ACCC mulls interim determination on NBN access

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The other two lodged over the past six years, including an initial undertaking from Foxtel, were withdrawn after lengthy consultations.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

Hurry up

Cosgrave acknowledged obstacles to the progress of the undertaking, including legislation and the $9 billion deal with Telstra, but said a decision would be required soon to provide regulatory certainty.

"I think it's been a long time in its gestation," he said. "If you had taken us back 18 months, two years ago, we would have expected it to be lodged by now.

"We clearly resourced on the basis that we would have received the undertaking already but we're not short on work."

Should the commission find NBN Co's undertaking unacceptable, Cosgrave said actions would be "fairly swift", although he would not clarify how long an interim decision could take when pressed by MPs on the issue.

The lodging of an SAU is a voluntary measure for NBN Co and is seen as taking the front foot, effectively removing the watchdog's need to make an access determination for the network itself.

No-slow on WBA

NBN Co executives insist the delayed undertaking will not slow down a final wholesale broadband agreement, which would establish final pricing and provisions for access seekers on the network.

The trial agreement currently in place is set to expire by the end of November, 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.