Telecommunications Act Parts 7 and 8 requirements and exemptions
Background
Under new Parts 7 and 8 of the Telecommunications Act 1997 and new provisions in the Competition and Consumer Act 2010, arrangements are now in place to ensure end users have access to similar service outcomes on the National Broadband Network, regardless of network provider. The arrangements also support NBN Co Limited in achieving its national objectives, including uniform national wholesale pricing. To give industry time to adjust, the requirements commenced 12 months after the Telecommunications Legislation Amendment (National Broadband Network Measures—Access Arrangements) Act 2011 received royal assent. As such, they became operational on 12 April 2012.
The requirements apply to a fixed-line local access network or a part of such a network that is built, upgraded, altered or extended after 1 January 2011 so that it is capable of providing a carriage service where the download transmission speed is normally more than 25 megabits per second to residential or small business users. The effect of the requirements is that such a network must be wholesale-only, and that the operator of such a network must offer a layer 2 bitstream service on an open-access and non-discriminatory basis.
Under the Telecommunications Act, the Australian Communications and Media Authority (ACMA) has the power to make a layer 2 bitstream standard, but it has not seen a need to exercise this power.
Under the Competition and Consumer Act, the Australian Competition and Consumer Commission (ACCC) is required to declare a layer 2 bitstream service. This service, called the local bitstream access service, is the service carriers are required to supply if they are subject to the requirements under Parts 7 and 8. The ACCC declared this service in February 2012 in advance of the requirements under Parts 7 and 8 commencing in April 2012.
On 3 October 2012, the ACCC made a final access determination for the local bitstream access declaration. The ACCC set the price ceiling for the local bitstream access service by benchmarking it against NBN Co's price for a 25/5 Megabit per second service. This results in a price ceiling of $27 per month. A copy of the determination is available from the ACCC website at the link below.
Statutory exemptions to the Parts 7 and 8 requirements
There are a number of statutory exemptions to the requirements set out in Parts 7 and 8 of the Telecommunications Act. These exemptions cover:
- extensions to existing superfast networks within current real estate development projects
- 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 Parts 7 and 8 requirements
The Telecommunications Act provides for the minister to give exemptions (conditional or unconditional) from the Parts 7 and 8 requirements. This provides the minister with flexibility to deal with unforeseen or other circumstances. Exemptions may relate to specified networks, specified local access lines or network owners.
To date, the minister has granted the following five exemptions from requirements under Parts 7 and 8:
- Telstra's South Brisbane Exchange Service Area
- Specified Telstra Velocity networks
- Specified TransACT fibre networks
- Upgrades to TransACT's VDSL network
- TransACT very small scale networks
The exemption instruments are available here:
Requests for exemptions
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 Part7and8Exemptions@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 requests 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.
