C ORRS C HAMBERS W ESTGARTH L A W Y E R S Telecommunications Telecommunications: The Facilities Access Regimes and the Roles of the ACCC and the ACA Helen Wills

C ORRS C HAMBERS W ESTGARTH Telecommunications Overview Telecommunications Act 1997 Access Regimes for: supplementary facilities transmission towers, tower sites and underground facilities Roles of the ACCC and the ACA Latest Developments

C ORRS C HAMBERS W ESTGARTH Telecommunications Telecommunications Act 1997 Part of substantial legislative package Established a new regulatory framework Opened the market to competition in telecommunications infrastructure and services Established a number of regimes to enable access to existing and future infrastructure and services

C ORRS C HAMBERS W ESTGARTH Telecommunications Basic Carrier Obligations Imposed by the Telecommunications Act on licensed carriers Consumer and community obligations Obligations to promote competition in telecommunications Requirement to comply with the Act including the Schedule 1 Standard Carrier Licence Conditions

C ORRS C HAMBERS W ESTGARTH Telecommunications Access to Supplementary Facilities Standard Carrier Licence Condition Obligation on a carrier to provide other carriers with access to supplementary facilities it owns or operates broad definition of “supplementary facility” “telecommunications network” “own or operate” requirement

C ORRS C HAMBERS W ESTGARTH Telecommunications Access to Supplementary Facilities Requirements for Valid Access Request sole purpose to enable access seeker to provide competitive facilities and services request is reasonable access seeker gives reasonable notice facilities, other than customer cabling or customer equipment, installed before 30 June 1991 or obtained after then other than by means of commercial negotiation

C ORRS C HAMBERS W ESTGARTH Telecommunications Access to Supplementary Facilities Reasonable Request long-term interests of end-users Part XIC of the Trade Practices Act and access objectives competition connectivity use of / investment in infrastructure ACCC understanding and role

C ORRS C HAMBERS W ESTGARTH Telecommunications Access to Supplementary Facilities Terms and Conditions of Access carriers expected to agree ACCC arbitration Enforcement: ACCC responsible for regime breach of licence condition ACCC action

C ORRS C HAMBERS W ESTGARTH Telecommunications Access to Towers, Tower Sites and Underground Facilities Standard Carrier Licence Condition Obligation on a carrier to provide other carriers with access to towers, tower sites and underground facilities it owns or operates “telecommunications transmission tower” “eligible underground facility” “giving access” to a tower

C ORRS C HAMBERS W ESTGARTH Telecommunications Access to Towers, Tower Sites and Underground Facilities Requirements for Valid Access Request Tower or tower site - sole purpose to enable access seeker to install a facility for use in the supply of a radio- communications carriage service Underground facility - sole purpose to enable access seeker to install a line to supply a carriage service access seeker gives reasonable notice technically feasible

C ORRS C HAMBERS W ESTGARTH Telecommunications Access to Towers, Tower Sites and Underground Facilities Reasonable Notice individual circumstances sufficient time to enable carrier to make arrangements to facilitate access

C ORRS C HAMBERS W ESTGARTH Telecommunications Access to Towers, Tower Sites and Underground Facilities Technical Feasibility ACA certificate application process matters relevant to technical feasibility: technical or engineering difficulties health and safety issues practical means of avoidance other relevant matters

C ORRS C HAMBERS W ESTGARTH Telecommunications Access to Towers, Tower Sites and Underground Facilities Terms and Conditions of Access carriers expected to agree ACCC arbitration ACCC Facilities Access Code: ACCC rationale for Code administrative and operational procedures

C ORRS C HAMBERS W ESTGARTH Telecommunications Access to Towers, Tower Sites and Underground Facilities Sharing Towers, Tower Sites and Underground Facilities carriers to co-operate to share facilities when planning future services ACA thinks carriers should make reasonable attempt to notify other carriers that may wish to share facilities before establishing own

C ORRS C HAMBERS W ESTGARTH Telecommunications Access to Towers, Tower Sites and Underground Facilities Enforcement ACA responsible for regime breach of licence condition ACA action

C ORRS C HAMBERS W ESTGARTH Telecommunications Access Strategies Likely Strategies to Delay Access relying on exemptions (eg: not technically feasible) onerous price and non-price terms in proposed access agreements claiming expected future requirements delaying negotiations and opposing arbitration

C ORRS C HAMBERS W ESTGARTH Telecommunications Recent Developments Review of towers, tower sites and underground facilities access regime DCITA Consultation Paper Concerns about regime: pre-emption of existing actual or planned rights hoarding of access rights Carrier submissions under consideration