The ACCC has today published NBN Co’s revised proposed variation to its Special Access Undertaking and the material that NBN Co has so far provided in support of its proposal.
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.
In July this year, NBN Co withdrew its previous proposal and notified industry, Government and the ACCC that it would develop a revised variation.
When the ACCC receives the remainder of NBN Co’s supporting material, it will confirm that material meets the ACCC’s disclosure requirements. The remaining documents will then be published at NBN Co SAU variation 2022.
The ACCC will issue a public statement when it publishes its consultation paper in relation to NBN Co’s proposal, likely in early 2023.
“We’ve published NBN Co’s revised variation proposal today in the interest of transparency, so interested parties can begin scrutinising it ahead of the remainder of NBN Co’s supporting materials becoming available,” ACCC Commissioner Anna Brakey said.
“The Special Access Undertaking is a critical piece of regulation which exists to promote competition and efficiency in Australia’s broadband market, so consumers and businesses have access to a wide range of broadband speed tiers and prices.”
“It is too early to comment on the substance of this revised proposal, but we will develop views to test with stakeholders when we release our consultation paper,” Ms Brakey said.
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 services. Extending the SAU to cover the other technologies would bring all NBN services into any revised regulatory framework.
This latest variation proposal follows extensive engagement with industry and other stakeholder groups, including via working groups and forums conducted by the ACCC in 2021 and 2022. It also follows written submissions to the ACCC on NBN Co’s previous variation proposal in May 2022, and in response to a consultation paper that NBN Co issued in August 2022.
In December 2021, the ACCC published a report summarising matters arising from the 2021 working groups. The report identified the following broad outcomes to help guide the development of an SAU variation:
- Protection of consumers from future price shocks and from prices that are higher than necessary in later years
- Incentives on NBN Co to operate efficiently and promote the use of the NBN
- More cost certainty for broadband retailers that supply customers using the NBN
- A clear and robust service quality framework to ensure retailers and consumers know what to expect from NBN services
- The opportunity for NBN Co to earn the minimum revenue it needs to meet its legitimate financing objectives, including transitioning to an investment grade credit rating.
In considering the latest variation proposal, the ACCC will assess the variation in accordance with the statutory test and take into account any issues raised by stakeholders during consultation.
Summary of timeline:
- NBN Co lodged an SAU variation with the ACCC on 29 March 2022
- The ACCC published the variation and an accompanying consultation paper on 23 May 2022
- On 27 July 2022, NBN Co’s shareholder ministers wrote to it, and the Minister for Communications wrote to the ACCC, regarding the SAU variation that NBN Co had proposed
- On the same day, NBN Co formally withdrew its proposed variation to the SAU
- On 28 July 2022, the ACCC published the submissions that it had received on NBN Co’s proposed SAU variation
- On 18-19 August 2022, the ACCC convened a stakeholder forum to discuss the regulatory framework to apply under a varied SAU
- On 29 November 2022, NBN Co lodged its revised SAU variation and partial supporting submission with the ACCC.