The ACCC has today published NBN Co’s proposed variation to its Special Access Undertaking, which is a key part of the regulation of the NBN. It sets the maximum prices and terms and conditions for broadband providers to access the NBN until 2040.
The ACCC has released an accompanying consultation paper on the proposed variation and invites submissions from interested parties.
“The Special Access Undertaking exists to promote competition and efficiency in Australia’s broadband market, to the benefit of households and businesses,” ACCC Commissioner Anna Brakey said.
“The variation will influence the price, quality and range of broadband offers in the market for the next two decades. Before we decide whether to accept NBN Co’s proposed variation, we are conducting a public consultation to hear from the retailers who sell NBN services, other service providers, and households and businesses that rely on the NBN for their broadband.”
The variation published today seeks to incorporate fibre-to-the-node and other copper-based technologies in the Special Access Undertaking, to create a single regulatory framework that covers all network technologies.
The variation also proposes significant changes to product and pricing commitments, the framework for NBN Co’s cost recovery, and rules for how the ACCC assesses network expenditure.
The ACCC has published the full variation for consultation and one set of supporting materials provided by NBN Co with a small number of redactions that the ACCC has accepted. Further supporting materials are to be published as soon as practicable. This is to ensure a transparent and effective public consultation process.
The ACCC invites feedback from interested parties on the proposed variation by 8 July 2022.
The SAU variation and related documents are available at NBN Co SAU variation 2022
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 (SAU) currently in operation. The ACCC must then decide whether to accept or reject the SAU variation, 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 SAU and invite and consider submissions on it.
The current SAU 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 SAU 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 assets. Extending the SAU to cover the other technologies would bring the majority of NBN assets into this regulatory framework.
The ACCC convened an industry workshop in June 2021 to help inform NBN Co’s development of a revised special access undertaking that applies to all of the network technologies.
Working groups run by the ACCC in the second half of 2021 provided NBN Co, access seekers, retail service providers and other interested stakeholders the opportunity to share their ideas as the proposed SAU variation was under development.
The ACCC must assess any application for a variation to the SAU in accordance with the statutory criteria in Part XIC of the CCA. The ACCC must either accept or reject the SAU variation based on this assessment.