The ACCC has today published the submissions received about NBN Co's proposed variation to its Special Access Undertaking.
The Special Access Undertaking is a key part of the regulation of the NBN. It sets the rules for broadband providers to access the NBN over the coming decades, which can include minimum service standards and wholesale price controls.
Submissions addressing the issues outlined in the ACCC's consultation paper were received from NBN Co, various retail service providers and industry and consumer representatives.
"The ACCC is publishing all of the submissions promptly after receiving them so that stakeholders have transparency of the issues that have been raised for consideration, as we move quickly towards a draft decision in April on this important regulatory outcome," ACCC Commissioner Anna Brakey said.
NBN Co has indicated in its submission that it is considering possible changes to its variation proposal to address issues that have been raised during the consultation period.
If this occurred and NBN Co decided to withdraw its current proposal, the ACCC would seek to efficiently accommodate any revised variation proposal, based on ongoing support and engagement from all stakeholders.
"The ACCC recognises the importance of getting the right regulatory setting in place for the NBN in a timely manner, and appreciates the constructive engagement of all parties in the process so far," Ms Brakey said.
"We will notify parties of any updated timelines once NBN Co's intentions become clear and it has provided all relevant information. We will consult with stakeholders on any potential further variation promptly, with a view to making a final decision as soon as practicable, while affording procedural fairness to all parties."
The submissions received as part of the recent consultation on the proposed variation can be found at NBN Co SAU variation (November 2022).
Background
NBN Co's services are taken to be declared under Part XIC of the Competition and Consumer Act (CCA), which enables the ACCC to regulate the terms and conditions of access, such as price, to apply where the terms of access cannot be agreed.
The CCA allows NBN Co to submit to the ACCC a variation to a Special Access Undertaking which is currently in operation. The ACCC must then decide whether to accept or reject the variation to the undertaking, in accordance with criteria set out in section 152CBD(2) of the CCA.
The CCA requires the ACCC to publish a proposed variation to an undertaking and invite and consider submissions on it.
The current undertaking provides a long-term regulatory framework for the supply of NBN Co's services. It has been in place since 2013 and is scheduled to operate until 2040. However, the current undertaking only applies to a subset of network technologies, namely fibre-to-the-premises, fixed wireless and satellite. This accounts for approximately one quarter of NBN's services assets. Extending the undertaking to cover the other technologies would bring the majority of NBN assets into this regulatory framework.
In March 2022, NBN Co proposed a variation to its undertaking following extensive pre-lodgement engagement with its customers and other stakeholders that the ACCC facilitated. NBN Co withdrew this proposal in July 2022.
Since that time the ACCC has helped to facilitate NBN Co's consideration of a revised proposal, including by convening an additional industry forum in August 2022. NBN Co lodged its revised Special Access Undertaking variation in November 2022.
The ACCC must either accept or reject the variation to the undertaking. The ACCC must not accept a proposal to vary an undertaking unless it is satisfied that it meets the statutory criteria, which includes assessing whether certain aspects will promote the long-term interests of end users, and whether the terms and conditions are reasonable.
If accepted, the transition to the new pricing arrangements under the variation to the undertaking would commence by the later of 1 July 2023 or three months after acceptance.
