Seven Network Limited - [2004] ACompT 10

AUSTRALIAN COMPETITION TRIBUNAL
Seven Network Limited [2004] ACompT 10
File No 10 of 2003
RE:APPLICATION FOR REVIEW OF THE DECISION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 12 DECEMBER 2003 ON THE SECTION 152ATA DIGITAL PAY TV ANTICIPATORY INDIVIDUAL EXEMPTION APPLICATIONS LODGED BY TELSTRA CORPORATION AND TELSTRA MULTIMEDIA
BY:SEVEN NETWORK LIMITED (ACN 052 816 789) and C7 PTY LIMITED
(ACN 082 901 442)

File No 11 of 2003
RE:APPLICATION FOR REVIEW OF THE DECISION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 12 DECEMBER 2003 ON THE SECTION 152ATA DIGITAL PAY TV ANTICIPATORY INDIVIDUAL EXEMPTION APPLICATION LODGED BY FOXTEL MANAGEMENT PTY LIMITED (FOR AND ON BEHALF OF THE FOXTEL PARTNERSHIP AND FOXTEL CABLE TELEVISION)

BY:SEVEN NETWORK LIMITED (ACN 052 816 789) and C7 PTY LIMITED
(ACN 082 901 442)

JUSTICE GOLDBERG (President), MR G F LATTA and MR R F SHOGREN
13 DECEMBER 2004
MELBOURNE

SUMMARY

In accordance with the practice of the Australian Competition Tribunal in some cases of public interest the following summary has been prepared to accompany the Reasons for Decisions made today. The summary is intended to assist in understanding the outcome of these proceedings and is necessarily not a complete statement of the reasoning or the conclusions of the Tribunal. The only authoritative statement of the Tribunal’s reasons is that contained in the published Reasons for Decisions which is being published today and will be available on the Internet at together with this summary.

The matter before the Tribunal was a review of two decisions of the Australian Competition and Consumer Commission (“the Commission”) on 12 December 2003, one in relation to Foxtel and the other in relation to Telstra. The Commission ordered that Foxtel and Telstra were exempt from the standard access obligations with which carriers and carriage service providers are obliged to comply if the carriage services they provide are declared under Pt XIC of the Trade Practices Act 1974 (Cth) (“the Act”). Declaration would make the declared services subject to a regulatory regime, including regulatory involvement in the setting of terms and conditions of access. The exemptions were anticipatory in the sense that Telstra and Foxtel were not yet providing the services in question, which accordingly were not yet subject to declaration.

Seven Network Ltd and C7 Pty Ltd applied to the Tribunal to review the two decisions.

The Commission was satisfied that the making of the orders would promote the long‑term interests of end‑users of carriage services or services provided by means of carriage services. In determining whether it should order that Foxtel and Telstra be exempt from standard access obligations, the Commission was obliged to have regard to the extent to which such exemption was likely to result in the achievement of:

The objective of promoting competition in markets for listed services; and
The objective of encouraging the economically efficient use of and the economically efficient investment in the infrastructure by which listed services are supplied.

The Commission was so satisfied because Foxtel and Telstra had given…

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

AGLC: Seven Network Limited [2004] ACompT 10
Case: [2004] ACompT 10
Decision Date: 23 DECEMBER 2004

CaseChat Overview and Summary

The Australian Competition Tribunal reviewed two decisions of the Australian Competition and Consumer Commission (the Commission) made on 12 December 2003. The decisions related to applications by Telstra and Foxtel for exemption from standard access obligations under the Trade Practices Act 1974 (Cth). Seven Network Limited and C7 Pty Ltd (the applicants) applied to the Tribunal to review the decisions. The applicants argued that the review should be limited to identifying any errors made by the Commission in its decision-making process. The Tribunal, however, held that the review under section 152AV of the Act was a merits review, meaning the Tribunal had to determine whether the Commission's decision to grant the exemption orders was correct, based on the same information and evidence that was before the Commission. The Tribunal concluded that the review was not limited to finding errors and that it should make its own decision on whether the exemption orders should be granted. The Tribunal found that exempting Telstra and Foxtel from standard access obligations was not in the long-term interests of end-users of the relevant services. The Tribunal also had concerns about certain terms of the access undertakings provided by Telstra and Foxtel. Consequently, the Tribunal refused the applications by Telstra and Foxtel for exemption orders.

Orders