NBN Co has withdrawn the variation to its Special Access Undertaking it lodged with the ACCC in March this year and will submit a new variation proposal after consulting with industry.
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, such as how the minimum service standards and price caps will be determined over time, to promote competitive and efficient markets that benefit consumers.
The ACCC’s consultation paper on NBN Co’s March proposed variation to the undertaking identified a range of potential issues with the proposal, and submissions to the ACCC from the telecommunications industry were generally not supportive.
Shareholder ministers this week also gave their support for more significant reforms being implemented through a revised variation proposal from NBN Co.
“NBN Co withdrawing its March proposal brings to an end our formal consideration of it,” ACCC Commissioner Anna Brakey said.
“NBN Co has told us they will soon submit a new proposed variation that reflects the change in the policy landscape as well as industry feedback through the ACCC’s consultation process.”
The ACCC proposes to host an industry meeting in mid-August to allow NBN Co and its stakeholders to present their views on a revised variation to the undertaking. The ACCC will also publicly consult on the revised proposal, when it receives it, as required under the relevant legislation.
“Under the legislative regime we can only accept or reject a variation proposal, we cannot alter it. In deciding whether to accept it, we are required to promote the long-term interests of end users,” Ms Brakey said.
The shareholder ministers have told NBN Co that they expect it to provide support to broadband providers until a new variation comes into effect, and that interim commercial negotiations should leave providers no worse off. The ACCC will monitor these developments.
“When we receive NBN Co’s new variation proposal, we will review it and commence consultation as quickly as possible, so that the ACCC’s statutory process is finalised by early 2023. We are fully aware that broadband providers face commercial uncertainty without a variation to the undertaking in place,” Ms Brakey said.
“Importantly, our consultation will build on the submissions we’ve already received, and the meetings we had with the telco industry last year.”
Submissions made to the ACCC about the variation to the Special Access Undertaking are available at NBN Co SAU variation 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 (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.
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.
