NBN Co can't muddy SAU with open-ended clauses

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NBN Co can't muddy SAU with open-ended clauses

ACCC intends to reject plan.

NBN Co looks to be facing defeat in its campaign to insert open-ended clauses into the core regulatory agreement that sets terms and conditions for its operations until 2040.

The network builder last year filed plans to broaden its special access undertaking (SAU) with the consumer watchdog, so it would cover newer access technologies in the multi-technology mix (MTM), as well as any future ones it may wish to adopt.

While the Australian Competition and Consumer Commission (ACCC) appears to have no issue editing the SAU to include specific technology types, it has sided with industry - including Telstra and Optus - to veto a clause that could let NBN Co use “any” access technology in the future without needing to amend the SAU.

When it applied for the open-ended clause last year, NBN Co had hoped to initially use it for its fibre-to-the-curb (FTTC) rollout, which at the time had not been confirmed, making NBN Co reluctant to formally place it in the SAU.

However, concerns were raised over the amount of power the proposal handed to NBN Co to select new technologies and set terms for future services, and the subsequent reduction in ACCC oversight.

That has led to the ACCC vetoing the proposed clause – and in turn, all proposed changes to the SAU - in a draft decision published today (pdf).

A second sticking point in amending the SAU is a proposal by NBN Co to remove how the “network boundary” between NBN Co and its access seekers' networks is defined.

ISPs were largely unimpressed with this development, with Optus noting it would have “important implications particularly in respect of service activation, fault rectification and installations”.

“The definition enables all parties to understand where a service is being delivered to and who is responsible for maintaining the various elements that constitute an end-to-end broadband service,” the ACCC said.

Other disputed parts of NBN Co’s proposed SAU include cuts to the information it provides to parties other than access seekers on its rollout.

The ACCC largely reserves judgment on this in its draft decision, but is seeking further input from industry on the effect of granting that part of NBN Co’s requests.

In addition, the ACCC has raised concerns over another round of edits that it says could hand NBN Co “broad discretion” over how long FTTN and FTTB users co-exist with ADSL users in certain areas, and over the ongoing performance of services in need of further “remediation” to bring them up to acceptable speeds.

Comment is being sought on the draft decision until April 21.

ACCC chairman Rod Sims said in a statement that, given the ACCC’s concerns with specific clauses, its only option was to reject the proposed changes outright.

“While the ACCC agrees with the overall approach that NBN Co has taken to incorporate the additional technologies into the SAU, it has concerns about some of the specific terms and conditions that NBN Co proposes to vary,” Sims said.

“As the ACCC can only accept or reject an SAU variation, our concerns mean that our draft decision is to reject the variation.

“However, we have provided clear guidance in the draft decision on how NBN Co can address these concerns and introduce these new technologies into the SAU.”

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