Application by Vodafone Network Pty Ltd & Vodafone Australia Limited - [2007] ACompT 1

AUSTRALIAN COMPETITION TRIBUNAL
Application by Vodafone Network Pty Ltd & Vodafone Australia Limited
[2007] ACompT 1
TRADE PRACTICES – application pursuant to s 152CE(1) of the Trade Practices Act 1974 (Cth) – application for review of decision of Australian Competition and Consumer Commission to reject access undertaking – mobile terminating access service – whether terms of the undertaking are reasonable – efficiency of costs – benchmark efficient operator – fully allocated cost model – pass through safeguard
Trade Practices Act 1974 (Cth): ss 103(1)(c), 152AA, 152AB(1), 152AH, 152AL, 152AQA, 152AR, 152BS, 152BV(2) 152BU(2), 152CE(1), 152CF, Pt XIC
Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth): ss 154, 155
Telstra Corporation Limited [2006] ACompT 4, applied
Application by Optus Mobile Pty Limited & Optus Networks Pty Limited [2006] ACompT 8, applied
Re Seven Network (No 4) (2004) 187 FLR 373, approved
Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511, cited
Application by East Australian Pipeline Limited [2004] ACompT 8; [2005] ACompT 3, cited
File No 4 of 2006
RE:APPLICATION FOR REVIEW OF THE FINAL DECISION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION DATED 31 MARCH 2006 IN RELATION TO THE ORDINARY ACCESS UNDERTAKING LODGED BY VODAFONE NETWORK PTY LTD AND VODAFONE AUSTRALIA LIMITED FOR THE GSM TERMINATING ACCESS SERVICE

BY: VODAFONE NETWORK PTY LTD and VODAFONE AUSTRALIA LIMITED
Applicants

JUSTICE GOLDBERG (PRESIDENT), MR R DAVEY and MR R SHOGREN
11 JANUARY 2007
MELBOURNE

IN THE AUSTRALIAN COMPETITION TRIBUNAL

File No 4 of 2006
RE:APPLICATION FOR REVIEW OF THE FINAL DECISION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION DATED 31 MARCH 2006 IN RELATION TO THE ORDINARY ACCESS UNDERTAKING LODGED BY VODAFONE NETWORK PTY LTD AND VODAFONE AUSTRALIA LIMITED FOR THE GSM TERMINATING ACCESS SERVICE
BY:VODAFONE NETWORK PTY LTD and VODAFONE AUSTRALIA LIMITED
Applicants

THE TRIBUNAL:

JUSTICE GOLDBERG (PRESIDENT), MR R DAVEY and MR R SHOGREN

DATE OF DECISION:

11 JANUARY 2007

WHERE MADE:

MELBOURNE

THE TRIBUNAL DECIDES THAT:
1.The decision of the Australian Competition and Consumer Commission on 31 March 2006 rejecting the ordinary access undertaking given to it on 23 March 2005 by Vodafone Network Pty Ltd and Vodafone Australia Limited is affirmed.

IN THE AUSTRALIAN COMPETITION TRIBUNAL

File No 4 of 2006
RE:APPLICATION FOR REVIEW OF THE FINAL DECISION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION DATED 31 MARCH 2006 IN RELATION TO THE ORDINARY ACCESS UNDERTAKING LODGED BY VODAFONE NETWORK PTY LTD AND VODAFONE AUSTRALIA LIMITED FOR THE GSM TERMINATING ACCESS SERVICE
BY:VODAFONE NETWORK PTY LTD and VODAFONE AUSTRALIA LIMITED
Applicants

THE TRIBUNAL:

JUSTICE GOLDBERG (PRESIDENT), MR R DAVEY and MR R SHOGREN

DATE OF DECISION:

11 JANUARY 2007

WHERE MADE:

MELBOURNE

INDEX
1.      INTRODUCTION ……………………………………………………………………….    [1]
2.      PARTIES TO THE APPLICATION …………………………………………………… [5]
3.      THE LEGISLATIVE REGIME …………………………………………………………. [6]
4.      ISSUES ………………………………………………………………………………….    [10]
5.      THE MOBILE TERMINATING ACCESS SERVICE AND THE COMMISSION’S
MTAS PRICING PRINCIPLES DETERMINATION ………………………………   [13]

6.      VODAFONE’S UNDERTAKING ……………………………………………………    [14]
7.      BACKGROUND ……………………………………………………………………….    [22]
8.      THE COMMISSION’S REASONS FOR REJECTING THE…

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.

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Details

Case: [2007] ACompT 1
Decision Date: 11 JANUARY 2007

CaseChat Overview and Summary

The Australian Competition Tribunal has affirmed the decision of the Australian Competition and Consumer Commission (the Commission) to reject an access undertaking given by Vodafone Network Pty Ltd and Vodafone Australia Limited (Vodafone). The undertaking related to the provision of Vodafone's mobile terminating access service (MTAS). The Tribunal considered whether the price term of 16.15 cents per minute for the period 1 January 2007 to 30 June 2007 and subsequent validity periods and the terms in "Part C – Pass Through Safeguard" of the Service Schedule to the undertaking were reasonable. The Tribunal concluded that it was not satisfied that Vodafone's price term and the Pass Through Safeguard provisions were reasonable, having regard to the matters specified in s 152AH and the objectives set out in s 152AB of the Trade Practices Act 1974 (Cth). The Tribunal did not consider it necessary to reach a concluded view on the reasonableness of a number of other non-price terms and conditions in the undertaking. The Tribunal affirmed the decision of the Commission rejecting Vodafone's access undertaking.

Orders