Application by Chime Communications Pty Ltd - [2008] ACompT 4

AUSTRALIAN COMPETITION TRIBUNAL
Application by Chime Communications Pty Ltd
[2008] ACompT 4
TRADE PRACTICE – Telecommunications access regime – application for review - declared services – the local call service and the wholesale line rental service – application for exemption from standard access obligations – whether decision discretionary – whether the unconditioned local loop service is a substitute - whether possible to adopt a rule of thumb – need for empirical evidence - factors to be taken into account
Trade Practices Act 1974 (Cth), Pt XIC, ss 152AB, 152AL, 152ALA, 152AQA, 152AT, 152AW, 152CLA(1)
Seven Network Limited (No 1), Re (2004) 187 FLR 351
Sydney Airports Corporation Ltd, Re (2000) 156 FLR 10
Telstra Corporation Ltd (No 3), Re (2007) 242 ALR 482
RE:APPLICATIONS UNDER SECTION 152AV OF THE TRADE PRACTICES ACT 1974 (THE ACT) FOR A REVIEW OF AN EXEMPTION ORDER DECISION (INDIVIDUAL EXEMPTION ORDER NOS. 1 – 4 OF 2008) MADE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION (COMMISSION) IN RELATION TO TELSTRA CORPORATION LIMITED PURSUANT TO SECTION 152AT(3)(a) OF THE ACT
BY:CHIME COMMUNICATIONS PTY LTD

File No 2 of 2008
JUSTICE FINKELSTEIN (PRESIDENT), R DAVEY,
PROFESSOR D ROUND
22 DECEMBER 2008
MELBOURNE

IN THE AUSTRALIAN COMPETITION TRIBUNAL

File No 2 of 2008

RE:APPLICATIONS UNDER SECTION 152AV OF THE TRADE PRACTICES ACT 1974 (THE ACT) FOR A REVIEW OF AN EXEMPTION ORDER DECISION (INDIVIDUAL EXEMPTION ORDER NOS. 1 – 4 OF 2008) MADE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION (COMMISSION) IN RELATION TO TELSTRA CORPORATION LIMITED PURSUANT TO SECTION 152AT(3)(a) OF THE ACT
BY:CHIME COMMUNICATIONS PTY LTD
Applicant

JUDGE:

JUSTICE FINKELSTEIN (PRESIDENT)

R DAVEY
PROFESSOR D ROUND

DATE OF DETERMINATION:

22 DECEMBER 2008

WHERE MADE:

MELBOURNE

THE TRIBUNAL DETERMINES THAT:
The decision of the Australian Competition and Consumer Commission made on or about 22 August 2008 to grant Telstra Corporation Limited the exemption orders set out in appendixes E to H and the class exemption orders set out in appendixes I and J in its decision be set aside.

IN THE AUSTRALIAN COMPETITION TRIBUNAL

File No 2 of 2008

RE:APPLICATIONS UNDER SECTION 152AV OF THE TRADE PRACTICES ACT 1974 (THE ACT) FOR A REVIEW OF AN EXEMPTION ORDER DECISION (INDIVIDUAL EXEMPTION ORDER NOS. 1 – 4 OF 2008) MADE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION (COMMISSION) IN RELATION TO TELSTRA CORPORATION LIMITED PURSUANT TO SECTION 152AT(3)(a) OF THE ACT
BY:CHIME COMMUNICATIONS PTY LTD
Applicant

THE TRIBUNAL:

JUSTICE FINKELSTEIN (PRESIDENT)

R DAVEY
PROFESSOR D ROUND

DATE:

22 DECEMBER 2008

PLACE:

MELBOURNE

REASONS FOR DETERMINATION
Introduction

The provision of telecommunications services in Australia is heavily regulated. Part of that regulation, the establishment of a telecommunications access regime, is contained in Part XIC of the Trade Practices Act 1974 (Cth). Particular services may be declared and once declared are subject to what are referred to as standard access obligations (SAOs). Two services, the local call service (LCS) and the wholesale line rental service (WLR), were declared in July 2006 (with effect from 1 August 2006). The LCS had previously…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Chime Communications Pty Ltd

Details

AGLC: Application by Chime Communications Pty Ltd [2008] ACompT 4
Case: [2008] ACompT 4
Decision Date: 22 DECEMBER 2008

CaseChat Overview and Summary

The Australian Competition Tribunal was asked to review a decision of the Australian Competition and Consumer Commission (ACCC) to grant exemptions to Telstra Corporation Limited from the standard access obligations (SAOs) imposed by the Trade Practices Act 1974 (Cth) (TPA). The decision concerned the local call service and the wholesale line rental service. Chime Communications Pty Ltd sought a review of the decision on the ground that it was not satisfied that the making of the exemption orders would promote the long-term interests of end-users. The Tribunal was not satisfied that the making of the exemption orders sought by Telstra would promote the long-term interests of end-users of carriage services or of services provided by means of carriage services. The Tribunal set aside the decision of the ACCC to grant Telstra the exemption orders.

Orders