The ACCC’s formal consultation on NBN Co’s proposed variation to its Special Access Undertaking has been delayed to provide NBN Co time to address practical issues with the release of information it claims is commercially sensitive.
The proposed variation to the undertaking follows a series of industry working group meetings run by the ACCC in the second half of 2021 that identified a range of issues with the regulation under the current undertaking, and discussed alternative proposals.
NBN Co provided the ACCC with its proposed variation to the undertaking on 29 March 2022. The proposed variation to the undertaking is a key part of the future regulation of the NBN. It sets the terms and conditions for internet providers to access the NBN until 2040, including arrangements for setting maximum prices.
NBN Co submitted a version of the proposed variation for publication in which information it considers to be commercially sensitive was redacted. However, it is essential for there to be a fully transparent and effective public consultation process, and this requires release of the proposed variation in full.
“The ACCC is required by legislation to publish and consult on the variation to the undertaking in full, and proposes to do so as soon as is practical to allow third parties to fully engage in a meaningful consultation process,” ACCC Commissioner Anna Brakey said.
The ACCC will publish the full variation, without redactions, no later than 23 May 2022.
NBN Co’s services are taken to be declared under Part XIC of the Competition and Consumer Act 2010 (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: fibre-to-the-premise, fixed wireless and satellite.
A stakeholder roundtable to discuss the SAU review was convened in June 2021. The working groups that followed this were chaired by ACCC Commissioners and attended by representatives of NBN Co, broadband retailers, consumer representatives, and government bodies.
They met 17 times to discuss current and emerging issues under the existing regulatory framework, and to consider specific options to address these in a way that would promote the long-term interests of end-users.
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.