Superfast broadband network class exemption & deemed functional separation undertaking

Project overview

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The Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 (TLA Act) received Royal Assent on 25 May 2020. Among other provisions, it amends the Telecommunications Act 1997 (Cth) (Telecommunications Act) to enable superfast fixed line broadband networks serving residential customers to operate on a functionally separated basis (rather than a structurally separated basis).

In particular, the TLA Act inserts a process into Part 8 of the Telecommunications Act, under which network operators will be able to voluntarily submit functional separation undertakings to the ACCC for approval. This is intended to provide greater commercial flexibility for superfast network operators and promote infrastructure-based competition.

In addition, the ACCC is empowered to determine a deemed functional separation undertaking that an eligible corporation can choose to be bound by instead of submitting its own customised voluntary undertaking.

The ACCC may also make determinations exempting small network operators from the requirement to operate on a wholesale-only basis. However, any such exemption does not remove the requirement for these operators to offer access to a wholesale service on non-discriminatory terms.

These new laws took effect on 25 August 2020, which was the day after the end of the period of three months beginning on the date the TLA Act received Royal Assent.

Consultation

On 5 June 2020 the ACCC issued a consultation paper on the draft class exemption instrument (including a draft instrument) and the issues relevant to the making of deemed undertakings for stakeholder feedback. Submissions closed Friday 17 July 2020.

On 25 August 2020, the ACCC issued a consultation paper seeking stakeholder views on a draft deemed functional separation undertaking instrument including the proposed class of corporations to which it should apply. Submissions closed Tuesday 15 September 2020.

The ACCC also issued a final class exemption instrument and accompanying explanatory statement on 25 August 2020.

On 16 October 2020, the ACCC issued a final deemed functional separation undertaking instrument and accompanying explanatory statement.

Class exemption amendment determination

On 21 January 2021, the ACCC issued the Telecommunications (Superfast Broadband Network Class Exemption) Amendment Determination 2021 (No. 1). This instrument amends the class exemption such that it ceases to operate five years after its commencement.

Deemed functional separation undertaking amendment determination

On 3 March 2021, the ACCC issued the Telecommunications (Deemed Functional Separation Undertaking) Amendment Determination 2021 (No.1) to amend the permitted information sharing provisions specified in the deemed functional separation undertaking.

More information about the amendment is available at: Further consultation on permitted information sharing

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