Level playing field arrangements and exemptions

Background

The Telecommunications Legislation Amendment (National Broadband Network Measures—Access Arrangements) Act 2011 (NBN Access Act) received Royal Assent on 12 April 2011.

Amongst other things, the NBN Access Act amends the Telecommunications Act 1997 (new Parts 7 and 8) and Competition and Consumer Act 2011 to provide for new level playing field arrangements.

In general terms, the arrangements apply to fixed-line local access networks or a part of such networks that are built, upgraded, altered or extended after 1 January 2011 so that they are capable of providing carriage services where the download transmission speed is normally more than 25 megabits per second to residential or small business users. The effect of the arrangements is that such 'superfast networks' must be wholesale-only, and that the operator of such networks must supply a Layer 2 bitstream service on an open-access and non-discriminatory basis.

The arrangements ensure end users have access to the same kinds of service outcomes available on the NBN, regardless of the network provider. They also support NBN Co Limited in achieving its national objectives, including uniform national wholesale pricing, by ensuring it operates on a more level playing field.

The level playing field arrangements require the Australian Competition and Consumer Commission (ACCC) to declare a Layer 2 bitstream service. The ACCC declared this service, called the local bitstream access service (LBAS), in February 2012 in anticipation of the level playing field arrangements commencing in April 2012. The ACCC has also been consulting on an access determination for the service.

The Australian Communications and Media Authority (ACMA) may also determine, by legislative instruments, technical standards relating to the LBAS.

The department is working with the ACCC and the ACMA on these matters, as part of the implementation of the level playing field arrangements.

Statutory exemptions to the level playing field arrangements

There are a number of statutory exemptions to the level playing field arrangements set out in Parts 7 and 8 of the Telecommunications Act. These exemptions cover:

  • extensions to existing superfast networks within current real estate developments
  • extensions to existing network footprints no more than one kilometre from a point on the infrastructure of the existing network, as the network stood immediately before 1 January 2011
  •  connections to premises in close proximity to existing network footprints.

Ministerial exemptions to the level playing field arrangements

The Telecommunications Act provides for the minister to give exemptions (conditional or unconditional) from the level playing field arrangements. This provides the minister with flexibility to deal with circumstances where the application of the level playing obligations would lead to unforeseen and disproportionate consequences. Exemptions may relate to specified networks, specified local access lines or network owners.

To date, the minister has granted the following exemptions from the level playing field arrangements:

  • Telstra's South Brisbane Exchange Service Area
  • Specified Telstra Velocity networks
  • Specified TransACT fibre networks
  • Upgrades to TransACT’s VDSL network

See the details on the following page:

The granting of exemptions is a matter for the minister's discretion and each request for an exemption will be considered on its merits.

Please direct requests for exemptions to the minister, in writing, to:

The Minister for Broadband, Communications and the Digital Economy
Parliament House
Canberra ACT 2600

The minister's email address is minister@dbcde.gov.au

When requesting an exemption, please also email a copy to the department at NBNLegislation@dbcde.gov.au

Please include all matters in the submission considered relevant to that request for an exemption.

It is not possible to provide an exhaustive list of the matters which will be considered for each request for an exemption. However, some examples, noted in the Supplementary Explanatory Memorandum to the Telecommunications Legislation Amendment (National Broadband Network Measures—Access Arrangements) Bill 2011, include:

  • the size of the network concerned (for example, number of premises serviced)
  • the proposed duration of the exemption
  • the basis on which the exemption would cease
  • the impact on investors of having to change existing plans, particularly where projects are underway, contracts are signed, or negotiations are well advanced and this can be demonstrated
  • the relative benefits and disadvantages for end users, including the period they may need to wait for superfast broadband
  • the types of customers predominantly served by the network
  • the technological capabilities and adaptability of the technologies involved
  • the availability of other wholesale services on the network (networks would also be subject to normal telecommunications regulation, including access regulation)
  • significant changes in a carrier's operating environment that would have a demonstrable and material impact on its planned operations
  • the potential impact on NBN Co's ability to deliver on its national objectives.

Those seeking exemptions should identify any information contained in their requests that they want the Australian Government to treat as confidential. As the minister must consult with the ACCC and the ACMA before granting an exemption, details of submissions will need to be provided to the ACCC and the ACMA. Those seeking exemptions should also note that the department, the minister, the ACCC and the ACMA are subject to a range of legal requirements which govern the use and disclosure of information provided.

Those seeking exemptions should be aware that providing false or misleading information to the department in connection with their submission may be an offence under Part 7.4 of the Criminal Code.

Please note that the information provided above is not intended as a substitute for legal advice. Those seeking exemptions are encouraged to read the relevant legislation and extrinsic material and to seek their own independent legal advice when seeking an exemption.

 
 
 
 
Document ID: 138130 | Last modified: 20 April 2012, 4:37pm