Telstra Corporation Ltd v Australian Competition & Consumer Commission
[2008] FCA 1436
•19 September 2008
FEDERAL COURT OF AUSTRALIA
Telstra Corporation Ltd v Australian Competition & Consumer Commission [2008] FCA 1436
ADMINISTRATIVE LAW – Telecommunications Access Regime under Pt XIC of Trade Practices Act 1974 (Cth) – access disputes between three access seekers and carrier (Telstra Corporation Ltd – Telstra) – Australian Competition and Consumer Commission (ACCC) arbitrating disputes under Div 8 of Pt XIC – ACCC makes final determination under s 152CP – Telstra challenges final determinations on judicial review grounds – statutory list of mandatory relevant considerations – whether one or more should be given priority – exhortatory provisions – whether final determinations invalid because period exceeded period of declaration of Line Sharing Service as a declared service
TRADE PRACTICES – Telecommunications Access Regime under Pt XIC of Trade Practices Act 1974 (Cth) – access disputes between three access seekers and carrier (Telstra Corporation Ltd – Telstra) – Australian Competition and Consumer Commission (ACCC) arbitrating disputes under Div 8 of Pt XIC – ACCC makes final determination under s 152CP – Telstra challenges final determinations on judicial review grounds – statutory list of mandatory relevant considerations – whether one or more should be given priority – exhortatory provisions – whether final determinations invalid because period exceeded period of declaration of Line Sharing Service as a declared service
Trade Practices Act 1974 (Cth) Pt XIC, Div 8, ss 152AB, 152AQA, 152CR, 152AL, 152ALA, 152CM, 152DNA, 152DNC
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 distinguished
Australasian Meat Industry Employees’ Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491 cited
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 cited
Commissioner forAustralian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 cited
Craig v South Australia (1995) 184 CLR 163 cited
Daniel v State of Western Australia (2004) 138 FCR 254 cited
Dumitrov v SC Johnson and Son Superannuation Pty Ltd (No 2) [2007] NSWSC 42 cited
East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 239 ALR 50 discussed
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 cited
Girretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 cited
Idonz Pty Ltd v National Capital Development Commission (1986) 13 FCR 70 discussed
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 cited
Jones v Dunkel (1959) 101 CLR 298 distinguished
Kioa v West (1985) 159 CLR 550 distinguished
Martincevic v Commonwealth (2007) 164 FCR 45 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 referred to
Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 distinguished
Minister for Immigration v Eshetu (1999) 197 CLR 611 cited
Nevistic v Minister for Immigration & Ethnic Affairs (1981) 34 ALR 639 cited
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 cited
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 cited
R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 distinguished
R v The Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 referred to
R v Toohey; ex parte Meneling Station Pty Ltd (1983) 158 CLR 327 cited
Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 cited
Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 cited
Segal v Waverley Council (2005) 64 NSWLR 177 cited
Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 cited
Somaghi vMinister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 cited
Stead v State Government Insurance Commission (1986) 161 CLR 141 referred to
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 6 May 1997, Lindgren J) cited
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 cited
Tickner v Chapman (1995) 57 FCR 451 discussed
Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 cited
Urban Transit Authority of NSW v Nweiser (1992) 28 NSWLR 471 citedTELSTRA CORPORATION LIMITED v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION and REQUEST BROADBAND PTY LTD
NSD 1744 OF 2007
TELSTRA CORPORATION LIMITED v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION and PRIMUS TELECOMMUNICATIONS PTY LTD
NSD 1743 OF 2007
TELSTRA CORPORATION LIMITED v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION and CHIME COMMUNICATIONS PTY LTD
NSD 1560 OF 2007LINDGREN J
19 SEPTEMBER 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1744 OF 2007
BETWEEN:
TELSTRA CORPORATION LIMITED
ApplicantAND:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
First RespondentREQUEST BROADBAND PTY LTD
Second Respondent
JUDGE:
LINDGREN J
DATE OF ORDER:
19 SEPTEMBER 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The proceeding be listed at 9.30am on 22 October 2008 for the making of orders, including orders as to costs.
2.The parties attempt to agree on the orders to be made, including orders as to costs.
3.If, by 8 October 2008 agreement has not been reached, the parties provide to the Associate to Lindgren J by 17 October 2008 the forms of orders for which they will respectively contend and written submissions in support.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1743 OF 2007
BETWEEN:
TELSTRA CORPORATION LIMITED
ApplicantAND:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
First RespondentPRIMUS TELECOMMUNICATIONS PTY LTD
Second Respondent
JUDGE:
LINDGREN J
DATE OF ORDER:
19 SEPTEMBER 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The proceeding be listed at 9.30am on 22 October 2008 for the making of orders, including orders as to costs.
2.The parties attempt to agree on the orders to be made, including orders as to costs.
3.If, by 8 October 2008 agreement has not been reached, the parties provide to the Associate to Lindgren J by 17 October 2008 the forms of orders for which they will respectively contend and written submissions in support.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1560 OF 2007
BETWEEN:
TELSTRA CORPORATION LIMITED
ApplicantAND:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
First RespondentCHIME COMMUNICATIONS PTY LTD
Second Respondent
JUDGE:
LINDGREN J
DATE OF ORDER:
19 SEPTEMBER 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The proceeding be listed at 9.30am on 22 October 2008 for the making of orders, including orders as to costs.
2.The parties attempt to agree on the orders to be made, including orders as to costs.
3.If, by 8 October 2008 agreement has not been reached, the parties provide to the Associate to Lindgren J by 17 October 2008 the forms of orders for which they will respectively contend and written submissions in support.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1744 OF 2007
BETWEEN:
TELSTRA CORPORATION LIMITED
ApplicantAND:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
First RespondentREQUEST BROADBAND PTY LTD
Second Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1743 OF 2007
BETWEEN:
TELSTRA CORPORATION LIMITED
ApplicantAND:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
First RespondentPRIMUS TELECOMMUNICATIONS PTY LTD
Second Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1560 OF 2007
BETWEEN:
TELSTRA CORPORATION LIMITED
ApplicantAND:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
First RespondentCHIME COMMUNICATIONS PTY LTD
Second Respondent
JUDGE:
LINDGREN J
DATE:
19 SEPTEMBER 2008
PLACE:
SYDNEY
TABLE OF CONTENTS
Section Para
Introduction [1]
A Telstra’s Cost Model
[123]
B Invalidity of Final Determination [239]
C Pooling and Allocation Method [268]
D Line Costs Recovery [346]
E Disconnection Charges, Churn Process and “Option 2” [418]
F Disconnection Charges, Backdating and the “No Charge Period” [508]
REASONS FOR JUDGMENT
INTRODUCTION
These three proceedings concern Pt XIC of the Trade Practices Act 1974 (Cth) (the Act) headed “Telecommunications Access Regime”. Part XIC was introduced into the Act by the Trade Practices Amendment (Telecommunications) Act 1997 (No 58 of 1997) (see item 6 of Sch 1) with effect from 30 April 1997. It provides for a regulated access regime specific to telecommunications services. By way of contrast, Part IIIA of the Act provides for a general access regime not limited to a specific industry. Section 152CK of the Act provides for the interaction between the two regimes, but it is not of present relevance.
The proceedings relate to access to the High Frequency Unconditioned Local Loop Service, also known as the Line Sharing Service (LSS). The applicant (Telstra) owns the lines over which the LSS is provided.
There were access disputes between Telstra and the second respondents in the three proceedings in relation to access to the LSS. I will refer to the access seekers by the following abbreviations:
Chime Communications Pty Ltd Chime
Primus Telecommunications Pty Ltd Primus
Request Broadband Pty Ltd RequestIn certain circumstances, Pt XIC permits an access dispute to be arbitrated by the first respondent, the Australian Competition and Consumer Commission (ACCC – referred to as the Commission in the Act and in various parts of the evidence and in the parties’ submissions). Arbitration takes place under Div 8 of Pt XIC.
Pursuant to the mechanism in Div 8, ACCC made a final determination in respect of each access dispute. Telstra seeks review of each of the final determinations.
The three proceedings were heard together, the evidence in each being evidence in the others, subject to all just exceptions on grounds of relevance.
In the table below, I identify, in summary form, the grounds of review referable to various paragraphs in s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) on which Telstra relies, leaving until later the explanation of the grounds. Each “Ground No” is a reference to the number of the ground in the relevant amended application. The capitalised letters of the alphabet in bold in the left hand column indicate the grouping of those grounds that I use at [123]ff below.
Ground of review relied on by Telstra
Request proceeding
Ground No
Chime
proceeding
Ground No
Primus
proceeding
Ground No
A
Failure to take into account a relevant consideration, namely, Telstra’s cost model
1
1
NA
A
Denial of procedural fairness by failing to afford Telstra a reasonable opportunity to present its case with respect to Telstra’s cost model
2(a)
2(a)
N/A
D
Denial of procedural fairness by denying Telstra a reasonable opportunity to present its case as to whether Telstra was recovering its line costs
2(b)
2(b)
N/A
A
Procedural ultra vires in relation to Telstra’s cost model – failure to comply with s 152DB(1)(b) of the Act
3
3
N/A
B
Decision made in excess of jurisdiction, not authorised by the Act and otherwise contrary to law because decision expressed to have effect until 31 December 2007, yet the declaration of the LSS pursuant to s 152AL(3) of the Act expired on 31 October 2007
4
4
1
C
Procedural ultra vires and failure to take into account a relevant consideration, namely, the direct costs of providing access to the LSS (s 152CR(1)(d)) in adopting the Pooling and Allocation Method
5(a)
5(a)
N/A
C
Procedural ultra vires and failure to take into account a relevant consideration, namely, the long-term interests of end-users and in particular the legitimate commercial interests of Telstra including its ability to exploit economies of scale and scope (ss 152CR(1)(a), and 152AB(2)(e) and (6)(b) of the Act) in adopting the Pooling and Allocation Method
5(b)
5(b)
N/A
C
Procedural ultra vires and failure to take into account a relevant consideration, namely, the LSS Pricing Principles (s 152AQA(6) of the Act) in adopting the Pooling and Allocation Method
5(c)
5(c)
N/A
C
Error of law in misconstruing s 152CR(1)(d) of the Act in concluding that the Pooling and Allocation Method allowed Telstra to recover its costs, including its direct costs
6
6
N/A
D
Error of law by making a finding of fact that Telstra was recovering its line costs when there was no evidence to justify the finding
7
7
N/A
E
Procedural ultra vires when determining disconnection charges by not enquiring of Telstra concerning, or investigating solutions to address, the practical difficulties of adopting a more precise test than Option 2 – failure to comply with s 152DB(1)(b) of the Act
8
N/A
2
E
Denial of procedural fairness by failing to afford Telstra a reasonable opportunity to present its case in relation to disconnection charges by failing to disclose the issue of Option 2
9(a)
N/A
3(a)
E
Denial of procedural fairness by failing to afford Telstra a reasonable opportunity to present its case in relation to disconnection charges by failing to disclose the material constituting the practical difficulties of a more precise test than Option 2
9(b)
N/A
3(b)
F
Failure to take into account a relevant consideration, namely, Telstra’s costs when determining disconnection charges during the No Charge Period
10(a)
N/A
4(a)
F
Procedural ultra vires by failing to take into account matters referred to in s 152CR(1) and to have regard to the LSS Pricing Principles when determining disconnection charges during the No Charge Period
10(b)
N/A
4(b)
F
Jurisdictional error by asking itself the wrong question in relation to disconnection charges during the No Charge Period
10(c)
N/A
4(c)
As can be seen, all of the grounds are raised in the Request proceeding, but not all of them are raised in the Chime proceeding or Primus proceeding. (An eleventh ground was raised in all three proceedings but, as noted at [26] below, it is no longer relevant.) Accordingly, evidence was led in the Request proceeding on the basis that it would also be all the evidence relevant to the issues in the Chime proceeding and Primus proceeding. Conformably with that course, I will refer to the Request proceeding alone, but in doing so I will necessarily also be addressing the issues in the Chime proceeding and the Primus proceeding.
In due course I will deal with Telstra’s grounds of review in the following sections:
Section Section title Telstra’s grounds
A Telstra’s Cost Model 1, 2(a), 3
B Invalidity of Final Determination 4
C Pooling and Allocation Method 5(a), 5(b), 5(c), 6
D Line Costs Recovery 2(b), 7
E Disconnection Charges, Churn Process and “Option 2”
8, 9(a), 9(b)
F Disconnection Charges, Backdating and the “No Charge Period” 10(a), 10(b), 10(c)
Telstra contends in respect of each of its grounds of review that the result is that the decision is invalid or is liable to be set aside (although Telstra concedes in respect of Section B (Invalidity of Final Determination) that the decision would be invalid only in respect of the period after 31 October 2007).
I agreed to the parties’ request that I publish my reasons for judgment without making orders, and allow the parties the opportunity to make submissions on the orders to be made.
SOME TECHNICAL MATTERS
The proceedings have been characterised by numerous acronyms and terms, some of which relate to technical matters. Annexure A to these reasons is an alphabetical list of acronyms and technical terms and their meanings.
Telstra owns a variety of networks which it uses to provide telecommunication services. One such network is the Public Switched Telephone Network (PSTN). Through the PSTN, Telstra provides to end-users various telephony and data services such as local, long distance, national and international calls and dial-up internet connections. Another Telstra network is its “Broadband” network. The PSTN and the Broadband network use what is called the Customer Access Network (CAN). Generally speaking, the CAN can be understood to be the network of connections between end-users, whether business or private, and some aggregation point within the network, which is usually a local exchange building.
Connection between the end-user and that point within the network is normally achieved by way of “line” (or “metallic pair” or “twisted pair”) of copper or aluminium wire, or where there is no fixed line, by radio. The copper or aluminium wire is often referred to as “unconditioned communications wire”. It forms a continuous copper or aluminium path between the premises of end-users and exchanges and is commonly referred to as the Unconditioned Local Loop (ULL), “local loop” or, simply, “line”. The word “unconditioned” signifies that the wire is bare or unqualified, that is, the equipment required to make it serviceable is not yet attached to it.
Both the LSS and another service referred to below, the Unconditioned Local Loop Service (ULLS), are provided over the CAN, and to a retail customer, or end‑user, over a ULL. The CAN is the generic expression which applies to all of the ULLs: the ULLs, taken together, constitute the CAN.
THE LEGISLATION
Division 1 (ss 152AA-152AK) within Pt XIC is headed “Introduction”.
Section 152AA, the first section in Div 1, gives the following simplified outline of Pt XIC:
●This Part sets out a telecommunications access regime.
●The Commission may declare carriage services and related services to be declared services.
●Carriers and carriage service providers who provide declared services are required to comply with standard access obligations in relation to those services.
●The standard access obligations facilitate the provision of access to declared services by service providers in order that service providers can provide carriage services and/or content services.
●The terms and conditions on which carriers and carriage service providers are required to comply with the standard access obligations are subject to agreement.
●If agreement cannot be reached, but the carrier or carriage service provider has given an access undertaking, the terms and conditions are as set out in the access undertaking.
●If agreement cannot be reached, but no access undertaking is in operation, the terms and conditions are to be determined by the Commission acting as an arbitrator.
●An access undertaking (other than a special access undertaking) may adopt the terms and conditions set out in a telecommunications access code.
●The Commission may conduct an arbitration of a dispute about access to declared services. The Commission’s determination on the arbitration must not be inconsistent with the standard access obligations or an access undertaking.
●The Commission may register agreements about access to declared services.
●A carrier, carriage service provider or related body must not prevent or hinder the fulfilment of a standard access obligation.
There is no access undertaking in operation relevant to these proceedings.
Section 152AB(1) sets out the single object of Pt XIC. Subsections (1) to (3) of s 152AB are as follows:
Object
(1)The object of this Part is to promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.
Promotion of the long- term interests of end- users
(2)For the purposes of this Part, in determining whether a particular thing promotes the long-term interests of end-users of either of the following services (the listed services):
(a)carriage services;
(b)services supplied by means of carriage services;
regard must be had to the extent to which the thing is likely to result in the achievement of the following objectives:
(c)the objective of promoting competition in markets for listed services;
(d)the objective of achieving any-to-any connectivity in relation to carriage services that involve communication between end-users;
(e)the objective of encouraging the economically efficient use of, and the economically efficient investment in:
(i)the infrastructure by which listed services are supplied; and
(ii)any other infrastructure by which listed services are, or are likely to become, capable of being supplied.
Subsection (2) limits matters to which regard may be had
(3)Subsection (2) is intended to limit the matters to which regard may be had.
The “long-term interests of end-users” is commonly referred to by the acronym LTIE, which I will use. Although the term “end-user” is not defined, it is convenient to think of it as referring to a retail customer or “consumer”. There may be other persons who have a right to use a service, such as a member of the retail customer’s household: see s 152CR(1)(c) (set out at [40] below).
The expressions “carrier” and “carriage service provider” are defined in s 152AC to have the same meaning as they have in the Telecommunications Act 1997 (Cth). I need not discuss those meanings. It suffices to say that Telstra is a carrier in relation to the LSS.
On the hearing there was a suggestion that there may be a difference between a legislative requirement to “take into account” something and a legislative requirement to “have regard” to something, one being more demanding than the other. I do not agree (see Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511; (2002) 24 ATPR 41-886 (Epic Energy) at [55]). I am not persuaded by the fact that within Pt XIC itself the legislature has sometimes used one expression and sometimes the other (compare, for example, s 152AB(2) at [17] above and s 152CR at [40] below). I will use the expressions interchangeably.
It will be noted that subs (3) of s 152AB makes the list in subs (2) an exhaustive list of the matters to which regard may be had for the purpose of determining whether a particular thing promotes the LTIE.
Subsections (4) and (6) of s 152AB identify certain matters to which regard must be had in connection with the subs (2)(c) and (e) considerations respectively, but subss (5) and (7) respectively make it clear that subss (4) and (6) do not limit the matters to which regard may be had.
Section 152AC defines the terms “access”, “access seeker”, “declared service” and “standard access obligation”. Those expressions are defined to have the meanings given by ss 152AF, 152AG, 152AL and 152AR respectively, discussed below.
Sections 152AF and 152AG are as follows:
152AF Access
(1)A reference to this Part to access, in relation to a declared service, is a reference to access by a service provider in order that the service provider can provide carriage services and/or content services.
(2)For the purposes of this Part, anything done by a carrier or carriage service provider in fulfilment of a standard access obligation is taken to be an aspect of access to a declared service.
152AG Access seeker
(1)This section sets out the circumstances in which a person is taken to be an access seeker in relation to a declared service for the purposes of this Part.
(2)A service provider is an access seeker in relation to a declared service if the provider makes, or proposes to make, a request in relation to that service under section 152AR (which deals with the standard access obligations), whether or not:
(a)the request is refused; or
(b)the request is being complied with.
(3)A service provider is an access seeker in relation to a declared service if:
(a)the provider wants access to the service; or
(b)the provider wants to change some aspect of the provider’s existing access to the service; or
(c)the supplier of the service wants to change some aspect of the provider’s existing access to the service.
Request is an access seeker in relation to the LSS.
Section 152AH, headed “Reasonableness – terms and conditions”, is not of immediate relevance to the present three proceedings but the similarity of s 152AH(1) to s 152CR(1) (set out at [40] below) is instructive (s 152AH(1) omits only para (e) of s 152CR(1)), as is the prominence that it, like s 152CR(1), gives to the LTIE:
(1)For the purposes of this Part, in determining whether particular terms and conditions are reasonable, regard must be had to the following matters:
(a)whether the terms and conditions promote the long-term interests of end-users of carriage services or of services supplied by means of carriage services;
(b)the legitimate business interests of the carrier or carriage service provider concerned, and the carrier’s or provider’s investment in facilities used to supply the declared service concerned;
(c)the interests of persons who have rights to use the declared service concerned;
(d)the direct costs of providing access to the declared service concerned;
(e)the operational and technical requirements necessary for the safe and reliable operation of a carriage service, a telecommunications network or a facility;
(f)the economically efficient operation of a carriage service, a telecommunications network or a facility.
(2)Subsection (1) does not, by implication, limit the matters to which regard may be had.
ACCC can be called upon to determine whether particular terms and conditions are reasonable under s 152BK(3)(c) in relation to the making by ACCC of a telecommunications access code (telecommunications access codes are dealt with in Div 4 and are not of present concern), and under s 152BV(2)(d) in relation to the acceptance by ACCC of an access undertaking proffered by a carrier or carriage service provider (see [34] below).
Division 2 (ss 152AL-152AQB) within Pt XIC deals with “Declared services”. Section 152AL(3) provides that ACCC may, by written instrument, declare that a specified “eligible service” is a “declared service” if certain conditions identified in that subsection are satisfied. I need not discuss the meaning of “eligible service”. The LSS is a declared service (see [28], [52] below).
At one time Telstra submitted that the declaration of the LSS was a legislative rather than an administrative act, and was invalid for failure to comply with certain provisions of the Legislative Instruments Act 2003 (Cth) (LI Act). However, following the enactment of the Trade Practices Amendment (Access Declarations) Act 2008 (Cth), this attack (expressed in an eleventh ground of review that was relied on by Telstra) has not been pressed.
Section 152ALA is important for Telstra’s Ground 4 (which I address in Section B (Invalidity of Final Determination) at [239]ff below). Subsections (1) to (5) of s 152ALA are as follows:
Expiry date
(1)A declaration under section 152AL must specify an expiry date for the declaration.
(2)An expiry date must occur in the 5-year period beginning when the declaration was made.
(3)Subsection (2) has effect subject to subsection (4).
Extension of expiry date
(4)The Commission may, by notice published in the Gazette, extend or further extend the expiry date of a specified declaration under section 152AL, so long as the extension or further extension is for a period of not more than 5 years.
Duration of declaration
(5)Unless sooner revoked, a declaration under section 152AL ceases to be in force on the expiry date of the declaration.
On 7 October 2002, pursuant to s 152AL(3), ACCC declared the LSS to be a declared service with effect on 16 October 2002, the date on which the declaration was notified in the Commonwealth of Australia Gazette (GN41, 16 October 2002) (LSS Declaration). By a subsequent instrument dated 19 November 2003, which took effect on 3 December 2003, the day on which it was published in the Commonwealth of Australia Gazette (GN48, 3 December 2003), ACCC determined that s 152ALA of the Act had effect in relation to the LSS Declaration as if 31 October 2007 had been specified in the LSS Declaration as its expiry date. By an instrument dated 26 October 2007, which took effect on 29 October 2007, the day on which it was published in the Commonwealth of Australia Gazette (GN 5214), ACCC extended the period of the LSS Declaration to 31 July 2009 pursuant to s 152ALA(4) of the Act.
Section 152AQA assumes some importance in the present proceedings. It obliges ACCC to determine pricing principles relating to the price of access to a declared service. Subsections (1)-(6) and (8) of s 152AQA provide:
Determination
(1)The Commission must, by writing, determine principles relating to the price of access to a declared service.
(2)The determination may also contain price-related terms and conditions relating to access to the declared service.
Timing
(3)The Commission must make such a determination at the same time as, or as soon as practicable after:
(a)the Commission declares a service to be a declared service; and
(b)if the Commission varies a declared service - that variation.
Consultation
(4)Before making such a determination, the Commission must:
(a)publish a draft of the determination and invite people to make submissions to the Commission on the draft determination; and
(b)consider any submissions that are received within the time limit specified by the Commission when it published the draft determination.
Publication
(5)The Commission must publish the determination in such manner as it considers appropriate (including in electronic form).
Arbitration
(6)The Commission must have regard to the determination if it is required to arbitrate an access dispute under Division 8 in relation to the declared service.
…
Definition
(8)In this section:
price-related terms and conditions means terms and conditions relating to price or a method of ascertaining price.
ACCC determined pricing principles relating to the LSS at the same time as it issued its final decision on whether to declare a LSS (see [62]ff below).
Section 152AQB provides that certain declared services are “core services”. The LSS is not a core service.
Division 3 (ss 152AR-152BBD) within Pt XIC deals with “Standard access obligations” (SAOs). The key provisions are subss (2) and (3) of s 152AR, which provide:
Access provider and active declared services
(2)For the purposes of this section, if a carrier or a carriage service provider supplies declared services, whether to itself or to other persons:
(a)the carrier or provider is an access provider; and
(b)the declared services are active declared services.
Supply of active declared service to service provider
(3)An access provider must, if requested to do so by a service provider:
(a)supply an active declared service to the service provider in order that the service provider can provide carriage services and/or content services; and
(b)take all reasonable steps to ensure that the technical and operational quality of the active declared service supplied to the service provider is equivalent to that which the access provider provides to itself; and
(c)take all reasonable steps to ensure that the service provider receives, in relation to the active declared service supplied to the service provider, fault detection, handling and rectification of a technical and operational quality and timing that is equivalent to that which the access provider provides to itself.
Telstra accepts that it provides the LSS to other persons. Therefore, Telstra is an access provider, the LSS is an active declared service, and the obligations specified in s 152AR(3) are enlivened. (Telstra does not concede that it provides the LSS to itself, but this does not matter for present purposes.) Section 152AR contains fifteen subsections in all. Subsections (4) to (12) elaborate on the subs (3) obligations and provide for exemptions from them. For present purposes the detail does not matter. Section 152AC defines SAOs as having the meaning given by s 152AR.
The terms and conditions on which SAOs are complied with are determined in one of three ways. First, they can be agreed between the carrier or carriage service provider and the access seeker: s 152AY(2)(a). Second, failing agreement, if there is an “access undertaking” given by the carrier or carriage service provider that deals with the matter (see Div 5 discussed below), the relevant terms and conditions of that access undertaking apply: s 152AY(2)(b)(i). Third, in all other cases the terms and conditions are as determined by ACCC under Div 8 of Pt XIC (Div 8 provides for the arbitration of access disputes – see [35]ff below): s 152AY(2)(b)(ii) and (iii).
Section 152AZ provides, relevantly, that a carrier licence held by a carrier is subject to a condition that the carrier must comply with any SAOs applicable to the provider. Section 152BB empowers this Court to make orders directed to the enforcement of the SAOs.
Division 5 (ss 152BS-152CGB) is headed “Access undertakings”. It refers to written undertakings given by a carrier or carriage service provider to ACCC by which that carrier or carriage service provider undertakes to comply with the terms and conditions specified in the undertaking in relation to applicable SAOs. Section 152BU(2) requires ACCC to accept or reject a proffered undertaking. As will be noted below, ACCC rejected an undertaking relating to the LSS that was proffered by Telstra. Section 152BV provides that if a proffered access undertaking does not adopt a set of model terms and conditions set out in the telecommunications access code provided for in Div 4 of Pt XIC, ACCC must not accept the undertaking unless certain conditions are satisfied. One of these, s 152BV(2)(d), is that ACCC is satisfied that the terms and conditions specified in the undertaking are reasonable (see s 152AH(1) set out at [24] above).
Division 8 (ss 152CL-152EB) within Pt XIC is of central importance to the present proceedings. It is headed “Resolution of disputes about access”. The Division’s first section, s 152CL, contains definitions. A “determination” means a determination made by ACCC under Div 8, and includes both a “final determination” and an “interim determination” (ID). The present three proceedings relate to final determinations, although these were in fact preceded by IDs.
Section 152CLA provides in subs (1) that in exercising its powers under Div 8, ACCC must have regard to the desirability of access disputes being resolved in a timely manner. A note to the subsection draws attention to the fact that ACCC must also have regard to, relevantly, the matters set out in s 152CR (see [40] below) and the pricing principles under s 152AQA (see [29] above).
Section 152CM provides for notification by either an access seeker or the carrier or carriage service provider of an access dispute to ACCC in certain circumstances. Access disputes were notified to ACCC in relation to each of the present three proceedings.
Section 152CP(1) provides that unless ACCC terminates the arbitration, it must make a written determination on access by the access seeker to the declared service. Section 152CP(2) provides that the determination may deal with any matter relating to access including matters that were not the basis for notification of the dispute. ACCC must give to the parties a draft of its proposed determination (s 152CP(4)) and, when it makes the determination, its reasons for making it (s 152CP(5)). The final determination to which the Request proceeding relates was made by ACCC on 1 August 2007 (Final Determination). The Final Determination was accompanied by a statement of ACCC’s reasons for making it (FD Statement of Reasons).
Section 152CPA deals with IDs. Section 152CPA(3) provides that ACCC is not required to observe any requirements of procedural fairness in relation to the making of an ID in the circumstances set out in that subsection. Similarly, ACCC is not required to observe any such requirements in relation to a variation of an ID in the circumstances set out in subs (12) of s 152CPA. However, the attacks made in the present proceedings are on final determinations to which, it is not disputed, the requirements of procedural fairness apply.
Section 152CR, which is of recurrent importance in these proceedings, provides:
(1)The Commission must take the following matters into account in making a final determination:
(a)whether the determination will promote the long-term interests of end-users of carriage services or of services supplied by means of carriage services;
(b)the legitimate business interests of the carrier or provider, and the carrier's or provider's investment in facilities used to supply the declared service;
(c)the interests of all persons who have rights to use the declared service;
(d)the direct costs of providing access to the declared service;
(e)the value to a party of extensions, or enhancement of capability, whose cost is borne by someone else;
(f)the operational and technical requirements necessary for the safe and reliable operation of a carriage service, a telecommunications network or a facility;
(g)the economically efficient operation of a carriage service, a telecommunications network or a facility.
(2)The Commission may take into account any other matters that it thinks are relevant.
(3)The Commission may take the following matters into account in making an interim determination:
(a)a matter referred to in a paragraph of subsection (1);
(b)any other matters that it thinks are relevant.
(4)In making an interim determination, the Commission does not have a duty to consider whether to take into account a matter referred to in a paragraph of subsection (1).
[my emphasis]
As will be seen below, Telstra places particular emphasis on the mandatory relevant considerations described in paras (a), (b) and (d) of s 152CR(1). As noted at [24] above, with the exception of para (e), the matters listed in s 152CR(1) are those also listed in s 152AH(1). The LTIE is the first mandatory consideration listed (a reflection of its importance as the object of Pt XIC (see s 152AB(1) set out at [17] above). Subsection (2) of s 152CR empowers, but does not oblige, ACCC to take into account any other matters that it thinks are relevant.
Section 152CRA deals with the publication of a determination and of ACCC’s reasons for making it. The section empowers ACCC to publish, in whole or in part, a determination and its supporting statement of reasons in such manner as it considers appropriate. It must, however, first give the parties notice of its intention to do so and an invitation to make written submissions against publication. This provision assumes importance in relation to claims that a part or parts of a determination are and should remain confidential.
Section 152DB(1) provides:
(1)In an arbitration hearing about an access dispute, the Commission:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act as speedily as a proper consideration of the dispute allows, having regard to the need to carefully and quickly inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute; and
(c)may inform itself of any matter relevant to the dispute in any way it thinks appropriate.
As will be seen, various aspects of para (b) of s 152DB(1) are relied on by the respective parties. The Explanatory Memorandum relating to the Trade Practices Amendment (Telecommunications) Bill 1996 stated of this provision (at p 70):
Proposed s. 152DB, which is based on s. 44ZF of the [Act], provides that the ACCC is not bound by the rules of evidence when hearing an access dispute and may require that evidence or argument be presented in writing and may decide those matters on which it will require oral evidence or argument. Hearings should be conducted in a speedy manner, having regard to the matters affecting resolution of the dispute and may be conducted by telephone, closed circuit television or any other means of communication.
The ACCC may also determine the length of time reasonably necessary for the parties to fairly and adequately present their cases and may require that the cases be present within that length of time.
Section 152DK provides for a party to an arbitration to inform ACCC that in that party’s opinion, a specified part of a document contains confidential commercial information and to request ACCC not to give a copy of that part to another party. The section provides for the way in which ACCC is to deal with such a request, and empowers it to accede to the request.
Section 152DN provides that a final determination has effect 21 days after the determination is made. As noted above, the Final Determination was made on 1 August 2007 and so had effect on and from 22 August 2007.
Section 152DNA provides in subss (1) and (2):
(1)Any or all of the provisions of a final determination may be expressed to have taken effect on a specified date that is earlier than the date on which the determination took effect.
(2)The specified date must not be earlier than the date on which the parties to the determination commenced negotiations with a view to agreeing on the terms and conditions as mentioned in paragraph 152AY(2)(a).
This provision is relevant to cl 5A(i) of the Final Determination which provides that a disconnection charge is not payable by Request to Telstra where the disconnection occurred between 15 November 2006 and the date when the Final Determination came into effect (22 August 2007) and to Telstra’s Grounds 10(a), 10(b) and 10(c) (Section F (Disconnection Charges, Backdating and the “No Charge Period”)). Section 152DNA(4) provides that a provision of a final determination may be expressed to cease to have effect on a specified date.
Section 152DNC is relevant to Telstra’s ground of challenge based on the Final Determination’s purporting to have an operation for a period that extended beyond the then expiration date of the LSS Declaration (Telstra’s Ground 4 – Section B (Invalidity of Final Determination)). Section 152DNC provides:
(1)This section applies if:
(a) a declaration under section 152AL expires; and
(b)immediately before the expiry of the declaration, a final determination was in force in relation to the declared service concerned; and
(c)the determination does not have an indefinite duration.
(2)Despite the expiry of the declaration, the declaration continues in force for the purposes of:
(a)ascertaining whether the determination remains in force; and
(b)ascertaining whether a party to the determination has any obligations under section 152AR to any other party to the determination while the determination remains in force; and
(c)exercising the Commission's power to vary the determination under section 152DT.
(3)A party to the determination is not entitled to notify an access dispute in relation to the declared service.
BACKGROUND FACTS
Agreed chronology
The parties agreed on a chronology of events, a copy of which is Annexure B to these reasons for judgment. The word “common” in that annexure indicates that the event referred to is relevant to all three proceedings. In Annexure B, the words Request, Chime and Primus indicate relevance to the Request, Chime and Primus proceedings respectively.
In the following paragraphs, I recount in various degrees of detail some of the more important events and associated documents. I will descend into greater detail as necessary when I come to consider Telstra’s grounds of review.
Access Pricing Principles – Telecommunications: a guide
Shortly after Pt XIC was introduced into the Act (with effect from 30 April 2007 – see [1] above) ACCC published, in July 1997, Access Pricing Principles – Telecommunications: a guide (Access Pricing Principles guide). This was a guide to the approach that ACCC would adopt, in the usual case, when considering access pricing issues under Pt XIC. The publication of the paper followed the release of a draft of it in February 1997 and a public forum in relation to it held in April 1997.
Two points may be noted concerning the Access Pricing Principles guide. First, the document states that the expression “direct costs” was intended to exclude profits lost by an access provider (or any other party) in a dependent market as a result of the provision of access. The document stated that it was implied that “at a minimum, an access provider should cover the direct incremental costs incurred in providing access”. This statement by ACCC is relevant to Telstra’s Grounds 5(a), 5(b), 5(c) and 6 dealt with in Section C (Pooling and Allocation Method). Second, the document states that the access price chargeable by Telstra should, in general, be based on the total service long-run incremental cost (TSLRIC) of providing the service. TSLRIC was defined in the Access Pricing Principles guide as:
... the incremental or additional costs the firm incurs in the long-term in providing the service, assuming all of its other production activities remain unchanged. It is the cost the firm would avoid in the long-term if it ceased to provide the service. As such, TSLRIC represents the costs the firm necessarily incurs in providing the service and captures the value of society’s resources used in its production.
ACCC was later to elaborate on the meaning of TSLRIC and its elements in the LSS Pricing Principles (see [63] below).
The LSS
I gave a brief description of some relevant technical concepts, including the PSTN, LSS, ULL, ULLS and CAN at [11]ff above.
On 21 September 2001 ACCC announced that it would conduct an inquiry into whether or not an LSS should be declared under Pt XIC of the Act. ACCC undertook that inquiry and published its report in August 2002: Line Sharing Service: Final Decision on whether or not a Line Sharing Service should be declared under Pt XIC of the Trade Practices Act 1974 (LSS Declaration Final Report). ACCC declared the LSS a “declared service” by an instrument dated 7 October 2002. The LSS Declaration took effect on 16 October 2002 as noted at [28] above. The LSS Declaration described the LSS as follows:
The High Frequency Unconditioned Local Loop Service is the use of the non-voiceband frequency spectrum of unconditioned communications wire (over which wire an underlying voiceband PSTN service is operating) between the boundary of a telecommunications network at an end-user’s premises and a point on a telecommunications network that is a potential point of interconnection located at, or associated with, a customer access module and located on the end-user side of the customer access module.
It will be noted that the definition requires that an underlying voiceband PSTN service be already operating over the ULL.
The upper part of the available transmission spectrum of a ULL is the “non-voiceband frequency spectrum” (also referred to as broadband or high frequency spectrum), and the lower part of the spectrum is the voiceband or telephony frequency spectrum (also referred to as narrowband or low frequency spectrum). Access to the LSS is access to the upper part only of the available transmission spectrum of a ULL. Telstra retains the lower part of the spectrum of the ULL, over which voice services such as local calls and long distance calls can be provided. Access to the LSS allows a service provider or access seeker such as Request to provide any xDSL service (the “family” of Digital Subscriber Line (DSL) services including Assymetric DSL (ADSL)) over the high frequency spectrum of the ULL, once its own equipment is connected to the line. The documents and submissions referred to in these reasons use a combination of the terms DSL, xDSL and ADSL, and I will do likewise, but the terms can all be understood to refer to services provided over the high frequency spectrum of the ULL.
The charges payable by Request to Telstra in relation to the LSS that arise for consideration in the present proceedings include:
·charges for the connection and disconnection of ULLs; and
·periodic charges for the ongoing use of the high frequency spectrum of the ULL to provide the LSS, usually expressed as an annual or equivalent monthly charge (LSS periodic charges – also referred to as LSS monthly charges and LSS annual charges).
The ULLS
Related to the LSS is another declared service known as the ULLS. ACCC declared the ULLS a declared service by an instrument dated 4 August 1999 which took effect on 11 August 1999, the date of publication of the declaration in the Commonwealth of Australia Gazette (GN 32, 11 August 1999).
Both the ULLS and the LSS involve the use of a ULL. However, while the LSS gives the access seeker the use of only part of a ULL (the high frequency spectrum), the ULLS gives the access seeker the use of the entirety of a ULL. In substance, the ULLS enables access seekers to supply both voice (telephony) and broadband services to end-users. Again, in order to do so, the access seeker’s own equipment must be connected to the line.
The terms of the LSS Declaration Final Report of August 2002
In the LSS Declaration Final Report, ACCC noted that on 19 April 2002 it had issued a draft decision to declare a LSS. It observed that at that stage Telstra had indicated that it was likely to begin providing a LSS from 1 July 2002 but ACCC expressed concern about the competitive structure of the market, in particular, a concern that Telstra was unlikely to be constrained in its pricing and output decisions by the presence of effective substitutes.
ACCC also noted that even though Telstra had reached commercial agreements with some carriers in relation to the charges to be made for the LSS, ACCC considered that the amounts were likely to exceed those expected in a competitive market for a LSS.
ACCC stated that it believed there were two types of costs that could be included in the price of a LSS: first, incremental LSS-specific costs, and second, some allocation of the costs of a line over which a LSS was provided.
ACCC accepted that it was reasonable for an access provider (Telstra) to recover incremental LSS-specific costs through the access charge for a LSS, but stated that where it was already recovering its line costs from other revenue sources, it would be inappropriate to include any element of line costs in the price of a LSS. ACCC added:
At present, the Commission believes that Telstra already fully recovers its line-related costs through a range of other revenue sources … In this instance, therefore, the Commission believes the appropriate price for a LSS should be set with reference only to the LSS-specific costs of providing a LSS.
However, were Telstra to alter its pricing structure such that it no longer recovered all of its line related costs through its various other revenue sources, the Commission believes it may be appropriate to include an allocation of line related costs in the price of a LSS. In this instance, whilst estimation of the efficient contribution that the price of a LSS should make to recover these costs would be difficult, the Commission believes a practical cost allocation rule could simply be the difference between the geographically de-averaged cost of the line over which a LSS is provided and the line rental revenue recovered from services provided over the remaining low-frequency portion of the line.
ACCC stated that it believed it was in a position to indicate what pricing principles were appropriate for a declared LSS (see s 152AQA of the Act set out at [29] above), although it was not in a position to know what price the application of those principles would yield. However, ACCC said it believed it did not need to know this in order to decide to declare a LSS, and that the exact amount would fall to be considered if Telstra proffered an undertaking in relation to the provision of a LSS (see Div 5 of Pt XIC discussed at [34] above) or if ACCC was required to arbitrate the terms and conditions on which a LSS was provided (see Div 8 of Pt XIC discussed at [35]ff above).
The LSS Pricing Principles
ACCC set out its “Final Pricing Principles for a LSS” (LSS Pricing Principles) in Ch 7 of the LSS Declaration Final Report.
In the LSS Pricing Principles, ACCC stated that in the usual case it would apply the TSLRIC methodology for determining access prices. ACCC stated, inter alia, that TSLRIC was an “attributable cost concept” in that it referred only to those costs that could be attributed to the production of the particular service, in this case the LSS. Costs common to more than one service did not satisfy that description and therefore did not form part of TSLRIC. However, ACCC noted that in practice TSLRIC is sometimes defined to include a contribution to indirect and overhead costs (TSLRIC+), and sometimes an additional contribution is also included in recognition of an access deficit (TSLRIC++).
ACCC stated that while TSLRIC (and its variants) determine an access price using a “bottom-up” costing methodology, ACCC had also in the past considered “top-down” pricing methodologies, such as a retail-minus avoidable cost (RMAC) approach.
ACCC observed that technically the ULLS was the service closest to a LSS, and that it was useful to consider ACCC’s approach to the pricing of the ULLS and to assess its applicability to a LSS.
ACCC expressed the belief that a TSLRIC pricing methodology was most appropriate for the pricing of a LSS and noted that submissions it had received broadly agreed. Telstra had not offered any alternatives and had rejected the RMAC approach.
ACCC noted that while it had not undertaken a full cost study regarding the size of LSS-specific costs, an independent consultant had estimated the ULLS-specific costs to be relatively small.
ACCC addressed the “key question”, as ACCC described it, of whether or not any allocation of the cost of the line should be recovered through the price of a LSS. This issue is relevant to Section D (Line Costs Recovery) and I set out ACCC’s discussion of the issue in more detail in that section.
The overall view expressed by ACCC was that if Telstra were to show that it was not fully recovering its line costs through its various other sources of revenue, it might be appropriate that the price of the LSS include some allocation of the cost of the line over which a LSS was provided.
The undertaking that was proffered by Telstra
Following the making of the LSS Declaration, Telstra submitted an access undertaking in relation to the LSS on 1 September 2003. Telstra proposed an LSS access price of $15 per service in operation (SIO) per month.
In August 2004 ACCC published A final report on the assessment of Telstra’s undertaking for the Line Sharing Service (LSS Undertaking Final Report), which asserted that ACCC’s analysis still showed that Telstra was already fully recovering its line-related costs through revenue from other services.
Importantly, in section 7.1.3 ACCC addressed “LSS-specific costs – an analysis of Telstra’s LSS cost model”. This cost model was not the version that Telstra was to supply to ACCC in May 2007 with which Section A (Telstra’s Cost Model) is concerned.
In support of its proffered undertaking, Telstra had asserted that its model indicated that the efficient service-specific costs of the LSS exceeded $57 per LSS per month. However, ACCC observed that Telstra had proposed an access price of $15 per LSS per SIO for the period of the undertaking supposedly in order to prevent “rate shock”.
ACCC expressed the view that Telstra’s LSS cost model appeared to be technically sound, but ACCC had concerns with the specific input parameters and assumptions used in it and its treatment of depreciation and timing of cost recognition. ACCC referred to Telstra’s LSS cost model as using a “tilted annuity approach for depreciation of capital”.
ACCC’s conclusion was that Telstra’s LSS cost model would have to be modified to allow for the calculation of a more reasonable and appropriate access price. In this regard, ACCC stated that it had developed a modified LSS cost model which included a small modification to the model that ACCC had provided to interested parties following the release of ACCC’s draft report (a reference to ACCC’s A draft report on the assessment of Telstra’s Undertaking for the Line Sharing Service of June 2004) to reflect a minor adjustment to the approach to depreciation.
On 13 December 2004 Telstra submitted further proposed monthly charge undertakings for the ULLS and the LSS, in which the proposed monthly charge for the LSS was reduced to $9 per LSS per month.
In March 2005 ACCC published two discussion papers: Telstra’s Undertakings for the Line Sharing Service – Discussion Paper (LSS Undertakings Discussion Paper) and Telstra’s Undertaking for the Unconditioned Local Loop Service – Discussion Paper (ULLS Undertakings Discussion Paper).
In August 2005 ACCC published its Assessment of Telstra’s ULLS and LSS Monthly Charge Undertakings – Draft Decision (ULLS and LLS Undertakings Draft Decision).
In December 2005 ACCC published its final decision in respect of the proffered ULLS and LSS monthly charge undertakings: Assessment of Telstra’s ULLS and LSS monthly charge undertakings (ULLS and LLS Undertakings Final Report).
ACCC concluded that Telstra’s monthly charge of $9 for the LSS was not consistent with the relevant criteria and rejected the proffered undertaking.
Telstra applied under s 152CE(1) of the Act to the Australian Competition Tribunal (Tribunal) for review of ACCC’s decision of 21 December 2005 to reject its proffered LSS access undertaking. On 2 June 2006 the Tribunal published its decision (Telstra Corporation Limited [2006] ACompT 4 (Tribunal’s 2006 Decision)), in which it addressed, inter alia, a pooling and allocation of LSS-specific costs (which is relevant to Section C (Pooling and Allocation Method)). The Tribunal affirmed ACCC’s decision of 21 December 2005 rejecting Telstra’s proffered LSS access undertaking of 13 December 2004.
The access dispute between Telstra and Request
On 18 April 2006 ACCC received a copy of Request’s notification (dated 13 April 2006) to ACCC under s 152CM(1) of an access dispute between Request and Telstra. The dispute concerned both the LSS periodic charges and the LSS connection and disconnection charges.
On or about 15 September 2006 ACCC provided to the parties a draft ID (First Draft ID), an accompanying issues paper (First Draft ID Issues Paper) and associated papers which related to the LSS connection and disconnection charges, but not to the LSS periodic charges.
On or about 6 October 2006 ACCC provided to the parties a second draft ID (Second Draft ID), an accompanying issues paper (Second Draft ID Issues Paper) and associated papers in relation to Telstra’s LSS periodic charges.
On or about 2 November 2006 ACCC made an ID (First ID), and gave reasons in support (First ID Statement of Reasons), with respect to LSS connection and disconnection charges and associated matters (but not the LSS periodic charges). Subsequently, on 21 December 2006, ACCC made a further ID (Second ID) and gave reasons in support (Second ID Statement of Reasons). The Second ID revoked the First ID, reproduced its provisions relating to the LSS connection and disconnection charges, and fixed LSS periodic charges.
By letter dated 2 February 2007, ACCC requested the parties to confirm, inter alia, the issues that remained in dispute for the purposes of the making of a final determination. The parties subsequently confirmed that they remained in dispute over both the LSS periodic charges and charges for LSS connections and disconnections.
By letter dated 6 March 2007, ACCC advised the parties that in coming to a final determination, it proposed to have regard to certain things which it listed, including the LSS Pricing Principles.
By letter dated 21 March 2007, ACCC wrote to Telstra in relation to access to confidential documents.
By letter dated 28 March 2007, ACCC advised the parties that a compact disc (CD) containing certain confidential documents would be couriered to the parties.
On or about 30 March 2007 ACCC provided the parties with its draft final determination (DFD) and consultation paper (DFD Consultation Paper) which set out issues on which ACCC sought submissions. Both Telstra and Request provided ACCC with primary and responsive submissions.
In a letter dated 26 April 2007 to ACCC, Telstra referred to the documents that it understood ACCC was intending to take into account in making a final determination. Telstra stated that it presumed that ACCC would “also consider the models which were attached to its [ACCC’s] 21 March 2007 letter”.
On 30 April 2007 ACCC responded, noting that Telstra’s letter of 26 April 2007 did not contain a full list of relevant matters, and referring Telstra to letters from ACCC of 6 March 2007, 21 March 2007 and 30 March 2007.
In circumstances to be discussed below in Section A (Telstra’s Cost Model), Telstra filed and served submissions in response to the DFD Consultation Paper in early May 2007.
As previously noted, on or about 1 August 2007 ACCC made the Final Determination which specified the ongoing LSS periodic charges and the LSS connection and disconnection charges to be paid by Request to Telstra. ACCC provided the parties with a copy of the Final Determination and FD Statement of Reasons by letter and email respectively on that day.
The Final Determination took effect on 22 August 2007, 21 days from the date on which it was made, and expired on 31 December 2007 – a period of only a little over four months. It will be recalled that as at the date of the making of the Final Determination and the date that it took effect, the LSS Declaration was due to expire on 31 October 2007 (that is, prior to the date on which the Final Determination was due to expire). This is relevant to Telstra’s Ground 4 which I address in Section B (Invalidity of Final Determination).
Telstra commenced the Request proceeding on 29 August 2007.
Events subsequent to the commencement of the Request proceeding
In October 2007 ACCC published its Review of the Line Sharing Service Declaration – Final Decision (Review of LSS Final Decision). ACCC concluded, following an inquiry (commenced in April 2007) in accordance with s 152ALA(7) of the Act, that the expiry date for the LSS Declaration should be extended until 31 July 2009. Chapter 3 of the Review of LSS Final Decision contained new pricing principles for the LSS (2007 LSS Pricing Principles).
As noted at [28] above, on 29 October 2007 ACCC extended the expiry date of the LSS Declaration to 31 July 2009.
On 13 February 2008, after the hearing had ended, Request filed a notice of motion seeking leave to reopen the proceeding in order to tender additional evidence. The proposed additional evidence comprised a final determination of ACCC made on 20 December 2007 (Adam Final Determination) in respect of ACCC’s arbitration of an LSS access dispute between Telstra and Adam Internet Pty Ltd (Adam) and ACCC’s accompanying statement of reasons for that final determination (Adam FD Statement of Reasons). The further evidence was sought to be tendered as relevant to Section A (Telstra’s Cost Model) and Section E (Disconnection Charges, Churn Process and “Option 2”). I heard the motion on 4 March 2008 and reserved my decision on the basis that it and the reasons for it would be delivered as part of the final reasons for decision in the proceedings.
INTRODUCTION TO THE ISSUES
I have found the following introduction to the issues in Request’s written closing submissions useful. It will be recalled that I have grouped Telstra’s grounds into sections using letters. I have added to Request’s closing submissions the letter to which each issue belongs.
(a)in relation to Telstra’s “cost model” [Section A (Telstra’s Cost Model)], Telstra submits that:
(i)the “cost model” was a relevant consideration that the Commission was bound to take into account but did not (Telstra’s Ground 1);
(ii)in alleged breach of the rules of procedural fairness, the Commission failed to notify Telstra that it believed that it had not received the “cost model” (Telstra’s Ground 2(a));
(iii)the above two grounds constitute alleged contraventions of section 152DB(1) of the Trade Practices Act 1974 (“TPA”) (Telstra’s Ground 3);
(b)Telstra submits that the Commission exceeded its jurisdiction [Section B (Invalidity of Final Determination)] by making a final determination that had effect until 31 December 2007 when, at the time the final determination was made, the LSS declaration was due to expire on 31 October 2007 (even though the LSS declaration was subsequently extended) (Telstra’s Ground 4);
(c)in relation to Telstra’s line costs [Section D (Line Costs Recovery)], Telstra submits that:
(i)the Commission found, without any evidence, that Telstra was already recovering its line costs (Telstra’s Ground 7);
(ii)in breach of the rules of procedural fairness, the Commission advised the parties that it did not seek submissions on the calculation of line costs but did make a determination on this issue, depriving Telstra of a reasonable opportunity to present its case (Telstra’s Ground 2(b));
(d)in relation to the “pooling and allocation method” [Section C (Pooling and Allocation Method)], Telstra submits that :
(i)The Commission did not take Telstra’s direct costs of providing the service into account as required by TPA s 152CR(1)(d) (Telstra’s Ground 5(a)). Similarly, in finding that the pooling and allocation method allowed Telstra to recover its direct costs, the Commission misconstrued TPA s 152CR(1)(d) and thereby made an error of law (Telstra’s Ground 6);
(ii)the Commission failed to take the long term interests of end users into account because it did not take into account, and “give fundamental weight to” Telstra’s legitimate commercial interests, namely its ability to exploit economies of scale and scope (Telstra’s Ground 5(b)); and
(iii)by adopting the “pooling and allocation method”, the Commission failed to have regard to its pricing principles, as required by TPA s 152AQA(6) (Telstra’s Ground 5(c));
(e)in relation to the LSS “churn” process [Section E (Disconnection Charges, Churn Process and “Option 2”)], Telstra submits:
(i)the Commission did not make enquiries of Telstra as to the practical difficulties which precluded the adoption of a more precise test than “Option 2”, in alleged contravention of s 152DB(1) of the TPA (Telstra’s Ground 8); and
(ii)in alleged breach of the requirements of procedural fairness, the Commission failed to disclose to Telstra:
(A)its consideration of “Option 2” (Telstra’s Ground 9(a)); and
(B)the material constituting the “practical difficulties” referred to (Telstra’s Ground 9(b));
(f)in relation to disconnections between 15 November 2006 and the date of the final determination [Section F (Disconnection Charges, Backdating and the “No Charge Period”)], Telstra submits that the Commission:
(i)failed to take into account Telstra’s costs of doing those disconnections, being a relevant consideration it was bound to take into account (Telstra’s Ground 10(a));
(ii)failed to comply with s 152CR(1) of the TPA and failed to have regard to the pricing principles (Telstra’s Ground 10(b)); and
(iii)fell into jurisdictional error by asking itself the wrong question (Telstra’s Ground 10(c));
(g)[para (g) addressed Telstra’s Ground 11, which has not been pressed.]
With reference to paras (a) to (f) of its summary of Telstra’s submissions, Request summarises its responses as follows (footnotes omitted):
(a)There is no evidence that the Commission did not take Telstra’s “summary” (as distinct from an actual cost model) into account. In any event, the summary was based upon a number of assumptions that were addressed and expressly rejected by the Commission. Accordingly the Commission was not obliged to take the cost model further into consideration because there is nothing to show that it might have made a difference.
(b)There is no legal rule that requires the Commission to limit the period of a determination so that it does not extend beyond the expiry date of the relevant declaration. Indeed, the legislative scheme of Part XIC of the TPA points in the opposite direction.
(c)Prior to the Final Determination, the question of Telstra’s line costs has been considered on at least seven earlier occasions by the Australian Competition Tribunal and the Commission (including on at least four occasions during the arbitration that led to the Final Determination (“the LSS Arbitration”)). Telstra was given the opportunity to make submissions on each occasion and often did so. Those submissions have not ever been accepted by the Tribunal or the Commission. Telstra is in substance seeking merits review by judicial determination of this issue, which it is not entitled to. Moreover, Telstra misunderstands what the Commission said it would do and in fact did.
(d)Telstra’s “pooling and allocation method” has been considered on at least eight occasions prior to the Final Determination. The position is similar to the line costs issue save that, whereas it might be argued that the question of recovering line costs was not directly addressed by Telstra in its submissions as part of the LSS Arbitration, Telstra did specifically address the “pooling and allocation method”. Those submissions were considered and rejected by the Commission. Telstra is in substance seeking impermissible merits review by judicial determination of this issue also.
(e)The nature of the issues relating to the LSS churn process, the history of the arbitration and the fact that the terms ultimately adopted by the Commission were, in many respects, more favourable to Telstra than the previously considered alternatives, mean that there was no obligation on the Commission to raise this issue with Telstra in any more detail than it was raised in the course of the arbitration. In any event, raising the issue with Telstra would not have made any difference to the Commission’s determination and so it is not amenable to judicial review.
(f)In relation to disconnection charges between the date of the interim determination and the final determination, Telstra misconceives the factors to which the Commission is required to have regarded when determining whether or not a charge should be backdated. Further, backdating could not have been done in the manner suggested by Telstra without rewarding Telstra for its tardiness in establishing an LSS churn process. The principal purpose of the backdating power is to compensate an access seeker for costs associated with delay, not to reward tardiness by the service provider.
(g)...
ACCC made submissions only in relation to issues of law of general importance relating to its power and procedures under the Act, and other exceptional matters. ACCC referred to the principles established in R v The Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 (Hardiman) at 35-36 as the reason for its limited participation. ACCC’s submissions related to aspects of Section A (Telstra’s Cost Model), Section B (Invalidity of Final Determination) and Section F (Disconnection Charges, Backdating and the “No Charge Period”). (ACCC also addressed submissions to Telstra’s Ground 11, but, as noted previously, that ground is no longer relevant).
Request concedes that the Final Determination is amenable to review under the ADJR Act. No party addressed submissions independently to s 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act). In its written closing submissions, Request for the first time submitted that it was “unlikely” that the Court had jurisdiction under s 39B(1) of the Judiciary Act on the ground that ACCC, as distinct from its Commissioners, was not an “officer of the Commonwealth”. Nothing turns on the point. In addition to its jurisdiction under the ADJR Act, the Court has relevant jurisdiction under s 39B(1A)(c) of the Judiciary Act and s 163A of the Act.
THE NATURE OF AN ARBITRATION OF AN ACCESS DISPUTE UNDER DIV 8 OF PT XIC OF THE ACT
Within Div 8, the “Arbitration of access disputes” is the subject matter of Subdiv C (ss 152CO-152CU) and the “Procedure in arbitrations” is the subject matter of Subdiv D (ss 152CV-152DMA).
The arbitration of access disputes between a carrier or provider of carriage services (in the present proceedings Telstra) and an access seeker (in the present proceedings, relevantly, Request) for which Div 8 provides, is of a special kind. It is necessary to understand the special kind of arbitration for which Div 8 provides and the breadth of the considerations that Div 8 requires or permits ACCC to take into account in order to assess the parties’ submissions.
ACCC’s role is not simply that of an arbitrator called upon to consider rival cases involving merely the competing commercial antagonists. ACCC is required to take into account the interests of persons who are not parties to the arbitration – in particular, but not exclusively, end-users.
The object of Pt XIC is stated in s 152AB(1) as being simply to promote the LTIE of carriage services and of services provided by means of carriage services: s 152AB(1). Since Div 8 is within Pt XIC, that is its sole object too. Consistently with that object, of the considerations that s 152CR(1) requires ACCC to take into account when making a final determination, the first one mentioned is the LTIE.
Similarly, s 152AH lists the LTIE as the first matter to be considered when it is to be determined whether particular terms and conditions are reasonable for the purposes of the making of a telecommunications access code under Div 4, and for the purpose of accepting an access undertaking proffered under Div 5 (see [24] above).
In determining whether a particular thing promotes the LTIE, for any of the purposes of Pt XIC, the first matter listed to which regard must be had is the extent to which the thing is likely to achieve the promotion of competition in markets for listed services: s 152AB(2)(c).
It is true that ACCC must also take into account when making a final determination the business interests of the carrier or provider, but only its legitimate business interests and its investment in supply facilities (s 152CR(1)(b)). ACCC must also, however, take into account the interests of all persons who have rights to use the declared service (s 152CR(1)(c)).
The scheme that is revealed is one of investing in ACCC as arbitrator very broad policy orientated powers. It would be wrong to approach an arbitration by ACCC under Div 8 with preconceptions derived from ordinary commercial arbitration processes.
TELSTRA’S FUNDAMENTAL WEIGHT SUBMISSION
Various grounds on which Telstra relies depend on statutory provisions that require ACCC to “have regard to” or “take into account” (nothing turns on the difference – see [19] above) certain matters. The most notable of those provisions is s 152CR(1) (set out at [40] above) which lists matters that ACCC must take into account in making a final determination. Telstra submits that the provisions on which it relies required ACCC to take particular matters into account as “fundamental” elements in its decision making process or required ACCC to give those matters “fundamental weight” to considerations. This submission is relevant to many of Telstra’s Grounds and I address it at once.
In support of this “fundamental weight” submission, Telstra relies on R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 (Sean Investments) which concerned s 40AA(7) of the National Health Act 1953 (Cth). That Act provided for the approval of premises as nursing homes, and made approval subject to a condition that the fees charged in respect of nursing home care of a “qualified nursing home patient” would not exceed fees payable in accordance with a scale determined by the Permanent Head of the relevant Department. Section 40AA(7) directed the Permanent Head to “have regard to costs necessarily incurred in providing nursing home care in the nursing home”.
Mason J held that those words required the Permanent Head to take those costs into account and “to give weight to them as a fundamental element in making his determination” (at 329). His Honour gave two reasons for this conclusion. First, they were the only matter explicitly mentioned as a matter required to be taken into account, and second, the scheme of the provisions was that once premises were approved as a nursing home, the proprietor was bound by the conditions of approval not to exceed the scale of fees fixed. His Honour observed that in many cases it was to be expected that the scale of fees would be fixed by reference to the costs necessarily incurred plus a profit factor, and that in the nature of things the costs necessarily incurred were a fundamental matter for consideration.
Sean Investments is distinguishable. It is readily understandable that the fees to be fixed must cover the costs necessarily incurred in providing nursing home care in the particular nursing home. Approval of the particular nursing home would be frustrated if the level of fees permitted to be charged did not cover those costs. In the present case, there are a range of factors that ACCC is required to take into account.
Telstra refers to East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 239 ALR 50. The factual context was not alien to that of the present case – “a national access regime for gas pipeline systems within the framework of a national competition policy” (headnote, p 50). The facts and legislation are complex. Central to the issue for decision was s 8.10 of the National Third Party Access Code for Natural Gas Pipeline Systems contained in Schedule 2 to the Gas Pipelines Access (South Australia) Act 1997 (SA). Section 8.10 listed in paras (a) to (k) eleven factors that were required to be considered when the initial capital base of certain pipelines was being established by a “Relevant Regulator”.
The High Court held that the Australian Competition Tribunal had not erred in taking as its starting point, and giving priority to, known valuation methodologies identified in the early paragraphs of paras (a) to (k).
The case is not authority for the proposition that para (d), for example, of s 152CR(1) must be accorded priority over the matters identified in the other paragraphs of that subsection. The most that can be said is that the case shows that the correct approach to a list of mandatory relevant considerations can lead to priority properly being given to particular matters in the list.
Subsections (7) to (10) of s 152DNA provide:
(7)In exercising the powers conferred by subsection (1) or (6), the Commission must have regard to:
(a) any guidelines in force under subsection (8); and
(b) such other matters as the Commission considers relevant.(8)The Commission must, by writing, formulate guidelines for the purposes of subsection (7).
(9)The Commission must take all reasonable steps to ensure that the first set of guidelines under subsection (8) is made within 6 months after the commencement of this subsection.
(10) Guidelines under subsection (8) are to be made available on the Internet.
ACCC did formulate guidelines for the purposes of subs (7) as required by subs (8). They are set out in ACCC’s Resolution of telecommunications access disputes – a guide of March 2004 in section 7.4 headed “Backdating”.
The First ID, the Second ID, the DFD and the DFD Consultation Paper, and the Final Determination in relation to the making of charges for disconnections effected by Telstra during the No Charge Period
I referred at [523] to [524] above to the access agreement between Request and Telstra, the failed negotiations for a new arrangement to operate on and from 1 February 2006, and ACCC’s receipt of Request’s notification of the access dispute on 18 April 2006.
In dealing with the access dispute, ACCC made the First ID, the Second ID and the Final Determination, all of which addressed the question of disconnection charges.
The First ID and the Second ID
ACCC provided the First Draft ID and First Draft ID Issues Paper relating only to “LSS connection and disconnection charges” to the parties on 15 September 2006. The parties made submissions in response. ACCC made the First ID and provided the First ID Statement of Reason) on 2 November 2006.
The question of disconnection charges was dealt with in identical terms in cl 12 of the First Draft ID and cl 12 of the First ID. In both cases, cll 12-15 were as follows:
12.Except where the parties subsequently agree otherwise, the following charges are payable by Request to Telstra for the disconnection of a LSS:
(i)for a disconnection that is requested on or before 15 November 2006, in circumstances where the LSS is not being migrated to an ULLS to be supplied to Request, $58 per service;
(ii)for a disconnection that is requested after 15 November 2006, in circumstances where the LSS is not being migrated to an ULLS to be supplied to Request or an order is not placed by an end user or service provider for a new service(s) to be provided on that same copper pair/line within 30 calendar days of the disconnection request being made, $58 per service; or
(iii) for all other disconnections, no charge is applicable.
13.Subject to clause 14, and except where the parties subsequently agree otherwise, other terms and conditions upon which Telstra supplied the LSS to Request at the time of notification are to continue to apply.
14.In the event of any inconsistency between the terms and conditions upon which Telstra supplied the LSS to Request at the time of notification and the intended operation of this interim determination, this interim determination is taken to apply to override any such pre-existing agreement to the extent of any inconsistency.
15.This interim determination shall take effect as and from 2 November 2006 [the First Draft ID stated “[the date it is made]”], and will remain in force for 12 months, unless:
(i) a final determination comes into effect; or
(ii)this interim determination is revoked or taken to be revoked under the Act;
in which case this interim determination will cease to have effect on the day that the relevant event occurs.
Under these provisions there was no backdating (the power to backdate given by s 152DNA is available only in respect of final determinations). Clause 12(i) addressed disconnections requested between 2 and 15 November 2006; and cl 12(ii) addressed disconnections requested after 15 November 2006. In summary, and putting to one side migrations from an LSS to an ULLS (in which a disconnection charge was never applicable), under cl 12(ii) there was to be no charge for disconnections effected after 15 November 2006 if an order was placed for a new LSS over the same line within 30 calendar days of the disconnection request being made.
In both the First Draft ID Issues Paper and in the First ID Statement of Reasons, ACCC stated that the charges had been derived by applying the LSS Pricing Principles and, in particular, their requirement that LSS prices should comprise the forward looking efficient costs of supplying the LSS. In the First Draft ID Issues Paper under the heading “Basis for the proposed disconnection charge terms”, ACCC stated:
The Commission considers that a charge should not be levied for LSS disconnections where the disconnection can be performed in conjunction with a connection of another service on the relevant line. The Commission considers that to charge an additional amount (which the Commission understands is currently $90) to the ‘losing’ disconnection service provider, on top of the connection charge levied to the ‘gaining’ service provider, would be an over-recovery of costs.
This is because when the disconnection is performed as part of the connection of a new service, the incremental or discrete cost of performing the disconnection is so small and incidental to the connection process that it can be deemed to be recovered in the charge for the new connection.
In its final decision on Telstra’s LSS connection/disconnection charges access undertaking (section 6.4.6), the Commission identified a LSS disconnection occasioned by a customer churning the ADSL service to a new provider (including Telstra retail) as being an instance in which the LSS disconnection could be performed in conjunction with a new connection on the line.
The Commission proposes for the purposes of the interim determination that new orders which are received sufficiently proximate to the disconnection request are to be taken to be occasioned by a customer churning the ADSL service, and hence the relevant disconnection is not to be charged for. In this regard, the Commission considers that it is appropriate for a period of 30 calendar days from the date of the request for the disconnection of the LSS to be allowed.
While a period such as this is necessary to facilitate the matching of new orders with an LSS disconnection, were a new order to be received more than 30 calendar days from the date of the disconnection request then it is unlikely that the LSS had been disconnected as part of a customer churn process. A longer period would also appear to have the potential to unduly complicate the order matching process.
The Commission considers that this particular aspect of the proposed LSS disconnection charge terms should only apply to LSS disconnections that are made after 15 November 2006. This is to permit any necessary systems changes to be effected by Telstra so as to coordinate disconnections and connection orders from other service providers. This date has been proposed as it has been previously nominated by the Commission to Telstra as the date by when it would be reasonable for Telstra to have this functionality available.
Another instance in which the disconnection could be performed in conjunction with a new connection on the line is where the LSS disconnection is performed as part of a migration from the LSS to the ULLS (either as part of or outside an MNM).
This material was reproduced in the First ID Statement of Reasons.
The relevant terms of the Second ID (which it will be recalled revoked the First ID and applied as and from 21 December 2006) were found in cl 15. Clauses 15-18 of the Second ID were as follows:
15. Except where the parties subsequently agree otherwise, the following charges are payable by Request to Telstra for the disconnection of a LSS:
(i) for a disconnection that is requested in circumstances where the LSS is not being migrated to an ULLS to be supplied to Request or an order is not placed by an end user or service provider for a new service(s) to be provided on that same copper pair/line within 30 calendar days of the disconnection request being made, $58 per service; or
(ii) for all other disconnections, no charge is applicable.
16. Subject to clause 17, and except where the parties subsequently agree otherwise, other terms and conditions upon which Telstra supplied the LSS to Request at the time of notification are to continue to apply.
17. In the event of any inconsistency between the terms and conditions upon which Telstra supplied the LSS to Request at the time of notification and the intended operation of this interim determination, this interim determination is taken to apply to override any such pre-existing agreement to the extent of any inconsistency.
18. This interim determination shall take effect as and from 21 December 2006, and will remain in force until 2 November 2007, unless:
(i) a final determination comes into effect; or
(ii) the LSS ceases to be a declared service; or
(iii) this interim determination is revoked or taken to be revoked under the Act:
in which case this interim determination will cease to have effect on the day that the relevant event occurs.By the time of the making of the Second ID on 21 December 2006, there was no need for a provision similar to para (i) of cl 12 of the First ID. It was necessary for the Second ID only to repeat para (ii) of cl 12 and only in respect of the period on and from 21 December 2006.
In substance the Second ID Statement of Reasons addressed only the newly introduced annual charges. So far as “connection, cancellation and disconnection charges” were concerned, the Second ID Statement of Reasons merely directed attention to the First ID Statement of Reasons (in fn 1).
The DFD and the DFD Consultation Paper
The DFD proposed that a disconnection charge should only be charged in essentially the same circumstances as those specified in the First ID and the Second ID. The DFD Consultation Paper stated:
The Commission’s preliminary view is that a disconnection charge should not be imposed in respect of disconnections made after 15 November 2006 where an order on the same line is received within 30 days of the disconnection request being made …
The Final Determination in relation to the No Charge Period
In section 4.2.7 of the FD Statement of Reasons ACCC stated:
Until 15 November 2006, charges will be payable on all LSS disconnections, as the Commission considers that it was likely to have been reasonable for a LSS churn process not to be implemented before this time. For the period between 15 November 2006 until the time the final determination takes effect, no disconnection charges will be payable. This maintains the position taken at the interim determination stage in the absence of a Telstra LSS churn process, and Telstra’s advice that in practice those arrangements did not support Telstra applying charges for any LSS disconnections.
The reference to “Telstra’s advice” was a reference to advice provided by Telstra that while the terms of the First ID and the Second ID theoretically permitted it to levy a disconnection charge (after waiting 30 days to ensure no request for a new LSS connection on the same line was received), in practice Telstra had been unable to levy any LSS disconnection charges under either the First ID or the Second ID.
The matters relevant to ACCC’s Final Determination (and the First ID and the Second ID)
As previously observed, s 152CR(1) of the Act sets out matters that ACCC must take into account in making a final determination, while s 152CR(2) provides that in doing so ACCC may take into account any other matters that it thinks are relevant.
In contrast, s 152CR(3) sets out the matters which ACCC may take into account when making an ID. These are the s 152CR(1) matters, and any other matter ACCC considers relevant. There are no mandatory considerations relevant to the making of an ID (other than the LSS Pricing Principles - see below). Section 152CR(4) provides that in making an ID, ACCC does not have a duty even to consider whether to take into account a matter mentioned in s 152CR(1).
Section 152AQA(6), however, requires ACCC to have regard to the LSS Pricing Principles when arbitrating an access dispute. That includes when making an ID, as well as when making a final determination.
The extract from the FD Statement of Reasons set out at [545] shows that ACCC’s reason for adopting cl 5A(i) was simply to continue the regime that it thought had operated in respect of the period after 15 November 2006 under the First ID and the Second ID, with one modification. Taking “Telstra’s advice” that in practice the 30-day waiting period had meant that Telstra had not been able to impose disconnection charges, ACCC simply eliminated all charges for disconnections occurring between 15 November 2006 and the date the Final Determination came into effect.
As noted earlier, ACCC had not been required to take any particular matters into account when making the First ID or the Second ID, and it is plain that it did not take the s 152CR(1) criteria or the LSS Pricing Principles into account when deciding upon cl 5A(i) of the Final Determination. The question for decision, therefore, is simply whether ACCC was required to do so. (As mentioned previously, neither Request nor ACCC advanced arguments that ACCC had taken those matters into account, but rather advanced the argument that ACCC was not required to do so.)
Consideration
The parties’ submissions
According to the construction propounded by Request, ACCC’s determination with respect to the No Charge Period was an exercise of ACCC’s power under s 152DNA(1) to backdate a provision. In deciding whether and how to backdate provisions of a final determination, ACCC was required to have regard only to the factors referred to in s 152DNA(7) (set out at [533] above), and was not required to have regard to those referred to in s 152CR(1).
ACCC characterises the provision with respect to the No Charge Period as a decision not to backdate part of the Final Determination because cl 5A(i) represented a continuation of the status quo ante as it existed in practice. According to ACCC’s submission, s 152DNA(1) allows ACCC to make “consequential orders’ that apply “to” a final determination that are not part of that final determination itself. Therefore, so the argument goes, in exercising the s 152DNA(1) power, ACCC is not required to have regard to the s 152CR(1) criteria which are the matters that ACCC is required to take into account “in making a final determination”.
It follows, according to the submissions of Request and ACCC, that ACCC was not required to test cl 5A(i)’s provision for the No Charge Period against the s 152CR(1) criteria.
Telstra’s submissions, on the other hand, proceed along the following lines.
Clause 5A(i) is a substantive term or condition of the Final Determination. But for it, the disconnection charges applicable during the No Charge Period would have been those specified by the First ID and the Second ID (see [538] and [542] above) or those agreed upon between Telstra and Request. (Telstra notes that there may be some uncertainty as to which of those charges would have applied in the absence of cl 5A(i) but asserts, and I agree, that it is not necessary to decide between the two for present purposes). Clause 5A(i) varies that position by reducing to zero the disconnection charge payable during the No Charge Period.
Had a decision been made not to “backdate” the Final Determination with respect to disconnection charges, it would have been those charges in the First ID and Second ID or as agreed between Telstra and Request that would have applied. Had a decision been made, on the other hand, to “backdate” a provision of the Final Determination, the disconnection charges applicable in respect of the period from 15 November 2006 to 22 August 2007 would have been the charge specified in the last line of the table in cl 5 of the Final Determination. Clause 5A(i) is therefore simply one of the provisions of the Final Determination with respect to the terms and conditions of access (specifically, disconnection fees) for the No Charge Period. It is substantively different from both the disconnection fees that previously applied during that period and from the disconnection fees fixed by cl 5.
The correct characterisation of the Final Determination with respect to the No Charge Period is therefore, according to Telstra, that the Final Determination retrospectively varied the terms and conditions of access existing between the parties in relation to the matter of disconnections, and it is not merely an exercise of the power to backdate a provision of the Final Determination given by s 152DNA(1). In determining on cl 5A(i), ACCC was exercising both the power in s 152CP to make a determination on access, to which the s 152CR criteria applied, and the power given by s 152DNA(1) to apply that provision retrospectively.
In relation to the matters to which ACCC must have regard in exercising the backdating power in s 152DNA(1), Telstra acknowledges that s 152DNA(7) specifies criteria to which ACCC must have regard. However, Telstra submits that in the context of Pt XIC, other mandatory relevant considerations also apply.
First, ACCC must have regard to the LSS Pricing Principles if “it is required to arbitrate an access dispute under Division 8 in relation to the declared service” (s 152AQA(6)). The LSS Pricing Principles apply to any aspect of an arbitration under Div 8, including the exercise of the power to backdate.
Second, in exercising the discretion under s 152DNA(7)(b), ACCC must take into account relevant considerations that ACCC is required to take into account in the light of the subject matter, scope and purpose of the Act (citing Peko-Wallsend at 39-40 in support of this proposition). True backdating under s 152DNA(1) is merely adjectival to the making of a final determination under s 152CP and ACCC is required to take into account the matters specified in s 152CR(1) both when making the final determination and when exercising its discretion in respect of backdating that determination. According to Telstra, if this were not so, backdating could undermine ACCC’s findings and its balancing of the matters identified in s 152CR(1).
Resolution
In my opinion, cl 5A(i) was not merely an exercise of the backdating power to which s 152DNA(7) applied, and s 152CR(1) and s 152AQA(6) did not apply.
There is a distinction between the backdating power contained in s 152DNA(1) and the power to decide upon the substantive provisions of a final determination that is recognised in s 152CR(1) and (2) on the one hand, and s 152DNA(7) on the other. The latter is addressed to substantive provisions which it assumes have been decided upon following the application of the s 152CR(1) and (2) criteria.
Section 152DNA(1) is addressed to provisions of a final determination that take effect prospectively, that is to say, from the time when the final determination has effect (21 days after it is made – see s 152DN) and it allows ACCC to express those provisions to have taken effect on a specified earlier date.
This construction is consistent with the objective of s 152DNA(1) as stated in the Supplementary Explanatory Memorandum for the Telecommunications Legislation Amendment Bill 1998 (Cth) (p 33), namely, that the provision was intended to:
... encourage commercial agreement and co-operation during access arbitrations by removing incentives for delay and to ensure a considered and reasonable outcome is ultimately applied to the interim period which may otherwise be covered by an interim determination or a commercial agreement which one or more parties may be disputing.
The backdating provision reflects an assumption that in a perfect world, the final determination would have been made when the parties to the access dispute commenced their negotiation, or that at that time they would have reached agreement on the terms and conditions which came to be those of the final determination. Neither party should benefit from the passing of time between the commencement of negotiations and the date on which the final determination takes effect.
This limited adjectival nature of the power to backdate explains why s 152DNA(7) imposes less stringent requirements than does s 152CR(1).
Paragraph (i) of cl 5A, however, does not fit the notion of a mere backdating of a substantive provision in relation to which the ss 152CR(1) and the LSS Pricing Principles have already been taken into account. Rather, para (i) of cl 5A is a substantive provision in respect of a period preceding the coming into effect of the Final Determination different from any substantive provision governing disconnections occurring after the Final Determination came into effect.
Nor does cl 5A(i) reflect a decision of ACCC not to backdate the Final Determination, since it provides for a disconnection charge regime different from that otherwise applicable during the No Charge Period.
Telstra’s Grounds 10(a), 10(b) and 10(c) are made out by reason of ACCC’s failure to take into account the s 152CR(1) criteria and the LSS Pricing Principles as required by s 152AQA(6) of the Act, when deciding upon the retrospectively operating cl 5A(i).
Since I have found that cl 5A(i) was not solely an exercise of ACCC’s power under s 152DNA(1), I need not deal with Telstra’s submissions in relation to the other mandatory considerations that apply to ACCC’s exercise of that power (see [559]ff above).
I certify that the preceding five-hundred and seventy-one (571) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 19 September 2008
Telstra Corporation Ltd v ACCC and Request Broadband Pty Ltd (NSD 1744 of 2007)
Counsel for the Applicant: Dr J E Griffiths SC and Ms M Allars Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the First Applicant: Mr J S Hilton SC and Mr S J Free Solicitor for the First Applicant: Australian Government Solicitor Counsel for the Second Applicant: Mr N J O’Bryan SC and Mr M J Hoyne Solicitor for the Second Applicant: Herbert Geer & Rundle
Date of Hearing: 3, 4, 5, 6, 7 December 2007, 4 March 2008 Date of Judgment: 19 September 2008 Telstra Corporation Ltd v ACCC and Primus Telecommunications Pty Ltd
(NSD 1743 of 2007)
Counsel for the Applicant: Dr J E Griffiths SC and Ms M Allars Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the First Applicant: Mr J S Hilton SC and Mr S J Free Solicitor for the First Applicant: Australian Government Solicitor Counsel for the Second Applicant: Mr N J O’Bryan SC and Mr M J Hoyne Solicitor for the Second Applicant: Herbert Geer & Rundle
Date of Hearing: 3, 4, 5, 6, 7 December 2007, 4 March 2008 Date of Judgment: 19 September 2008
Telstra Corporation Ltd v ACCC and Chime Communications Pty Ltd
(NSD 1560 of 2007)
Counsel for the Applicant: Dr J E Griffiths SC and Ms M Allars Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the First Applicant: Mr J S Hilton SC and Mr S J Free Solicitor for the First Applicant: Australian Government Solicitor Counsel for the Second Applicant: Mr N J O’Bryan SC and Mr M J Hoyne Solicitor for the Second Applicant: Herbert Geer & Rundle
Date of Hearing: 3, 4, 5, 6, 7 December 2007, 4 March 2008 Date of Judgment: 19 September 2008 Acronyms and Terms
2007 LSS Pricing Principles
Pricing principles made by ACCC pursuant to s 152AQA of the Act in October 2007 (set out in Ch 3 of the Review of LSS Final Decision).
ACCC
Australian Competition and Consumer Commission, the first respondent (also referred to as the Commission).
ACCC SC model
Cost model in respect of specific costs developed by ACCC, sent to the parties on 30 March 2007.
Access Pricing Principles guide
ACCC’s Access Pricing Principles – Telecommunications: a guide published in July 1997.
Access provider
Carrier or carriage service provider that supplies declared services to itself or other persons – see s 152AR of the Act.
Access seeker
Service provider that makes, or proposes to make, a request for access to a declared service under s 152AR of the Act.
Act
Trade Practices Act 1974 (Cth)
Adam
Adam Internet Pty Ltd
Adam FD Statement of Reasons
Statement of ACCC’s reasons for making the Adam Final Determination which accompanied the Adam Final Determination.
Adam Final Determination
The written determination on access to the LSS made by ACCC on 20 December 2007 in relation to the arbitration between Adam and Telstra.
ADC
Access Deficit Contribution
ADJR Act
Administrative Decisions (Judicial Review) Act 1977 (Cth)
ADSL
Asymmetric Digital Subscriber Line. A compression technology that supports high speed digital services over conventional copper telephone lines.
Broadband
Imprecise, but often used to refer to telecommunications capable of providing multiple channels of data over a single communications medium, typically using some form of frequency or wave division multiplexing.
CAN
Customer Access Network. The portion of the PSTN which comprises the transmission system connecting customers to an aggregation point within the network (usually a local exchange building). In Australia, that connection is normally achieved by copper wire pairs.
CCA
Current Cost Accounts maintained under the RKR.
CD
Compact Disc
Chime
Chime Communications Pty Ltd, the second respondent in proceeding NSD 1560 of 2007.
Churn
The transfer of a telecommunications customer from one provider to another, such as from Telstra to Request or from Request to Chime or from Primus to Telstra. The “Telstra LSS churn process” was defined in para 8 of Schedule 2 to the Final Determination to be “a Telstra process by which services can be transferred between LSS, and between LSS and DSL services”.
DFD
Draft Final Determination provided by ACCC to Telstra and Request on 30 March 2007.
DFD Consultation Paper
Consultation paper provided by ACCC to Telstra and Request on 30 March 2007 which set out issues on which ACCC sought submissions.
DSL
Digital Subscriber Line. DSL services are provided over the high frequency spectrum of a ULL.
End-user
Retail customer
FD Statement of Reasons
Statement of ACCC’s reasons for making the Final Determination which accompanied the Final Determination.
Final Determination
The written determination on access to the LSS made by ACCC on 1 August 2007 (with effect from 22 August 2007 and expiring on 31 December 2007) in relation to the arbitration between Request and Telstra.
First Draft ID ACCC’s draft ID in respect of LSS connection and disconnection charges provided to the parties with the First Draft ID Issues Paper and associated papers on 15 September 2006. First Draft ID Issues Paper Issues paper accompanying the First Draft ID. First ID ACCC’s ID in respect of LSS connection and disconnection charges of 2 November 2006. First ID Statement of Reasons ACCC’s reasons in support of the First ID. GST
Goods and Services Tax
ID
Interim determination made under s 152CPA of the Act.
LCS
Local Carriage Service
Local loop
Line between end-user’s premises and a local exchange.
LSS
Line Sharing Service (also known as the High Frequency Unconditioned Local Loop Service). The LSS was defined in the LSS Declaration Final Report (set out at [52] in these reasons).
LSS Declaration
Declaration of LSS as a declared service with effect on 16 October 2002. With effect from 3 December 2003, the LSS Declaration was extended to 31 October 2007. With effect from 29 October 2007, the LSS Declaration was further extended to 31 July 2009.
LSS Declaration Final Report
ACCC’s Line Sharing Service: Final Decision on whether or not a Line Sharing Service should be declared under Pt XIC of the Trade Practices Act 1974 published in August 2002 following ACCC’s inquiry into whether or not an LSS should be declared under Pt XIC of the Act.
LSS Pricing Principles
Pricing principles determined by ACCC in relation to the LSS pursuant to s 152AQA of the Act (set out in Ch 7 of the LSS Declaration Final Report).
LSS Undertaking Final Report
ACCC’s A final report on the assessment of Telstra’s undertaking for the Line Sharing Service published in August 2004
LSS Undertakings Discussion Paper ACCC’s Telstra’s Undertakings for the Line Sharing Service – Discussion Paper published in March 2005.
LTIE
Long-term interests of end-users. The object of Pt XIC of the Act is to promote the LTIE (s 152AB(1)) and the LTIE is a matter that ACCC must take into account in making a final determination in resolution of a dispute over access to a declared service (s 152CR(1)(a)).
Mallesons
Mallesons Stephen Jaques, solicitors for Telstra
MNM
Managed Network Migration. In Schedule 2 to the Final Determination, a Managed Network Migration was defined to be “the transfer or migration of services that is achieved by the project management by Telstra of a coordinated cancellation and connection of services”.
Narrowband
A reference to the low frequency spectrum or voiceband frequency spectrum.
Primus
Primus Telecommunications Pty Ltd, the second respondent in proceeding NSD 1743 of 2007
PSTN
Public Switched Telephone Network. The switched telephone telecommunications network to which public customers can be connected. The infrastructure for basic telecommunications services (including telephones, switches, local and trunk lines, and exchanges). It enables any customer to call and communicate with any other customer.
Request
Request Broadband Pty Ltd, the second respondent in proceeding NSD 1744 of 2007
Review of LSS Final Decision
ACCC’s Review of the Line Sharing Service Declaration – Final Decision published in October 2007 following an inquiry pursuant to s 152ALA(7) of the Act as to whether the LSS Declaration should be extended, revoked or varied.
RKR
Record Keeping Rules made by ACCC under Div 6 of Pt XIB of the Act.
RMAC
Retail-minus avoidable cost. A pricing methodology that uses a “top-down” approach, in contrast with a “bottom-up” approach used by a TSLRIC methodology (and its variants).
SAOs
Standard Access Obligations provided for in s 152AR of the Act.
Second Draft ID ACCC’s draft ID in relation to LSS periodic charges provided to the parties with the Second Draft ID Issues Paper and associated papers on 6 October 2006.
Second Draft ID Issues Paper Issues paper accompanying the Second Draft ID. Second ID ACCC’s ID, which revoked the First ID and reproduced it and as well dealt with LSS periodic charges, of 21 December 2006.
Second ID Statement of Reasons
ACCC’s reasons in support of the Second ID. SIO
Service in operation
Telephony
A generic term describing voice telecommunications.
Telstra
Telstra Corporation Ltd, the applicant.
TFP
Total Factor Productivity
Tribunal
Australian Competition Tribunal
Tribunal’s 2006 Decision
Telstra Corporation Limited [2006] ACompT 4. Decision of the Tribunal affirming ACCC’s decision to reject Telstra’s proffered LSS access undertaking.
TSLRIC
Total Service Long-Run Incremental Cost. TSLRIC was explained in the Access Pricing Principles guide and the LSS Pricing Principles.
TSLRIC+
TSLRIC plus a contribution to indirect and overhead costs.
TSLRIC++
TSLRIC+ plus an additional amount as an ADC.
ULL
Unconditioned Local Loop. The bare or unqualified wire between the end-user’s premises and the local exchange. The LSS and the ULLS are both provided over the ULL.
ULLS
Unconditioned Local Loop Service
ULLS and LLS Undertakings Draft Decision
ACCC’s Assessment of Telstra’s ULLS and LSS Monthly Charge Undertakings – Draft Decision published in August 2005. ULLS and LSS Undertakings Final Report
ACCC’s Assessment of Telstra’s ULLS and LSS monthly charge undertakings published in December 2005. ULLS Undertakings Discussion Paper
ACCC’s Telstra’s Undertaking for the Unconditioned Local Loop Service – Discussion Paper published in March 2005. WACC
Weighted Average Cost of Capital. A reference to the cost to Telstra of attracting equity and loan capital investment in its business.
WLR
Wholesale Line Rental service
xDSL
The “family” of DSL services, including ADSL services.
CHRONOLOGY OF EVENTS
REQUEST/CHIME/PRIMUS ACCESS DISPUTES
DATE
PROCEEDING
EVENT
July 1997
COMMON
ACCC Access Pricing Principles, Telecommunications - a guide.
Aug 2002
COMMON
ACCC Final Decision on whether or not a Line Sharing Service should be declared under Part XIC of the Trade Practices Act 1974 (incorporating Pricing Principles for a declared LSS).
16 Oct 2002
COMMON
Notification of LSS Declaration dated 7 October 2002 in Government Gazette.
19 Nov 2003
COMMON
Determination that LSS Declaration expires on 31 October 2007 (incorporating ACCC’s Expiry Dates for Declared Services dated June 2003).
August 2004
COMMON
ACCC Final report on the assessment of Telstra’s undertaking for the Line Sharing Service.
October 2004
COMMON
ACCC Assessment of Telstra’s undertakings for PSTN, ULLS and LCS, Draft Decision.
21 Dec 04
PRIMUS
Notification of Access Dispute.
March 2005
COMMON
ACCC Discussion Paper on Telstra’s undertaking for LSS.
March 2005
COMMON
ACCC Discussion Paper on Telstra’s undertaking for ULLS.
18 April 2005
PRIMUS
Letter from Telstra enclosing Telstra’s submissions on terms and conditions of a Final Determination.
August 2005
COMMON
ACCC Assessment of Telstra’s ULLS and LSS Monthly Charge Undertaking - Draft Decision.
28 Nov 05
CHIME
Notification of Access Dispute.
December 2005
COMMON
ACCC Final Decision on assessment of Telstra’s ULLS and LSS monthly charge undertakings.
3 Feb 06
CHIME
Amended notification of Access Dispute.
13 April 06
REQUEST
Notification of Access Dispute.
2 June 2006
COMMON
Australian Competition Tribunal decision on Telstra’s LSS monthly charge undertaking Telstra Corporation Limited [2006] A CompT 4.
12 Jul 06
PRIMUS
Letter from ACCC enclosing Interim Determination (“ID”) and statement of reasons.
2 Nov 06
REQUEST
Letter from ACCC enclosing ID and statement of reasons.
21 Dec 06
CHIME
Letter from ACCC enclosing ID and statement of reasons.
21 Dec 06
REQUEST
Letter from ACCC enclosing revocation of ID dated 2 November 2006 and a new ID and statement of reasons.
2 March 2007
COMMON
ACCC Determination to hold joint arbitration hearing on common issues in dispute in respect of Chime, Request and Primus access disputes.
6 Mar 07
REQUEST, CHIME
Letter from ACCC to parties regarding procedure prior to final determination.
7 Mar 07
PRIMUS
Letter from ACCC to parties regarding procedure prior to final determination.
19 March 2007
CHIME
PRIMUSLetters from ACCC to Chime and Primus providing documents relevant to the arbitration on disc.
28 Mar 07
REQUEST
Letter from ACCC to Request providing documents relevant to the arbitration on disc.
30 Mar 07
COMMON
Letter from ACCC to parties enclosing:
Draft Final Determination (DFD);
DFD Consultation Paper;
orders; and
ACCC cost models.27 Apr 07
COMMON
Letter from Telstra to ACCC requesting permission to provide submissions and primary attachments by email, followed by delivery of a supplementary CD.
30 Apr 07
COMMON
Letter from ACCC to Telstra accepting this proposal.
4 May 07
CHIME
Chime’s submissions regarding Draft FD.
4 May 07
REQUEST
Request’s submissions regarding Draft FD.
4 May 07
PRIMUS
Primus’ submissions regarding Draft FD.
5 May 07
CHIME
5 emails from Mallesons attaching Telstra’s submissions on Draft FD, namely letter dated 4 May 2007, attaching Telstra’s submissions on Draft FD and primary attachments.
5 May 07
REQUEST
6 emails from Mallesons attaching Telstra’s submissions on Draft FD, namely letter dated 4 May 2007, attaching Telstra’s submissions on Draft FD, and primary attachments.
5 May 07
PRIMUS
2 emails from Mallesons attaching Telstra’s submissions on Draft FD, namely, letter dated 4 May 2007, attaching: Telstra’s submissions on Draft FD, and primary attachments.
7 May 07 (on or around)
CHIME
ACCC receives by courier letter from Telstra, dated 4 May 2007, enclosing supplementary disc of supporting materials.
7 May 07 (on or around)
REQUEST
ACCC receives by courier letter from Telstra dated 4 May 2007, enclosing supplementary disc of supporting materials.
7 May 07 (on or around)
PRIMUS
ACCC receives by courier letter from Telstra dated 4 May 2007, enclosing supplementary disc of supporting materials.
8 May 07
CHIME, REQUEST
Telstra’s supplementary submissions on WACC.
14 May 07
PRIMUS
Primus’ reply submissions on the Draft FD.
14 May 07
PRIMUS
Telstra’s submissions in reply to Primus submissions on the Draft FD (sent by email on 15 May 2007).
18 May 07
CHIME
Telstra’s submissions in reply to Chime submissions on the Draft FD (sent by email on 18 May 2007).
18 May 07
CHIME
Chime’s reply submissions on Draft FD.
18 May 07
REQUEST
Telstra’s submissions in reply to Request on the Draft FD including index of supporting material relied on by Telstra (sent by email on 18 May 2007).
21 May 07
REQUEST
Request’s reply submissions on Draft FD.
25 May 07
COMMON
ACCC internal minute re Request, Chime, Primus LLS access disputes.
30 May 07
CHIME
Letter from Telstra to ACCC regarding Chime’s submissions in reply.
30 May 07
CHIME
Letter from Chime to ACCC, regarding Telstra’s letter of 30 May 2007.
5 Jun 07
COMMON
Letter from Telstra to ACCC.
13 Jun 07
COMMON
Letter from ACCC to parties in response to Telstra’ s letters of 5 June 2007.
19 Jun 07
COMMON
Letter from Telstra to ACCC regarding (inter alia) confirmation of documents to which ACCC will have regard.
6 Jul 07
CHIME, REQUEST
Telstra’s addendum to supplementary submissions on WACC.
12 Jul 07
CHIME
Letter from ACCC to parties enclosing Final Determination (“FD”).
1 Aug 07
REQUEST
Letter from ACCC to parties enclosing FD and statement of reasons.
1 Aug 07
PRIMUS
Letter from ACCC to parties enclosing FD and statement of reasons.
Oct 07
COMMON
Final Decision: Review of the Line Sharing Service.
26 Oct 07
COMMON
Extension of Declaration Expiry Date under s 152ALA (in Government Gazette).
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