
Part 8 of the Act specifies three different kinds of functional separation undertakings:
- Standard functional separation undertaking (s.151A): A customised undertaking given to the ACCC for approval on behalf of one corporation.
- Deemed functional separation undertaking (s.151B): A set of model terms for a standard functional separation undertaking determined by the ACCC that an eligible corporation can elect to be bound by, instead of submitting its own customised undertaking.
- Joint functional separation undertaking (s.151C): A customised undertaking given to the ACCC for approval on behalf of two or more corporations.
On 16 October 2020, the ACCC issued the Telecommunications (Deemed Functional Separation Undertaking) Determination 2020. Section 9 of the determination specifies exceptions to the information sharing restrictions that apply to corporations that have elected to be bound by the deemed functional separation undertaking.
On 18 December 2020, the ACCC issued the Telecommunications (Permitted Information Sharing for Joint Functional Separation Undertakings) Determination 2020. This determination applies only to parties subject to a joint functional separation undertaking and includes a broader range of information permitted to be shared.
More information about both of these determinations is available at: Carrier separation rules
To ensure regulatory consistency, the ACCC has aligned the permitted information sharing provisions across all forms of functional separation undertakings, by:
- amending the Telecommunications (Deemed Functional Separation Undertaking) Determination 2020 to to duplicate the kinds of information specified in section 6 of the Telecommunications (Permitted Information Sharing for Joint Functional Separation Undertakings) Determination 2020
- making a similar determination in relation to standard functional separation undertakings.
Prior to issuing these instruments, the ACCC posted a consultation notice on its website on 18 December 2020 inviting interested stakeholders to make submissions by 5 February 2021. The ACCC did not receive any submissions to the consultation notice.