NBN Co cracks down on future critics

Ambiguous clause in draft contract.

NBN Co has warned ISPs not to criticise or blame it for broadband connection issues affecting businesses or consumers connected to the network.

In a revised wholesale broadband agreement (WBA) released late last week, NBN Co proposed an ambiguous new clause at E7 titled ‘Communications regarding Customer Products’.

“When dealing with Downstream Customers and End Users, Customer must not… criticise or attribute to NBN Co any fault or blame in connection with (i) Customer Products,” one part of the new clause stated.

Network status advisories published by ISPs to their customers routinely name the upstream (wholesale) provider as the source of an issue affecting end-user broadband or phone services.
 
iTnews raised concerns with NBN Co that the revised WBA could force ISPs to take the heat directly for any issues that affected network status, regardless of whether the issue occurred upstream of the ISP i.e. with NBN Co.

Spokesmen for wholesale providers Telstra and Optus declined to reveal whether similar anti-criticism provisions operated in their respective wholesale agreements with ISPs.

“Our wholesale contracts are commercial in confidence,” an Optus spokesman said. Telstra released a similar statement.

ISPs contacted by iTnews declined to comment publicly on the E7 clause, although at least one noted an understanding that the clause prevented ISPs from going to the media with issues before giving NBN Co adequate time to tackle them first.

An NBN Co spokesman said the clause was designed “to ensure issues that at times can be very complex are investigated and the root cause identified before information is passed to the downstream customer.

“If there is an issue impacting the operation or supply of the Customer’s Products, the NBN Co customer is free to advise its downstream customers about that issue at any time (if its impacting the service they provide),” the spokesman said.

“There is no prohibition on NBN Co’s customers [ISPs] communicating with their downstream customers about the existence of an issue contemplated by this drafting.

“The purpose of the ongoing consultation we’re undertaking is to identify areas of industry concern with the WBA and [we] look forward to their comments.”

The first draft of the WBA, released 27 October last year, saw Telstra, Optus, VHA, AAPT, iiNet, Internode, TPG and others make submissions on the proposed content.

That feedback has been incorporated into Version 2.0 of the WBA.

Industry had until 10 June, 2011 to make submissions on the current draft, including the E7 clause.