Telstra and AAPT advocate flexibility in NBN Co wholesale contracts: Optus says no

Stuart Corner
Wednesday, 10 August 2011 14:35

IT Policy - Regulation

Both Telstra and AAPT are calling for NBN Co to be given some flexibility in the terms and conditions of its contracts with its wholesale customers. In contract, Optus says no discrimination should be permitted.

The Competition and Consumer Act 2010 (CCA) includes new provisions that prohibit (subject to limited exceptions) NBN Co and other providers of layer 2 bitstream services over designated superfast telecommunications networks from discriminating between access seekers.

Under s152CJH of the CCA, the ACCC is required to prepare and publish on its web site explanatory material relating to these non-discrimination provisions and last month the ACCC released an issues paper to seek input on the planned explanatory material.

Submissions to the issues paper were due by 8 August and were received from Telstra, Optus and AAPT. The ACCC expects to release final explanatory material in late 2011.

In its submission Telstra claims that a strict interpretation of the non-discrimination provisions would cause significant practical and commercial problems for the industry. Telstra says it "considers that a workable interpretation of the legislation must permit some differences in the treatment of access seekers by NBN Co and superfast network providers," and that it would be "helpful for the ACCC to provide guidance as to the parameters of any permissible differentiation."

It also wants this uncertainty to be resolved as soon as possible, saying: "Industry is presently engaged in consultations regarding the content of the Wholesale Broadband Agreement (WBA) that will apply between NBN Co and its customers. Uncertainty over the interpretation of NBN Co's non-discrimination obligations is causing those negotiations to proceed on conservative assumptions.

"Further, the WBA anticipates that access agreements, once in force, will be subject to changes from time to time to ensure consistency with NBN Co's non-discrimination obligations. Without knowing how such obligations will be interpreted, it is not possible to understand the extent to which agreements with NBN Co might be altered by subsequent arrangements that NBN Co makes with other parties. This is a source of significant commercial risk."

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