ACCC mulls interim determination on NBN access

Pushes for undertaking soon.
The Australian Competition and Consumer Commission (ACCC) has warned NBN Co that it could be subjected to the terms of an interim access determination if its proposed special access undertaking doesn't make the grade.

The competition watchdog's head of communications Michael Cosgrave told a parliamentary hearing that an interim decision by the ACCC would provide "a high premium" of price certainty for retail ISPs wanting to connect to the NBN.

An interim determination would also allow the ACCC to intervene on behalf of ISPs in access disputes while the wording of the final undertaking is being decided.

Cosgrave said that an interim determination would not require industry consultation and could avoid delays of between six months to a year for a formal undertaking.

But concerns from industry and the commission around the potential limitations of ACCC oversight of NBN Co and price aspects for smaller ISPs continue to weigh on the undertaking's final acceptance.

ACCC executives told MPs today that past experiences dictated that at least one revision by NBN Co would likely be required, despite ongoing and detailed
discussions between the parties.

While the criteria for determining a special access undertaking does
not differ significantly from a standard undertaking, only one special
access undertaking lodged to date to the ACCC - concerning Foxtel's
digital set top box - has been approved.

The other two lodged over the
past six years, including an initial undertaking from Foxtel, were
withdrawn after lengthy consultations.

NBN Co is expected to lodge its special access undertaking to the ACCC within weeks, after redoubling efforts in September to accelerate the document's preparation.

The draft undertaking - together with the NBN wholesale broadband agreement (WBA) - is the subject of a fourth round of industry consultation.

Both documents will solidify long-term prices and other provisions for accessing the NBN, with the WBA providing a five-year agreement for RSPs. It is expected to be finalised before the end of the year.

However, Cosgrave told the committee yesterday that he remained concerned service providers who sign the agreement before a formal undertaking is accepted could be blocked from pursuing a recourse through the ACCC for the length of the agreement.

"The difficulty is that in the event that people enter access
agreements, really they have no recourse to the commission," Cosgrave
said.

"What we're concerned about is that access seekers actually have the
ability to get a regulatory determination whether it be by way of the
commission accepting an undertaking or making an access determinations
when that right is triggered."

NBN Co plans to align the two documents once both are finalised and, in the interim, amended the wholesale agreement with RSPs with some protection provisions in the event an undertaking to the ACCC is not passed before 2017. 
Remember to holding the nation's largest telcos Telstra and Optus from releasing retail NBN pricing.

Though telcos hope a final agreement will be in place before the end of the year, Quigley told iTnews that NBN Co would not have an issue further extending the deadline of the trial agreement.