Untitled document
A Code of Access to Telecommunications
Transmission Towers, Sites of Towers
and Underground Facilities
A Code of Access to Telecommunications
Transmission Towers, Sites of Towers
and Underground Facilities
October 1999
© Commonwealth of Australia 1999
ISBN 0 642 40225 6
This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Australian Competition and Consumer Commission. Requests and inquiries concerning reproduction and rights should be addressed to the Director Publications, Australian Competition and Consumer Commission, PO Box 1199, Dickson ACT 2604.
Contents
Main Code
1. Introduction, background and scope ………………………………………. 1
1.1 Preliminary …………………………………………………………………… 2
1.2 Scope and application of the Code …………………………………………… 2
2. Mandatory conditions of access ……………………………………………….... 5
2.1 Confidential information - All Carriers ……………………….……………… 5
2.2 Non-discriminatory access to facilities …………………………….………… 8
2.3 Queuing policy …………………………………………………………..…… 8
2.4 Dispute resolution - the giving of access …………………………………..… 9
2.5 Dispute resolution - implementation of access …………………………….… 10
3. Applying for facilities access ……………………………………………………. 11
3.1 Information Package ………………………………………..……………… 11
3.2 Other information requirements ……………………………..……….…… 12
3.3 Proper Officer ………………………………………………………….…… 13
3.4 Facilities Access Applications ……………………………………….…… 14
3.5 Forecast information ………………………………………………….…… 14
4. Negotiating facilities access …………………………………………………….. 15
4.1 General ……………………………………………………………….……… 15
4.2 Master Access Agreement …………………………………………………… 15
4.3 Financial matters …………………………………………………………….. 17
4.4 Performing Make Ready Work ……………………………………………… 19
4.5 Co-location Consultation Process …………………………………………… 21
5. Implementing facilities access ………………………………………………..… 25
5.1 Maintenance of Eligible Facility and Equipment ………………………….… 25
5.2 Emergency work …………………………………………………………….. 25
5.3 Replacement of Equipment ………………………………………………….. 26
5.4 Interference with Equipment ………………………………………………… 27
5.5 Indemnity against property damage …………………………………………. 28
5.6 Third Party User Equipment ………………………………………………… 29
5.7 Suspension of access ………………………………………………………… 29
5.8 Termination of access ……………………………………………………….. 30
5.9 Native Title ………………………………………………………………….. 35
6. Glossary and interpretation ……………………………………………………. 37
6.1 Glossary ……………………………………………………………………… 37
6.2 Interpretation ………………………………………………………………… 43
Annexure A: Telecommunications
transmission towers and sites of towers
Part 1: Preliminary assessment of access ……………………………………….. 45
1.1 Exchange of information ……………………………………………………. 45
1.2 Physical access ……………………………………………………………… 46
Part 2: Facilities access application ……………………………………………… 48
2.1 Lodgement of Facilities Access Application ……………………………….. 48
2.2 Assessment of Facilities Access Application ………………………………. 51
2.3 Proposal to reject a Facilities Access Application ………………………….. 51
2.4 Acceptance of a Facilities Access Application …………………………….. 52
Part 3: Termination of tower access ……………………………………………. 54
3.1 Standard term of access ……………………………………………………. 54
3.2 Termination by First Carrier ……………………………………………….. 54
3.3 Termination by Second Carrier ……………………………………………. 55
SCHEDULE A1: ACCESS PROCEDURE —
FIRST CARRIER PERFORMS MAKE READY WORK ……………….…. 56
1 Conduct of a Detailed Field Study …………………………………………. 56
2 Time extension for the conduct of a Detailed
Field Study ……………………………………………………………….…. 58
3 Order for access by Second Carrier ………………………………………… 59
4 Response to Order for access ………………………………………………. 60
5 Delivery of access ………………………………………………………….. 61
6 Variation of Make Ready Work ……………………………………………. 61
7 Cancellation and variation of accepted Orders …………………………….. 62
8 Installation of Equipment by Second Carrier ………………………………. 63
9 Completion inspection ……………………………………………………… 63
SCHEDULE A2: ACCESS PROCEDURE —
SECOND CARRIER PERFORMS MAKE READY WORK ………………. 64
Part 1: Access to existing tower and/or tower site …………………………….. 64
1.1 Construction and Work Plan ………………………………………………… 64
1.2 Permits and approvals ………………………………………………………. 65
1.3 Conduct of Make Ready Work ……………………………………………… 66
1.4 Completion inspection ………………………………………………………. 67
Part 2: Access to a new or replacement
PMTS tower and/or tower site ………………………………………….. 68
2.1 Property rights ………………………………………………………………. 68
2.2 Construction and Work Plan ………………………………………………… 68
2.3 Conduct of Make Ready Work ……………………………………………… 70
2.4 Completion inspection ……………………………………………………..... 71
Annexure B: Underground facilities
Part 1: Preliminary assessment of access ……………………………………….. 73
1.1 Exchange of information …………………………………………………..... 73
1.2 Physical Access ……………………………………………………………… 74
Part 2: Facilities access application ……………………………………………… 76
2.1 Lodgement of Facilities Access Application ……………………………….. 76
2.2 Assessment of Facilities Access Application ……………………………….. 78
2.3 Proposal to reject an application …………………………………………..... 79
Part 3: Termination of access ……………………………………………………... 80
3.1 Standard term of access ……………………………………………………... 80
3.2 Termination by First Carrier ………………………………………………… 80
3.3 Termination by Second Carrier ……………………………………………… 81
SCHEDULE B1: ACCESS PROCEDURE —
FIRST CARRIER PERFORMS MAKE READY WORK …………………. 82
1 Conduct of a Detailed Field Study …………………………………………. 82
2 Time Extension for the conduct of a Detailed
Field Study …………………………………………………………………. 84
3 Order for access by Second Carrier ………………………………………… 85
4 Response to Order for access ………………………………………………. 86
5 Delivery of Access …………………………………………………………. 87
6 Variation of Make Ready Work ……………………………………………. 87
7 Cancellation and variation of accepted Orders …………………………….. 88
8 Installation of Equipment by Second Carrier ……………………………..... 89
9 Completion Inspection ……………………………………………………… 89
SCHEDULE B2: ACCESS PROCEDURE —
SECOND CARRIER PERFORMS MAKE READY WORK ……………… 90
Access to existing underground facility ………………………………………… 90
1 Construction and Work Plan ……………………………………………….. 90
2 Permits and approvals ……………………………………………………… 92
3 Conduct of Make Ready Work …………………………………………….. 93
4 Completion Inspection ……………………………………………………... 94
Chapter 1
Introduction, background and scope
Background to Facilities Access Code
Part 5 of Schedule 1 of the Telecommunications Act 1997 (Part 5)
provides for Carriers to provide other Carriers with access
to telecommunications transmission towers, the sites
of telecommunications transmission towers and eligible
underground facilities.
Clause 37 of Part 5 empowers the Australian Competition and
Consumer Commission to make a code which sets out conditions
that are to be complied with in relation to the provision of access
under Part 5.
The Code is designed to encourage the co-location of facilities,
where reasonably practicable, and promote competition
by facilitating the entry of new mobile and fixed line operators.
The Explanatory Statement to the Code provides a detailed
introduction to and background information on the Code.
Simplified outline of the code
The Code is divided into six chapters and includes two Annexures
(A and B). The Chapters of the main code deal with the following:
Chapter 1 — introduction, scope and application of the code
Chapter 2 — mandatory conditions of access
Chapter 3 — general procedures concerning applying for
facilities access
Chapter 4 — general procedures for negotiating a facilities
access agreement
Chapter 5 — general procedures governing the implementation
of access
Chapter 6 — glossary of terms and interpretation
Annexure A establishes administrative and operational procedures
which specifically apply to telecommunications transmission
towers and sites of towers. Annexure B establishes the
administrative and operational procedures which specifically
apply to underground facilities.
1.1 Preliminary
1.1.1 Citation
This Code is called A Code of Access to Telecommunications
Transmission Towers, Sites of Towers and Underground Facilities.
For ease of reference, the Code may also be referred to as the
Facilities Access Code.
1.1.2 Commencement
This Code shall take effect on the date specified in the
Commonwealth of Australia Government Notices Gazette.
1.1.3 Variations
(1) From time to time, the provisions of the Code may be varied
by the ACCC.
(2) Carriers will be notified of variations to the Code before the
date of effect of such variations.
1.1.4 Review
The ACCC may review the Code at any time, for example,
in response to changes in relevant legislation, licence conditions
or lawful directions made by any Minister.
1.2 Scope and application of the Code
1.2.1 Facilities
The Code applies to the facilities specified in Part 5. For ease
of reference, these facilities are collectively referred to as Eligible
Facilities throughout the Code.
Note: see Chapter 5 for a full definition of Eligible Facilities.
1.2.2 Agreements
(1) Subject to sub-clause 1.2.2(2)-(4), a First and Second Carrier
may agree, in writing that particular conditions of access to
Eligible Facilities will prevail over those set out in the Code.
(2) Pursuant to sub-clause 1.2.2(1), such an agreement must
specify which provisions of the Code are to be displaced
by conditions of access of that agreement.
(3) Clauses contained in Chapter 2 of the main Code apply
notwithstanding any agreement to the contrary.
(4) A bi-lateral agreement made pursuant to sub-clause 1.2.2(1)
cannot displace multi-lateral obligations imposed on Carriers
by the Code.
1.2.3 Timeframes
(1) The timeframes for particular processes associated with
the provision of access, as set out in the Code, must apply
unless a Carrier considers it would not be reasonably
practicable for it to comply with the specified timeframes.
In these circumstances, Carriers must make reasonable
endeavours to agree to amended timeframes.
(2) Carriers must engage in dispute resolution, as set out in
Chapter 2 of the main Code, if agreement cannot be reached
on amended timeframes.
Chapter 2.
Mandatory conditions of access
2.1 Confidential information — all Carriers
(1) Subject to sub-clause 2.1(4) and any statutory duties, a First
Carrier must keep confidential all Confidential Information
of the Second Carrier and a Second Carrier must keep
confidential all Confidential Information of the First Carrier
which:
(a) is disclosed, communicated or delivered to it in
connection with an application or agreement relating
to access to Eligible Facilities; or
(b) comes to its knowledge or into its possession in
connection with such an application or agreement;
and must not:
(c) use or copy such Confidential Information except for
the purposes of this Code; or
(d) disclose or communicate, cause to be disclosed
or communicated or otherwise make available such
Confidential Information to any third person.
(2) Information generated about a First or Second Carrier’s
network or facilities as a result of, or in connection with,
the provision of access to facilities is the Confidential
Information of that Carrier.
(3) Subject to sub-clause 2.1(4), Confidential Information
obtained by a First Carrier about a Second Carrier’s facilities
and Confidential Information obtained by a Second Carrier
about a First Carrier’s facilities must only be:
(a) used for the technical purpose of undertaking work
necessary to allow for facilities access or as required by
the ACA, the ACCC or an independent expert appointed
in accordance with this Code; and
(b) as far as is reasonably practical, used by technical and
related personnel directly involved in the facilities
access task or in accordance with sub-clause 2.1(4).
(4) A First or Second Carrier (Disclosing Carrier) may disclose
the Confidential Information of a Second or First Carrier
(Other Carrier) respectively:
(a) to those of its directors, officers, employees, agents and
representatives to whom the Confidential Information is
reasonably required to be disclosed for the purposes of
a facilities access application or agreement; and
(b) to any professional person acting for the Disclosing
Carrier to the extent necessary to permit that person to
protect or advise on the rights of the Disclosing Carrier
in respect of the obligations of the Disclosing Carrier
under a facilities access agreement; and
(c) in connection with legal proceedings, arbitration, expert
determination and other dispute resolution mechanisms
or for the purpose of seeking advice from a professional
person in relation thereto; and
(d) as required by law provided that the Disclosing Carrier
has first notified the Other Carrier that it is required to
disclose the Confidential Information so that the Other
Carrier has an opportunity to protect the confidentiality
of its Confidential Information; and
(e) as required by the listing rules of any stock exchange
where a Disclosing Carrier’s securities are listed or
quoted; and
(f) with the consent of the Other Carrier; and
Note: Sub-clause 2.1(6) provides that a condition of consent may be the
acceptance of confidentiality obligations by the person to whom the
Confidential Information is disclosed.
(g) in accordance with a lawful and binding direction
issued by the ACA or the ACCC or any Minister; and
(h) if reasonably required to protect the safety of personnel
or equipment; and
(i) as required by this Code.
(5) First and Second Carriers must establish and observe
procedures adequate to protect the Confidential Information
of the other First or Second Carrier with which it is engaged
in relation to facilities access and must ensure that each of
its directors, officers, employees, agents and representatives
to whom that Confidential information is disclosed,
in connection with a facilities access application or
agreement, is subject to and maintains the confidentiality
obligations of this clause.
(6) If required by the Other Carrier, as a condition of it giving its
consent to the disclosure of the Confidential Information of
that Other Carrier, the Disclosing Carrier, before disclosing
Confidential Information to a third person (the disclosee),
must:
(a) impose an obligation upon the disclosee:
(i) to use the Confidential Information disclosed solely
for the purposes for which the disclosure is made
and to observe appropriate confidentiality
requirements in relation to such information; and
(ii) not to disclose the Confidential Information without
the prior written consent of the Disclosing Carrier;
and
(b) obtain an acknowledgment from such a disclosee that:
(i) the Confidential Information is, and at all times
remains, proprietary to the Other Carrier; and
(ii) misuse or unauthorised disclosure of the
Confidential Information will cause serious harm
to the Other Carrier
unless disclosure is made to a third party which is the
Commonwealth or a State Government or a statutory
authority in compliance with a requirement imposed
by statute.
(7) First and Second Carriers must cooperate to:
(a) protect the confidentiality of the other Carrier’s
Confidential Information; or
(b) enforce rights in relation to its Confidential Information.
(8) Confidential Information provided by a First or Second
Carrier to the other Carrier with which it is engaged in
relation to facilities access is provided for the benefit of that
other Carrier only. First and Second Carriers must
acknowledge that no warranty is to be given by a Disclosing
Carrier that Confidential Information is or will be correct.
2.2 Non-discriminatory access to Eligible
Facilities
(1) Carriers must, in relation to the provision of access to
Eligible Facilities, as far as practicable, treat other Carriers
on a non-discriminatory basis. For a First Carrier, this would
include taking all reasonable steps to ensure that, as far as
practicable, having regard to its legitimate business interests
and the interests of third parties, that the Second Carrier
receives timely provision of access that is equivalent to that
which the First Carrier provides to itself.
(2) The non-discrimination principles referred to in
sub-paragraph 2. 2(1) do not apply to the extent that it is not
reasonably practicable for parties to receive equivalent
access. In such circumstances, the First Carrier must ensure
that access is provided in a manner consistent with the
queuing policy principles set out in clause 2.3 of the main
Code.
(3) The non-discrimination principles are not intended to limit
a Second Carrier’s ability to obtain, on request, access of
a lower quality than that which the First Carrier provides
to itself, subject to technical feasibility.
(4) The non-discrimination principles are not intended to limit
a Second Carrier’s ability to obtain, on request, access of
a superior quality than that which the First Carrier provides
to itself, provided always that the First Carrier will not be
required to accept such a request.
2.3 Queuing policy
(1) The First Carrier must develop a queuing policy for
applications for the supply of access to an Eligible Facility.
(2) Subject to the legislative requirements of Part 5 to provide
access to Second Carriers, the queuing policy must include
the First Carrier’s applications and orders.
(3) The queuing policy must be consistent with the following
principles:
(i) the queuing policy of the First Carrier must be
non-discriminatory; and
(ii) subject to paragraph (i) above, the First Carrier must
seek to maximise the efficiency of its queuing policy.
(4) The queuing policy must apply to a First Carrier’s :
(i) review of applications before being accepted or
rejected; and
(ii) its fulfilment of accepted Facilities Access Applications.
(5) The First Carrier must, within five Business Days of receipt
of a Facilities Access Application, notify the Second Carrier
of its acceptance on a queue in relation to its review
of applications.
(6) The queuing policy must provide that a Second Carrier
may prescribe the order in which applications placed
simultaneously by it with the First Carrier should be treated
in a queue.
2.4 Dispute Resolution — the giving of access
(1) In the event that a dispute arises in negotiations over the
terms and conditions of a Master Access Agreement or over
access to a particular Eligible Facility (or Facilities), Carriers
must engage in their own dispute resolution, including
inter-party dispute resolution and, if necessary, mediation.
Note: Carriers may have regard to the inter-party dispute resolution
procedures set out in the TAF Telecommunications Access Code.
Carriers may have regard to the mediation procedures set out
in the TAF Telecommunications Access Code.
(2) In attempting to resolve disputes pursuant to sub-clause
2.4(1), Carriers must have regard to:
(a) the criteria the ACCC must take into account if it
is required to make a determination on terms and
conditions under clause 36 of Part 5 of Schedule 1
of the Telecommunications Act; and
Note: see Telecommunications (Arbitration) Regulations, Statutory Rules
1997 No. 350, clause 8.
(b) any relevant principles or guidelines published by
the ACCC that may be relevant to the arbitration of
a dispute.
Note: see Access Pricing Principles — Telecommunications, ACCC,
November 1998 and Attachment A of the Explanatory Statement.
(3) In the event that Carriers cannot resolve disputes pursuant
to sub-clause 2.4(1), Carriers must make reasonable
endeavours to refer a matter in dispute for arbitration by
an agreed independent expert other than the ACCC. Carriers
may agree to accept a nominee of the Australian
Commercial Disputes Centre.
(4) Pursuant to sub-clause 2.4(3), Carriers must comply with the
determination of an independent expert.
(5) In making a determination under sub-clause 2.4(3),
an independent expert may consult with the ACA.
(6) In the event that Carriers cannot resolve a dispute pursuant
to sub-clause 2.4(3), Carriers must refer the matter in dispute
to the ACCC for arbitration.
(7) Carriers must ensure that dispute resolution measures
required by this clause are conducted by persons with
sufficient decision-making authority consistent with timely
dispute resolution.
2.5 Dispute Resolution — implementation of
access
(1) The terms and conditions on which access is agreed must
include arrangements for the settlement of a dispute about
the ongoing provision or implementation of access which
are consistent with sub-clauses 2.4(1)-(5).
(2) In the event that a dispute arises in relation to the ongoing
provision or implementation of access, Carriers must make
reasonable endeavours to resolve the dispute in accordance
with the agreed dispute resolution arrangements made
pursuant to sub-clause 2.5(1).
(3) Carriers must ensure that dispute resolution measures
required by this clause are conducted by persons with
decision-making authority consistent with timely dispute
resolution.
Chapter 3.
Applying for Access
3.1 Information Package
(1) The First Carrier must establish and maintain an Information
Package in relation to the provision of access to particular
Eligible Facilities or classes of Eligible Facilities.
Note: classes of Eligible Facilities include telecommunications transmission
towers, sites of telecommunications transmission towers and
underground facilities, as defined in clause 31 of Part 5 of Schedule
1 of the Act.
(2) The Information Package must be provided to any Second
Carrier who requests it in writing from the First Carrier
within five Business Days of such a request.
(3) If the Information Package is amended by the First Carrier,
it must, within three Business Days of those amendments
being made, provide a copy of the amendments, or an
amended copy of the Information Package, to:
(a) Second Carriers who are being provided with access
to Eligible Facilities; and
(b) any Second Carriers who have requested an Information
Package within the period ninety days prior to the
making of those amendments, unless a Second Carrier
has indicated that it does not wish to proceed with
an access application.
(4) The Information Package must be consistent with this Code
and contain at least the following information:
(a) the name and address of the First Carrier and contact
details of its Proper Officer;
Note: see clause 3.3 for the functions and responsibilities of a Proper
Officer.
(b) to the extent relevant, an outline of how access to the
First Carrier’s classes of Eligible Facilities is to occur and
the physical arrangements for installing relevant
Equipment and arrangements for accessing such
Equipment, including a pro-forma Physical Inspection
Notification;
Note: see clause 1.2 of Annexure A and Annexure B for the use
of a Physical Inspection Notification;
(c) a summary of the First Carrier’s ordering and
provisioning arrangements for installing Equipment and
arrangements for accessing such Equipment;
(d) an indication of the time and major milestones likely
to be required to enable access to Eligible Facilities to
be supplied to the Second Carrier, including any credit
assessments which may be conducted and the types
of security that may be required;
(e) Financial Security Requirements which the First Carrier
may require from the Second Carrier;
Note: see clause 4.3 of the main Code for provisions concerning Financial
Security Requirements.
(f) details of any Confidentiality Agreement which the First
Carrier requires from the Second Carrier, the terms and
conditions of which should be consistent with this
Code; and
(g) any credit assessment pro-forma and application form
to be completed by the Second Carrier.
3.2 Other information requirements
(1) The First Carrier must, when requested by a Second Carrier,
provide within fifteen Business Days, general information
in relation to the type and location of Eligible Facilities in a
particular Postcode Area and, on request, use its reasonable
endeavours to provide further information, as required, that
may be relevant to a Second Carrier’s decision to seek
access.
(2) The Second Carrier’s request must be for the purpose
of facilitating bona fide negotiations between the First and
Second Carrier regarding access to Eligible Facilities.
Note: clauses 33(2)(a), 34(2)(a) and 35(2)(a) of Part 5 state that a First
Carrier is not required to provide access to a facility unless the access
is provided for the sole purpose of enabling the Second Carrier to
install a facility used, or for use, in connection with the supply
of a carriage service.
3.3 Proper Officer
(1) First and Second Carriers must appoint an employee or
representative with the responsibility for the administration
of access to Eligible Facilities under Part 5 (Proper Officer).
(2) The Proper Officer of a First or Second Carrier must use
reasonable endeavours to consult with his or her counterpart
from another Carrier regarding the matters set out in this
Code, with a view to resolving any difficulties and to ensure
compliance with this Code.
(3) First and Second Carriers must ensure that their Proper
Officer has adequate authority to effectively conduct his
or her responsibilities under this Code.
(4) A Proper Officer may delegate his or her functions to one
or more persons and must notify the other party of any
functions so delegated and the name and contact details
of the delegate.
(5) The responsibilities of each Proper Officer must include
at least the following:
(a) in the case of a First Carrier, processing requests for
access to Eligible Facilities; and
(b) in the case of a Second Carrier, preparation and
lodgement of requests for access to Eligible Facilities;
and
(c) in the case of both parties:
(i) coordination of activities so that each party performs
its responsibilities in relation to Make Ready Work;
and
(ii) receipt of notifications concerning defects, faults
or other problems and ensuring compliance with its
established emergency and maintenance procedures;
and
(iii) discussion of, and making reasonable endeavours
to agree on, matters relating to access applications,
including any proposal to reject an application.
3.4 Facilities Access Applications
A Second Carrier seeking access to a particular Eligible Facility or
Facilities must submit a Facilities Access Application in
accordance with the relevant procedures and timeframes for
making such an application, as set out in Annexure A or B.
3.5 Forecast Information
(1) For the sole purpose of assisting the First Carrier with the
administration of access procedures under this Code, the
Second Carrier must, if requested by the First Carrier,
provide the First Carrier with estimates of future
requirements for access to those Eligible Facilities that
it reasonably requires (Forecast Information) to enable the
First Carrier to provide for access to Eligible Facilities.
(2) Any estimates of future requirements provided by the Second
Carrier to the First Carrier must be given in good faith.
Chapter 4.
Negotiating access
4.1 General
Negotiations undertaken for the purpose of securing agreement for
facilities access must be undertaken in good faith and be entered
into and conducted in a timely manner.
4.2 Master Access Agreement
(1) If a Second Carrier has requested access to an Eligible
Facility of a First Carrier, or indicated an intention to make
such a request, and no existing Master Access Agreement
applies in relation to the Eligible Facility to which the
Second Carrier is seeking access, the First and Second
Carriers must make reasonable endeavours to negotiate
a Master Access Agreement, where that Agreement covers
general or standard terms and conditions by which the
Second Carrier will obtain access to the Eligible Facilities
of the First Carrier (or a class thereof).
(2) A Master Access Agreement applies to all applications made
by a Second Carrier for access to facilities of a class covered
by the Master Access Agreement prior to the termination of
the Master Access Agreement.
(3) A Master Access Agreement must have a termination date.
(4) A Master Access Agreement may, without limitation,
deal with:
(a) ordering and provisioning procedures for access;
(b) operation and routine maintenance procedures;
(c) arrangements for dealing with delays in the delivery
of access;
(d) supervisory procedures required by either party, to the
extent necessary, in relation to the performance of Make
Ready Work;
(e) dispute resolution procedures;
(f) charges;
(g) financial security requirements;
(h) credit assessment procedures (both initial and ongoing);
(i) confidentiality;
(j) indemnities;
(k) any licence agreement to be entered into in respect
of a grant of access to an Eligible Facility;
(l) reasonable Forecast Information to be provided,
as described in clause 3.5 of the main Code;
(m) technical specifications relating to matters to be agreed
by the Carriers, including technical specification of
Towers and for attachment of Equipment to Towers, and
occupational and health and safety standards;
(n) relevant radio frequency, electromagnetic, operational
and engineering practices and procedures as agreed
between the Carriers;
(o) Carriers’ respective rights and obligations in relation
to physical access to Eligible Facilities, including what
work should be carried out and when that work will
be carried out;
(p) the Carriers’ respective rights and obligations in relation
to physical access to Eligible Facilities for the purpose
of maintenance, as well as security and access-
coordination procedures;
(q) emergency response procedures;
(r) procedures for access to an Eligible Facility by Third
Party Users; and
(s) such other procedures as the Carriers may, from time
to time, determine to be necessary for the due and
proper joint operation of an Eligible Facility.
(5) The Master Access Agreement may also require the Second
Carrier to maintain with insurers approved by the First
Carrier (which approval shall not be unreasonably withheld),
in the name of the First Carrier and the Second Carrier, for
their respective rights and interests, workers’ compensation,
public risk and other insurances which a prudent person
engaged in a similar business or undertaking to the Second
Carrier would effect or as reasonably specified by the First
Carrier.
(6) The Carriers must make reasonable endeavours to agree
on procedures in a Master Access Agreement for coordinated
scheduling of maintenance of their respective Equipment
used on or in an Eligible Facility. These procedures must
reflect the following principles:
(i) the First Carrier must perform any necessary
maintenance when temporary decommissioning occurs,
if reasonably practicable;
(ii) regular shutdown periods of determinate length (Access
Windows) must be scheduled within which the Carriers
can undertake regular scheduled work on their
Equipment (if they are a First or Second Carrier) and/or
Eligible Facility (if they are the First Carrier); and
(iii) each Access Window period should be scheduled
to occur at a time of low demand for the Carrier’s
networks and also when it is reasonably practical
to perform maintenance work.
(7) The Carriers must make reasonable endeavours to agree on
procedures in a Master Access Agreement for unscheduled
maintenance of their respective Equipment used on or in an
Eligible Facility outside a scheduled Access Window.
As a general principle, if maintenance work can be
reasonably delayed until the next scheduled Access Window,
then it should be delayed. In the event that maintenance
work cannot be reasonably delayed, Carriers must
co-operate to enable the maintenance work to be
undertaken, including, where necessary, powering down
their own antennas at no cost to any other Carrier.
4.3 Financial matters
(1) If the parties are unable to agree on terms of access because
the First Carrier has reasonable concerns that the Second
Carrier:
(i) is not creditworthy; and/or
(ii) has repeatedly failed to comply with the terms and
conditions on which the same or similar access has
been provided (whether or not by the First Carrier); then
the Carriers must comply with the following provisions,
as appropriate:
(a) The First Carrier must provide the following information
to the Second Carrier if the First Carrier has reasonable
concerns as specified in sub-clause 4.3(1)(i):
(i) specific evidence as to why the First Carrier believes
the Second Carrier would not be able to meet
its financial obligations with respect to access;
(ii) any independent supporting evidence of that
position; and
(iii) any other relevant information.
(b) The First Carrier must provide the following information
to the Second Carrier if the First Carrier has reasonable
concerns as specified in sub-clause 4.3(1)(ii):
(i) written evidence of any previous failures by the
Second Carrier to comply with terms and conditions
of which the First Carrier is aware;
(ii) a written description of the Eligible Facility to which
the previous failure relates; and
(iii) any other relevant information.
(c) A First Carrier making an assessment of creditworthiness
for the purpose of sub-clause 4.3(1)(i) must not take into
account amounts outstanding for access or services
previously provided by the First Carrier to the Second
Carrier where, in accordance with the terms and
conditions governing the provision of such access
or services, the Second Carrier is not required to pay
such amounts (including a temporary suspension of the
obligation to pay) to the First Carrier to the extent that
there is a bona fide dispute in relation to the amounts
outstanding by the Second Carrier to the First Carrier.
(d) If the First Carrier has reasonable concerns as set out
in sub-clause 4.3(1)(i) and 4.3(1)(ii) it must, as soon
as reasonably practicable, discuss and make reasonable
endeavours to resolve those concerns with the Second
Carrier.
(2) The parties must consider whether Financial Security
Requirements are necessary to overcome the First Carrier’s
concerns to enable that Carrier to agree on the terms
of access.
(3) The Financial Security Requirements (including the type and
quantum) required by the First Carrier must be proportionate
to the type and quantum of access to an Eligible Facility,
having regard to:
(i) the creditworthiness information provided by the
Second Carrier and legitimately acquired by the First
Carrier
in respect of the Second Carrier;
(ii) the Forecast Information provided by the Second Carrier
and, accordingly, the likely credit to be provided by the
First Carrier to the Second Carrier;
(iii) the Second Carrier’s previous record of payment,
whether with the First Carrier or not, in respect of the
supply of other goods or services and/or the supply
of access to other similar Eligible Facilities;
(iv) security previously required by the First Carrier from the
Second Carrier;
(v) goods or services supplied by the First Carrier to the
Second Carrier; and
(vi) any other information which is relevant to the credit
reasonably likely to be provided by the First Carrier
to the Second Carrier.
(4) Pursuant to sub-clause 4.3(3), in the event that Carriers are
unable to agree on Financial Security Requirements, Carriers
must engage in dispute resolution, as set out in Chapter 2
of the main Code.
(5) The type and quantities of the Financial Security
Requirement may be varied from time to time in accordance
with any agreed procedure for varying Financial Security
Requirements between the parties.
4.4 Performing Make Ready Work
(1) The Second Carrier may decide to perform the Make Ready
Work required for it to be provided with access to a First
Carrier’s Eligible Facility, subject to that Second Carrier,
or its representative, being suitably qualified to perform that
Make Ready Work.
Note: ‘Make Ready Work’ is defined in Chapter 6 of the main Code.
Note: Schedule A2 of this Code sets out the administrative and operational
procedures which are to apply if the Second Carrier is to carry out
Make Ready Work for access to Towers and Tower Sites. Schedule
B2 of this Code sets out the administrative and operational
procedures which are to apply if the Second Carrier is to carry out
Make Ready Work for access to Underground Facilities.
(2) In the event that the First Carrier does not consider that the
Second Carrier or its representative is qualified to perform
the MRW on or in its Eligible Facility, then both Carriers
must make reasonable endeavours and act in good faith
to resolve issues of concern.
(3) Pursuant to sub-clause 4.4(2), in the event that Carriers are
unable to agree on whether a Second Carrier or its
representative is suitably qualified to perform Make Ready
Work, Carriers must engage in dispute resolution, as set out
in Chapter 2 of the main Code.
(4) Carriers, or their representatives, must not do or omit
to do anything in connection with carrying out Make Ready
Work which might significantly interfere with;
• the delivery of carriage services supplied by other
Carriers; or
• any Equipment of Third Parties located at, on or in an
Eligible Facility such that the performance level of the
Equipment or Eligible Facility falls below accepted
industry standards.
(5) The First Carrier is required to perform Make Ready Work
only if:
• Carriers agree, or it has been independently determined
that, the Second Carrier or its representative is not
qualified to perform the MRW on or in a particular
Eligible Facility; or
• there are no qualified contractors who are able
to perform the Make Ready Work within a reasonable
timeframe requested by the Second Carrier.
Note: Schedule A1 of this Code sets out the administrative and operational
procedures which are to apply if the First Carrier
is to carry out Make Ready Work for access to Towers and Tower
Sites. Schedule B1 of this Code sets out the administrative and
operational procedures which are to apply if the First Carrier is to
carry out Make Ready Work for access to Underground Facilities.
(6) If the Make Ready Work involves moving or working on
Equipment of the First Carrier, or a Third Party User, then the
First Carrier may choose to carry out the Make Ready Work
relating to that Equipment.
(7) If the First Carrier exercises its right pursuant to sub-clause
4.4(6), then the Carriers must meet to discuss the extent
to which each party will contribute to the Draft Construction
and Work Plan and perform the Make Ready Work. If Make
Ready Work is to be performed by both the First Carrier and
the Second Carrier, then the Carriers must agree on
a procedure which is a combination of Schedules A1 and
A2 for Towers and/or Tower Sites or Schedules B1 and B2 for
Underground Facilities.
Note: The Draft Construction and Work Plan for Towers and/or Tower Sites
is defined in sub-clause 1.1(2) of Schedule A2 of Annexure A and for
Underground Facilities in sub-clause 1.1(2) of Schedule B2 of
Annexure B.
(8) Further to sub-clause 4.4(7), in the event that Carriers are
unable to agree on a procedure, Carriers must engage in
dispute resolution, as set out in Chapter 2 of the main Code.
4.5 Co-location Consultation Process
(1) Carriers may choose to initiate or participate in
a Co-location Consultation Process, as defined in this clause,
in relation to the development of a new Eligible Facility
or Facilities.
Note: Clause 38 of Part 5 of Schedule 1 of the Act requires Carriers,
in planning the provision of future carriage services,
to co-operate to share sites and eligible underground facilities.
(2) A Co-location Consultation Process involves a Carrier
(Requesting Carrier) making reasonable attempts to inform
all other Carriers (Non-requesting Carriers) that it has plans
to establish a new Eligible Facility in a particular Postcode
area and that it requests other Carriers to consider
establishing a Shared New Site or Shared New Underground
Facility, including as a result of a request from a local
council or other relevant body.
(3) As part of the Co-location Consultation Process, a Non-
requesting Carrier(s) must inform the Requesting Carrier
whether it wishes to establish a Shared New Site or Shared
New Underground Facility within thirty Business Days of the
Requesting Carrier’s request. If a Non-requesting Carrier
does not respond during that period then that Carrier will
be deemed to have rejected that request.
(4) If Carriers agree, pursuant to sub-clause 4.5(2), to establish
a Shared New Site or Shared New Underground Facility,
upon identification of a site as a potential Shared New Site
or location of a Shared New Underground Facility, the
Requesting Carrier must submit to those other Carriers which
propose to share that Shared New Site or Shared New
Underground Facility (the Proposed Sharers), a proposal for
sharing the Site or Facility (a Sharing Proposal), containing
particulars of the Site or Facility including:
• its location;
• an estimate of the make ready costs;
• the Requesting Carrier’s proposal as to development
of the Site or Facility;
• the time frame in which that development will occur;
and
• nomination as to which Carrier will be the Site or
Facility owner and the party with power to grant rights
of occupation thereon.
(5) Within twenty Business Days of receipt of a Sharing
Proposal, each Proposed Sharer must notify the Requesting
Carrier in writing that:
(i) it accepts the Sharing Proposal; or
(ii) it requires more information in relation to the Sharing
Proposal whereupon the Requesting Carrier must
provide the requested information within five Business
Days of the date on which the request is made; or
(iii) it rejects the Sharing Proposal.
(6) If parties to a Sharing Proposal are unable to agree on any
aspect of the Sharing Proposal, including the terms and
conditions of the Sharing Proposal, then the parties must,
at the request of any party, seek to resolve the dispute in
accordance with chapter 2 of the main Code.
(7) If a request, under sub-clause 4.4(2), or a Sharing Proposal,
under 4.4(4), is rejected:
(a) if requested, the rejecting Carrier must produce
a written explanation of why it has rejected the request
or Sharing Proposal;
(b) following (a), the rejecting Carrier or the Requesting
Carrier may request a meeting to discuss the reasons for
the rejection. If such a request is made, the Carriers
must meet within five Business Days and must use their
reasonable endeavours to develop an amended Sharing
Proposal or a strategy for managing the sharing of the
Site or Facility which addresses the reasonable concerns
of the Proposed Sharer;
(c) the Requesting Carrier or the Proposed Sharer may
submit an amended Sharing Proposal in respect of the
same Eligible Facility at any time, and the proposal will
be considered as though it were a new Sharing Proposal
submitted in accordance with paragraph 4.4(4).
(8) The Carriers must co-operate in the provision of information
to one another and the submission of relevant plans
regarding proposed future uses of an Eligible Facility
each is seeking, including specifications or plans for the
Equipment that each of them intends to locate on or in the
Eligible Facility.
(9) In recognising the commercial sensitivity and value of
information which each Carrier may provide to the other
in relation to the Sharing Proposal, each Carrier must
protect the confidentiality of information disclosed by the
other Carrier pursuant to this clause and otherwise, as
contemplated by the confidentiality provisions of Chapter 2
of the main Code.
Chapter 5.
Implementing facilities access
5.1 Maintenance of Eligible Facility and
Equipment
(1) Subject to sub-clause 5.1(2), the First Carrier is responsible
for maintaining the Eligible Facility to which access has been
granted in a safe and operable condition.
(2) The First Carrier is not required to undertake the structural
repair of an Eligible Facility in the event that that repair
would involve the reconstruction of the Eligible Facility.
(3) Carriers are responsible for the maintenance of their
respective Equipment. This includes being responsible for
the safe operation of their Equipment and taking all
reasonable and necessary steps to ensure that its Equipment
does not:
(i) endanger the safety or health of the officers, employees,
contractors, or agents or customers of another Carrier
or Third Party User; nor
(ii) damage, interfere with or cause any deterioration in
the operation of another Carrier’s Eligible Facility or
Equipment or the Equipment of a Third Party User.
(4) Once the location of a Second Carrier’s Equipment on or
in an Eligible Facility has been determined, and any part
of it installed, the First Carrier must not (except with the
consent of the Second Carrier, which must not be
unreasonably withheld) require that it be relocated
elsewhere on or in a Facility. A Second Carrier is not
required to consent to the relocation of its Equipment unless
the First Carrier pays the reasonable cost of such relocation
and the location to which the Equipment is relocated does
not result in a material reduction of amenity in its use.
5.2 Emergency Work
(1) Where, for the purposes of a First Carrier undertaking
emergency work in relation to an Eligible Facility, the
Equipment of another Carrier has to be turned off or
powered down or disabled (as the case may be), or the First
Carrier requires assistance in relation to the other Carrier’s
Equipment, the First Carrier must notify the other Carrier and
that Carrier will dispatch personnel on an emergency basis
to the Eligible Facility, in accordance with the same
procedures and time frames as that Carrier would respond
to in an emergency relating to its own Equipment in use on
or in a similar Eligible Facility where it was the First Carrier.
(2) If a Carrier becomes aware of a fault, defect or problem with
another Carrier’s Equipment on or in an Eligible Facility
which causes, or there is a reasonable risk that it might
cause, damage to that Eligible Facility and/or to that Carrier’s
Equipment, the Carrier:
(a) must notify the other Carrier as soon as practicable; and
(b) where there is an immediate risk of personal injury or
significant property damage (including to equipment of
the other Carrier or a Third Party User), may take interim
measures reasonably necessary in relation to the other
Carrier’s Equipment to prevent such injury or damage,
pending the attendance by the other Carrier’s personnel
to perform the required corrective work.
5.3 Replacement of Equipment
(1) Subject to sub-clause 5.3(2), on giving ten Business Days’
prior written notice to any other Carrier which is using an
Eligible Facility, a Carrier may replace Equipment currently
located on or in an Eligible Facility with similar or new
design Equipment provided:
(a) the Carriers agree that the new Equipment will not
result in or cause:
(i) significant difficulties of a technical or engineering
nature, including adversely affecting the structural
integrity, stability and safety of the Eligible Facility;
or
(ii) significant interference with the delivery of carriage
services supplied by other Carriers; or
(iii) significant interference with any Equipment of Third
Party Users located on or in an Eligible Facility such
that the performance level of the Equipment falls
below accepted industry standards; or
(iv) a significant threat to the health or safety of persons
who operate, or work on or in the Eligible Facility
and
(b) the replacement work takes place within an Access
Window or some other time agreed to by all Carriers;
and
(c) the replacement Equipment does not interfere with any
other Equipment installed on or in the Eligible Facility;
and
(d) the Carrier complies with the requirements of a facilities
access agreement and Master Access Agreement.
(2) Carriers, as part of a facilities access agreement, may
establish different procedures for the replacement of
Equipment in certain circumstances, such as, in relation
to an Underground Facility, where the Equipment of
a Second Carrier is housed in a separate sub-duct.
(3) In relation to sub-clauses 5.3(1) and 5.3(2), a First Carrier
must not unreasonably withhold its agreement. If a First
Carrier does not agree to the replacement of existing
Equipment then the First Carrier must follow the procedures
set out in Clause 2.3 of Annexure A and B, modified as
appropriate.
5.4 Interference with Equipment
(1) A Carrier must not do anything, or knowingly permit any
Third Party User to do anything, in relation to an Eligible
Facility, which causes interference or materially obstructs,
interrupts or impedes the continuous use or operation of any
Equipment of another Carrier or a Third Party User’s
Equipment. This clause does not apply to the extent that
an interruption in the use or operation of Equipment is
necessary for the installation or maintenance of Equipment
or for a Carrier to respond to an emergency.
(2) In the event of one Carrier (the Notifying Carrier) advising
another Carrier of any interference allegedly caused by a
breach by that Carrier of clause 5.4(1), subject to sub-clause
5.4(4) and 5.4(5), that Carrier must expeditiously remedy
such a breach.
(3) In addition to the obligations under sub-clause 5.4(2), if a
Notifying Carrier advises another Carrier of any interference
allegedly caused by a breach by that Carrier of sub-clause
5.4(1) and the advice is given within one week of:
(a) the Carrier installing new or additional Equipment; or
(b) the Carrier commissioning new or additional
Equipment;
then that other Carrier must remedy that breach as soon
as possible and, in any event, within 24 hours.
(4) If, within 48 hours of receiving notification of the
interference, a Carrier is not able to reasonably demonstrate
to a Notifying Carrier that interference is not being caused
by that Carrier’s use of the Eligible Facility, the Carriers must
make reasonable endeavours to appoint an independent
expert to determine the cause of the interference and,
if caused by either Carrier, how the interference is to
be eliminated.
(5) If the determination of the independent expert is that
a Carrier is causing the interference and eliminating such
interference requires removing or relocating that Carrier’s
Equipment, that Carrier must do so within 48 hours of the
independent expert notifying the Carrier of its determination.
In the case of a Tower and/or Tower Site, the First Carrier must,
at the expense of the Second Carrier, accept a surrender
or a variation of the Tower Sub-Lease and/or Tower Site
Sub-Lease if such surrender or variation is reasonably required
as a result of the determination of the independent expert.
5.5 Indemnity in respect of property damage
(1) In relation to matters of, and relating to, liability between
the Carriers not governed by the terms of any agreement,
a Carrier which, through its acts or omissions (whether
negligent or otherwise), causes damage to the Eligible
Facility or the Equipment of another Carrier in use on or
in an Eligible Facility, then that Carrier must indemnify the
other Carrier against such damage to its Eligible Facility or its
Equipment and any reasonable costs or expenses associated
with such repair or replacement.
(2) Pursuant to sub-clause 5.5(1), in the event that Carriers are
unable to agree on costs or expenses, Carriers must engage
in dispute resolution, as set out in Chapter 2 of the main
Code.
5.6 Third Party User Equipment
(1) The Second Carrier must acknowledge that the First Carrier
may agree to a Third Party User installing its Equipment on
or in an Eligible Facility provided that the Third Party User’s
Equipment does not interfere in a material way with any of
a Second Carrier’s Equipment. Where there is a significant
risk to the integrity of the Second Carrier’s network, the First
Carrier must consult with a Second Carrier sharing the same
Eligible Facility to ensure that there is no interference with
a Second Carrier’s Equipment.
(2) The First Carrier must require a Third Party User to agree
to comply with terms consistent with clause 5.4 of the Code
in relation to the Third Party User’s use of the Eligible Facility
and, further, that agreement must include suitable
indemnities by the Third Party User against damage to
persons or property affording protection for liability and/or
loss to all parties who share the Eligible Facility.
(3) If the equipment of a Third Party User needs to be moved,
powered down or turned off in order for the Second Carrier
to install or maintain its Equipment, the Second Carrier is
responsible for liasing with that Third Party User.
5.7 Suspension of Access
(1) The First Carrier may give a Suspension Notice to the Second
Carrier after becoming aware of a Suspension Event.
A Suspension Notice must:
(a) cite this paragraph;
(b) specify the Suspension Event and the applicable Eligible
Facility in respect of which the event has occurred;
(c) require, if necessary, the Second Carrier to institute
remedial action in respect of that event; and
(d) specify action which may follow due to a failure to
comply with action required by sub-clause 5.7(1)(c).
Note: A Suspension Event is defined in Chapter 6.
(2) If the Second Carrier fails to institute remedial action, as
specified in the Suspension Notice, within twenty Business
Days of receiving the Suspension Notice (Remedy Period),
the First Carrier may, by notice given to the Second Carrier
within twenty Business Days after the expiry of the Remedy
Period:
(a) refuse to provide the Second Carrier with access
to Eligible Facilities of a kind similar to that which the
Suspension Event relates to; and
(b) suspend the provision of access to the particular Eligible
Facility in respect of which the Suspension Event has
occurred by requiring the Second Carrier to remove
its Equipment from that Eligible Facility;
until the remedial action specified in the Suspension Notice
has been taken.
(3) The First Carrier must permit the Second Carrier access to
its Eligible Facility to permit remedial action to be taken.
(4) The First Carrier must provide the Second Carrier with
access to the Eligible Facility as soon as practicable after
there no longer exists a reason for suspension and must
do so at a reasonable cost to the Second Carrier.
5.8 Termination of Access
(1) The Second Carrier may terminate an agreement to access
an Eligible Facility of the First Carrier by giving the First
Carrier no less than sixty days prior written notice.
(2) The First Carrier may terminate an agreement to access
an Eligible Facility if it decides to:
(a) decommission that Eligible Facility; or
(b) enter into a sale or leaseback arrangement in respect
of that Eligible Facility.
(3) If:
(a) the Second Carrier ceases to be a Carrier; or
(b) the Second Carrier breaches a material obligation under
this Code and/or the applicable terms and conditions of
access and that breach materially impairs or is likely to
materially impair the ability of the First Carrier to deliver
access to other Second Carriers or provide services to its
customers; and
(i) the First Carrier has given a notice to that effect
to the Second Carrier (a Breach Notice) within ten
Business Days of becoming aware of the breach; and
(ii) the Second Carrier fails to institute remedial action,
which may be specified in the Breach Notice, within
twenty Business Days after receiving the Breach
Notice (Remedy Period); then
the First Carrier may terminate the supply of access to
a particular Eligible Facility by notice given to the Second
Carrier within twenty Business Days of becoming aware of
a cessation or expiry of the Remedy Period specified in the
Breach Notice (as the case may be).
(4) Either a First or Second Carrier (Notifying Party) may
terminate an access agreement on five Business Days notice
to the other Carrier (Other Party) if:
(a) an order is made or an effective resolution is passed
for winding up or dissolution without winding up
(otherwise than for the purposes of reconstruction or
amalgamation) of the Other Party and the order or
resolution remains in effect for a continuous period
of five Business Days; or
(b) a receiver, receiver and manager, official manager,
administrator, provisional liquidator, liquidator, or like
official is appointed over the whole or a substantial part
of the undertaking and property of the Other Party or
the Other Party enters or proposes to enter into any
scheme of arrangement or any compositions for the
benefit of its creditors; or
(c) a holder of an encumbrance takes possession of the
whole or any substantial part of the undertaking and
property of the Other Party or the Other Party enters
or proposes to enter into any scheme of arrangement
or composition for the benefit of its creditors; or
(d) the Other Party is unable or will be unable to pay its
debts as they fall due; or
(e) a force majeure, substantially and adversely affecting
the ability of a Notifying or Other Party to perform its
obligations to the Other or Notifying Party respectively,
continues for a period of six months; or
(f) as a result of s. 459F or any other section of the
Corporations Law, the Second Carrier is taken to have
failed to comply with a statutory demand; or
(g) any director of the Other Party (where, in the reasonable
opinion of the Notifying Party, such an event reduces
the creditworthiness of that Other Party):
(i) becomes bankrupt, presents a debtor’s petition
within the meaning of the Bankruptcy Act 1966,
or at a meeting of any of his/her creditors, he or she
consents to present a debtor’s petition under, or to
sign an authority under s.118 of the Bankruptcy Act
or commits any of the acts of bankruptcy specified
in s. 40(1)(h) to (n) of the Bankruptcy Act; or
(ii) executes a deed of assignment or a deed of
arrangement under the Bankruptcy Act; or
(h) the Other Party defaults, and such default continues for
a period of ten Business Days after written notice has
been given to it by the Notifying Party, in the payment
of any money which is owing by the Other Party on any
account whatsoever to the Notifying Party; or
(i) the Other Party breaches any of the terms of any of its
loan, security or like agreements or any lease or
agreement relating to equipment used in conjunction
with the business of that Other Party related to this
Code, or that Other Party fails to make on the due date,
any payment due in respect of any loan or debt taken
out or owed by that Other Party which loan or debt is
at that time guaranteed or otherwise secured by the
Notifying Party or any of its related bodies corporate
or Controlled Entities; or
(j) a demand is made on the Notifying Party for payment
of money under any instrument, guarantee or indemnity
given by the Notifying Party to secure advances or other
financial accommodation made to the Other Party; or
(k) the Other Party ceases to carry on business for a period
of more than ten consecutive Business Days without the
prior written consent of the Notifying Party; or
(l) anything analogous or having a substantially similar
effect to any of theevents specified above occurs in
relation to the Other Party or a related body corporate
or controlled entity of that Other Party; or
(m) the Other Party breaches a term or condition
of a security provided under a security requirement; or
(n) the Eligible Facility is damaged or destroyed or if there
is an interruption to access to the Eligible Facility so as
to render the Eligible Facility or any part of the Eligible
Facility wholly or substantially unfit for the occupation
or use or inaccessible by any means of access; or
(o) any application for a required consent or a permit for
the installation and use of the Eligible Facility as part of
a telecommunication network and telecommunication
service is finally rejected or cancelled, lapses or is
otherwise terminated and no further or replacement
consent or permit can reasonable be obtained; or
(p) the Eligible Facility is rendered unfit for the First and/or
Second Carrier’s use by reason of the emergence
of significant electromagnetic interference; or
(q) the First Carrier determines that the Eligible Facility has
become unsafe or any reason other than a failure to
maintain in accordance with clause 5.1of this Code.
(5) Upon the expiry of the term or earlier termination
of an access agreement, the Second Carrier must:
(a) remove its Equipment from the Eligible Facility within
thirty Business Days;
(b) reinstate the Eligible Facility to the same standard, style
and condition as existed prior to the installation of its
Equipment; and
(c) do such other acts, matters and things as the parties may
agree,
and the First Carrier must allow the Second Carrier to enter
the land on which the Eligible Facility is located in order
to do so.
(6) If, after the termination or expiry of an access agreement the
Second Carrier has failed to comply with sub-clause 5.8(5),
the First Carrier may, upon giving reasonable notice, carry
out any necessary disconnection works and repossess any
equipment.
(7) All reasonable costs of the disconnection described
in sub-clause 5.8(6) must be paid by:
(a) in the case of disconnection due to sub-clause 5.8(1)
or 5.8(3) or 5.8(4)(f) — the Second Carrier; and
(b) in the case of disconnection due to any of sub-clause
5.8(4) (a), (b), (c), (d), (g). (h), (i), (j), (k), (l), (m), or (n)
— the party described therein as the other party; and
(c) in the case of disconnection due to paragraph 5.8(4)(e)
— the party affected by the force majeure; and
(d) in the case of disconnection due to the failure of the
First Carrier to maintain the Eligible Facility in
accordance with clause 5.1 of the main Code, the First
Carrier.
(8) In the event that there is a dispute as to reasonable costs of
disconnection, pursuant to sub-clause 5.8(7), Carriers must
engage in dispute resolution, as set out in Chapter 2 of the
main Code.
(9) Termination or expiry of an access agreement does not
operate as a waiver of any breach by a Carrier of any of its
provisions and is without prejudice to any rights, liabilities
or obligations of any Carrier which have accrued up to the
date of the termination or expiry, including a right of
indemnity. Carriers must negotiate whether the termination
of a Master Access Agreement should cause the termination
of a site-specific facilities access agreement.
(10)Without prejudice to the Carriers’ rights upon termination
or expiry of an access agreement, the First Carrier must
refund to the Second Carrier a fair and equitable proportion
of those sums paid under an access agreement by the
Second Carrier which are periodic in nature and have been
paid for an Eligible Facility for a period extending beyond
the date on which an access agreement terminates or
expires, provided there are no invoices outstanding from the
Second Carrier to the First Carrier.
(11)Pursuant to sub-clause 5.8(10), in the event of a dispute
in relation to the calculation or quantum of a fair and
equitable proportion of the sums paid under an access
agreement, Carriers must engage in dispute resolution,
as set out in Chapter 2 of the main Code.
(12)The First Carrier must include, in any access agreement, an
obligation imposed upon itself that, prior to the withdrawal
by the First Carrier of an access agreement, because it is no
longer providing or is proposing to no longer own or operate
an Eligible Facility, it will provide notice of withdrawal to all
Second Carriers to whom it is supplying access on that
Eligible Facility. The notice period must be no less than six
months, provided always that the notice of the decision to
withdraw is provided on an equivalent basis to that on
which the First Carrier provides notice of that decision to
itself. During the notice period, the Second Carrier may
identify and request the supply of an existing substitute
Eligible Facility and the First Carrier must consider that
request in good faith.
5.9 Native Title
(1) This Code recognises that Eligible Facilities may be subject
to a claim under native title or heritage laws (a Claim).
(2) In the event that a Claim is made in respect of an Eligible
Facility to which access has been granted, then the First
Carrier and the Second Carrier(s) must:
(a) reasonably cooperate with each other to resolve the
Claim;
(b) contribute to the costs and expenses of resolving the
Claim, including any payments or liabilities, in
proportion to the space in or on the Eligible Facility
occupied or used by each Carrier; and
(c) negotiate, in good faith, any amendments or variations
(including if required termination) to any licence
agreement as may be necessary or desirable as a result
of the Claim.
Chapter 6.
Glossary and interpretation
6.1 Glossary
The following words have these meanings unless the contrary
intention appears:
ACA refers to the Australian Communications Authority.
ACCC refers to the Australian Competition and Consumer
Commission.
ACCC Pricing Principles see a document entitled Access Pricing
Principles - Telecommunications issued by the ACCC on 22 July
1997.
Access Window means that period during which a Carrier’s
Equipment on or in an Eligible Facility is temporarily
decommissioned or not operating.
Adjoining Site means the site adjoining or located close
to a replacement Tower or Existing Tower which is to be obtained
and used by the Second Carrier to locate its Equipment Shelter and
associated Equipment.
Advised Delivery Date means the date at which the Carrier
undertaking Make Ready Work advises the other Carrier as to the
date on which access is provided in accordance with this Code.
Breach Notice is defined in clause 5.8(3)(b) of the main Code.
Business Day means a day that is not a Saturday, a Sunday
or a public holiday in the State or Territory in which the Eligible
Facility is located.
Carriage Service has the same meaning as in s. 7 of the
Telecommunications Act 1997 and includes a proposed Carriage
Service.
Carriage Service Provider has the same meaning as in s. 87 of the
Telecommunications Act 1997.
Carrier has the same meaning as in s. 7 of the Telecommunications
Act 1997.
Carrier Licence means a licence granted under s. 56 of the
Telecommunications Act 1997.
Classes of Eligible Facilities refers to different categories of Eligible
Facilities, such as PMTS Towers, Radcom Towers, Sites of PMTS
Towers, Sites of Radcom Towers and Underground Facilities.
Code refers to the ACCC’s ‘Code of Access to Telecommunications
Transmission Towers, Sites of Towers and Underground Facilities’.
Confidential Information includes all information, know-how,
ideas, concepts, technology, manufacturing processes, industrial,
marketing and commercial knowledge of a confidential nature
(whether in tangible or intangible form) relating to or developed
in connection with or in support of the business of a Carrier.
Confidentiality Agreement means the confidentiality agreement
required by the Access Provider in its Information Package.
Currently Planned Requirements means genuine plans for the
future use of an Eligible Facility by a First Carrier where those plans
include commencing:
• ordering and/or installing Equipment on or in an Eligible
Facility; or
• obtaining landlord or government approval, where such
approval is necessary for use of an Eligible Facility
within 36 or 12 months of the date of a Facilities Access
Application if the First Carrier has or has not participated in
a Co-location Consultation Process respectively. The ACCC may
also consider a First Carrier to have Currently Planned
Requirements in other circumstances and may make such
a determination on a case-by-case basis.
Draft Construction and Work Plan is a plan prepared by the
Second Carrier for the undertaking of the Make Ready Work
required to provide access on or in an Eligible Facility and includes
a construction timetable and its Work Plan.
Eligible Facility is a term intended to collectively
refer to telecommunications transmission towers, sites
of telecommunications transmission towers and eligible
underground facilities specified in clauses 33, 34 and 35
respectively of Part 5. Clause 31 of Part 5 provides that
a ‘telecommunications transmission tower’ means a tower, a pole,
a mast or a similar structure used to supply a carriage service by
means of radiocommunications. That same clause provides that
a ‘site’ means land, a building on land or a structure on land.
An ‘eligible underground facility’ means an underground facility
that is used, or intended to be used, to hold lines.
Equipment includes :
(a) antennae, microwave dishes or satellite dishes;
(b) associated transmission Equipment, power plant (including
standby power), and air conditioning plant;
(c) associated feeders, waveguides and waveguide pressuring
Equipment;
(d) related cabling;
(e) prefabricated modules, risers or other structures housing any
of the above;
(f) cable gantries;
(g) lines, joints/splices and such other ancillary equipment as
necessary to the support use of a line which may be housed
in pits or manholes where suitable space is available or as
agreed between the parties; and
(h) such other facilities as may be specified from time to time
and agreed to by the parties pursuant to the
Telecommunications Act 1997.
Equipment Shelter means a building or other structure constructed
or installed by a Carrier which is to contain Equipment.
Existing Tower means a Tower (other than a Shared Tower) or part
thereof owned, leased, licensed or used by the First Carrier in
respect of which the First Carrier has gained all necessary consents
and approvals.
Existing Tower Site means a Site (other than a Shared New Site)
or part thereof owned, leased, licensed or used by the First Carrier
in respect of which the First Carrier has gained all necessary
consents and approvals to locate a Tower on it.
Financial Security Requirements mean instruments which a First
Carrier may require of a Second Carrier so as to assure itself that
a Second Carrier is able to meet financial obligations incurred as
a result of access being provided to it. Examples of security may
include but are not limited to:
(i) fixed and floating charges;
(ii) personal guarantees from directors;
(iii) bank guarantees;
(iv) letters of comfort;
(v) mortgages; and
(vi) a right of set off.
First Carrier means a Carrier which owns or operates or controls
Eligible Facilities to which access may be sought.
Lease means the lease, licence or other contractual right of use
or occupation held by a First Carrier for a Tower.
Lessor means the owner of a Tower or the party with the power
or right to grant a right of occupation to a Carrier for the operation
of a Tower.
Make Ready Work means the work that is reasonably necessary
to make the Tower, Tower Site or Underground Facility ready for
access by the Second Carrier which may include (but is not
limited to):
(a) structural analysis;
(b) strengthening, modifying or augmenting an Existing Tower
to the extent necessarily and proportionally required
to condition the Tower to bear the wind and weight loading
directly added by the Second Carrier’s Equipment;
(c) constructing, installing or modifying head frames, cable
risers, cable trays and other Tower fittings required to house
the Equipment of the Carriers on the Tower;
(d) where the Tower is an Existing Tower, removing an existing
Tower of the First Carrier and constructing a replacement
Tower for co-location on that replacement Tower of the First
Carrier and the Second Carrier’s Equipment; or
(e) where the Tower is a replacement Tower, constructing
a replacement Tower, including all design, approval and
construction work;
(f) proving ducts, installing subducts and manhole breakouts,
clearing roots or silt and repair work;
(g) rearranging the First Carrier’s existing Equipment;
(h) the provision of temporary facilities to accommodate
existing Equipment;
(i) making alterations to an underground duct;
(j) installing or extending cable trays or iron work to house the
Second Carrier’s lines and/or underground Equipment; and
(k) any other matters specified by the parties from time to time.
Meeting of Carrier representatives includes a meeting
by telephone or video-conference.
Outage means that period during which a Carrier’s Equipment at a
Shared Tower Site is temporarily decommissioned or not operating.
Potential Second Carriers includes persons who have submitted
a current industry development plan to the Minister for
Communications, Information Technology and the Arts as a part of
applying for a Carrier licence.
PMTS Tower means a Tower primarily designed for use to supply
a PMTS.
PMTS means a public mobile telephone service as defined
in section 32 of the Telecommunications Act 1997.
Radcom Tower means any Tower which is not a PMTS Tower.
Regulations includes regulations made under clause 36(4) of Part
5 of Schedule 1 of the Telecommunications Act 1997.
Shared Existing Site means an Existing Site which a First and one
or more Second Carriers have agreed to share. For the purposes of
this Code, an Existing Site becomes a Shared Existing Site from the
date upon which a Facilities Access Application is accepted in
accordance with this Code or such other date as the Carriers which
share a Site may, in respect of that Site, mutually determine.
Shared New Site means a Site that is not an Existing Site of
a Carrier which has been identified as a potential Shared Site and,
for the purposes of this Code, a Site becomes a Shared New Site
from the date upon which a Sharing Proposal is accepted in
accordance with this Code or such other date as the Carriers which
share a Site may, in respect of that Site, mutually determine.
Shared New Underground Facility means a new Underground
Facility which Carriers have agreed to collectively develop for the
purpose of sharing its use and which becomes a Shared New
Underground Facility Site from the date upon which a Sharing
Proposal is accepted in accordance with this Code or such other
date as the Carriers which share an Underground Facility may,
in respect of that Facility, mutually determine.
Shared Site includes a Shared New Site or a Shared Existing Site.
Site means land, a building on land or structure on land which is,
can be or is to be used to locate Equipment consistent with the
Telecommunications Act 1997.
Second Carrier means a Carrier which has requested, or has been
granted, access to another Carrier’s Eligible Facilities.
Sub-Lease means a grant of part of the rights in respect of a Lease
and includes a licence or other contractual right of use
or occupation.
Suspension Event means:
(a) the continued supply of access to a particular Eligible
Facility poses a threat to the safety of persons, Equipment
or network security; or
(b) the Second Carrier has failed to pay monies owing, other
than amounts in bona fide dispute under an executed
agreement for access to Eligible Facilities; or
(c) the Second Carrier’s use, either of its Eligible Facility or the
First Carrier’s Eligible Facility is in contravention of any law;
or
(d) the Second Carrier breaches a material obligation under
an access agreement; or
(e) the Second Carrier has failed to provide creditworthiness
information about its financial position when requested
to do so by the First Carrier.
TAF refers to the Australian Communications Access Forum Inc,
declared to be the Telecommunications Access Forum under
s. 152AI of Part XIC of the Trade Practices Act.
Third Party User means a user of an Eligible Facility other than
a First or Second Carrier.
Tower means a ‘telecommunications transmission tower’
as defined in clause 31 of Part 5 of Schedule 1 of the
Telecommunications Act 1997.
Tower Sub-Lease means a sub-lease or other right of occupation
granted to the Second Carrier by the First Carrier which permits
that Carrier to install its Equipment on the Tower as permitted
by this Code.
TPA refers to the Trade Practices Act 1974.
Underground Facility means an underground facility that is used,
installed ready to be used, or intended to be used to hold lines.
Work Plan means a plan prepared by the Second Carrier detailing
the method and procedures that the Second Carrier will use
in installing its Equipment on or in an Eligible Facility. A Work
Plan would be included in a Second Carrier’s ‘Draft Construction
and Work Plan’ where it proposes to undertake the Make Ready
Work on or in an Eligible Facility.
6.2 Interpretation
In the Code, unless the context otherwise requires:
(a) headings are for convenience only and do not affect the
interpretation of the Code;
(b) words importing the singular include the plural and vice
versa;
(c) words importing a gender include any gender;
(d) an expression importing a natural person includes any
company, partnership, trust, joint venture, association,
corporation or other body corporate, and any other
government agency;
(e) a reference to any thing includes a part of that thing;
(f) a reference to a chapter, condition, clause, schedule or part
is a reference to a chapter, condition, clause, schedule or
part of the Code;
(g) a reference to any statute, regulation, proclamation, order
in council, includes all statutes, regulations, proclamations,
orders in council, varying, consolidating, re-enacting,
extending or replacing and a reference to a statute includes
all regulations, proclamations, orders in council, by-laws
and determinations issued under that statute;
(h) a reference to a person includes that person’s executives,
administrators, successors, substitutes (including, without
limitation, persons taking by novation) and permitted
assignees;
(i) period of time which:
(i) dates from a given day or the day of an act or event
is to be calculated exclusive of that day; or
(ii) commences on a given day or the day of an act or event
is to be calculated inclusive of that day;
(j) a reference to a Carriers’ Equipment includes Equipment that
it owns, operates or controls; and
(k) any event which is to occur on or by a stipulated day which
is not a Business Day may occur on the next Business Day.
ANNEXURE A.
TELECOMMUNICATIONS
TRANSMISSION TOWERS AND
SITES OF TOWERS
Part 1.— Preliminary Assesment of Access
1.1 Exchange of information
(1) Where the Second Carrier wishes to explore the sharing
of an Existing Tower and/or Tower Site of the First Carrier,
the Carriers must exchange information within a reasonable
period of time for the purpose of assisting the Second Carrier
to make a preliminary assessment as to whether the Tower
and/or Tower Site would be suitable for the Second Carrier
to install Equipment for use in connection with the supply
of a carriage service by means of radiocommunications.
This information may include details of any relevant
certificate relating to technical feasibility in respect of that
Tower and/or Tower Site issued by the ACA under Part 5
of Schedule 1.
(2) If requested by the Second Carrier, the exchange of
information may include plans of the Tower and/or Tower
points and any alternate routes and alternative
intermediate points; and
(vi) characteristics of the Equipment and conditions or
procedures applicable to the installation, operation
or maintenance of the Equipment which do not conform
with, or require special consideration under, the First
Carrier’s engineering practices; and
(vii)the general timeframe (measured from the date of any
Order made by the Second Carrier in accordance with
clause 3 of Schedule B1) within which the Second
Carrier wishes to be able to commence installation
of the Equipment; and
(viii)the expected term of access required by the Second
Carrier to the Underground Facility; and
(ix) any relevant changes or updates to previously supplied
information.
(6) The First Carrier must provide technical information
in relation to the Underground Facility, if requested, to
enable the Second Carrier to complete its Facilities Access
Application.
(7) To the extent necessary to assist the First Carrier to assess
a Facilities Access Application, the Second Carrier must
include technical information in its Facilities Access
Application, such as structural analyses and electromagnetic
energy tests, on how it proposes to install its Equipment
under its Work Plan and, if the Facilities Access Application
proposes that the Second Carrier undertake Make Ready
Work, how it proposes to undertake that Make Ready Work.
(8) Further to sub-clause 2.1(6) of Annexure B, the Second
Carrier must warrant the accuracy of all technical
information included in support of its Facilities Access
Application and provide details to the First Carrier of the
qualifications of the persons responsible for providing that
information.
(9) Pursuant to sub-clause 2.1(7) of Annexure B, in the event
that Carriers are unable to agree on the application of the
warrant specified in sub-clause 2.1(6) of Annexure B,
Carriers must engage in dispute resolution, as set out
in Chapter 2 of the main Code.
2.2 Assessment of Facilities Access Application
For access to Underground Facilities which are less than 2 km,
between 2 and 10 km and more than 10 km in length, the First
Carrier must notify the Second Carrier within fifteen, twenty
or twenty five Business Days respectively, or such other time
as agreed, whether:
(i) it accepts the application; or
(ii) it will reject the application.
2.3 Proposal to reject an application
(1) If the First Carrier proposes to reject the application of the
Second Carrier on technical grounds it must provide the
Second Carrier with a written explanation of its concerns
and meet within ten Business Days of receiving the
application to discuss those concerns. Carriers must make
reasonable endeavours to develop a strategy for managing
access to the Underground Facility which addresses the
reasonable concerns of each Carrier. An alternative strategy
may include a reasonable alternative route, if one is
available, or could be made available.
(2) After the initial meeting referred to in sub-clause 2.3(1)
of Annexure B, the First Carrier must, if requested by the
Second Carrier, within five Business Days of the Second
Carrier’s request, submit a request to the ACA for the issue
of a certificate under clause 35(3) of Schedule 1, Part 5 of
the Act. If the Second Carrier does not make such a request
within 15 Business Days of the final meeting, the First
Carrier may deem the Second Carrier’s application to have
been withdrawn. At the same time as the First Carrier
submits a request to the ACA it shall notify the Second
Carrier of that request.
(3) In the event that, following a request from the First Carrier
and its assessment of that request, the ACA does not issue
a certificate stating that access would not be technically
feasible, then, for the purposes of this Code, the First Carrier
will be deemed to have accepted the Facilities Access
Application.
(4) Where an application has been rejected by the First Carrier
for technical reasons, the Second Carrier is entitled to
resubmit an amended application at any time, and the
proposal must will be reconsidered in accordance with
clause 2.2 of Annexure B. If the amended application is
re-submitted within one month of the previous application
then the First Carrier must provide the notification required
within ten Business Days of receiving an amended
application.
(5) If the First Carrier proposes to reject the application of the
Second Carrier on other than technical grounds, it must
provide the Second Carrier with a written explanation of its
concerns and meet with the Second Carrier within ten
Business Days of receiving the application to discuss those
concerns. Carriers must make reasonable endeavours
to develop a strategy for managing access to the Eligible
Facility which addresses the reasonable concerns of each
Carrier.
Part 3.— Termination of Access
3.1 Standard term of access
Unless otherwise agreed between the parties, a standard access
term for a particular Underground Facility should be the lesser of:
(a) fifteen years; or
(b) the term of the First Carrier’s rights of tenure in respect
of that Underground Facility; or
(c) the period equal to the remaining economic life of the
Underground Facility.
3.2 Termination by First Carrier
In regard to an Underground Facility, if the First Carrier:
• intends to decommission the Underground Facility and
terminate the provision of access to that Underground
Facility, and
• the Second Carrier wishes to continue to use that
Underground Facility;
(a) the Carriers must endeavour to agree on arrangements
to permit the Second Carrier to continue to use the
Underground Facility;
(b) the Second Carrier that was the first Carrier to share the
Underground Facility (and if shared initially by more than
one Second Carrier, by agreement between the Second
Carriers) must take ownership of the Underground Facility
from the First Carrier;
(c) the First Carrier must indemnify the Second Carrier against
any claims in respect of the First Carrier’s use of the
Underground Facility;
(d) upon vacation of the Underground Facility by the First
Carrier, ownership of the Underground Facility must be
assigned to the Second Carrier, whereupon that Second
Carrier will be the First Carrier;
(e) the Second Carrier which takes the ownership of the
Underground Facility must indemnify the First Carrier
against any claims, damages, expenses or liabilities in
respect of the Underground Facility arising after the date
of the assignment or novation.
3.3 Termination by Second Carrier
If the Second Carrier decides to cease using an Underground
Facility and the First Carrier wishes to continue using the
Underground Facility, the Second Carrier must indemnify the First
Carrier against any claims in respect of the Second Carrier’s use
of the Underground Facility.
SCHEDULE B1. ACCESS PROCEDURE —
FIRST CARRIER PERFORMS
MAKE READY WORK
1. Conduct of a Detailed Field Study
(1) Within twenty Business Days of the First Carrier accepting
the Second Carrier’s Facilities Access Application, the
Second Carrier may make a written request for a Detailed
Field Study to be completed by the First Carrier. The
Detailed Field Study must encompass a confirmation (or
variation) of the results of the First Carrier’s preliminary
assessment of access to the Underground Facility and the
development of a Make Ready Work proposal by the First
Carrier.
(2) The Second Carrier’s written request for a Detailed Field
Study must contain at least the following:
(i) a formal request for a Detailed Field Study;
(ii) a reference to the preceding preliminary assessment
of access;
(iii) any relevant changes or updates to previously supplied
information; and
(iv) a proposed timeframe for meetings with the First Carrier,
to be held during the period in which the First Carrier
must complete the Detailed Field Study in order to
discuss and endeavour to agree on the matters listed
at sub-clause 1(3) of this Schedule.
(3) The Parties must discuss the request for a Detailed Field
Study and endeavour to agree on:
(i) which parts of the Detailed Field Study, Make Ready
Work and work for installation of the Equipment in the
First Carrier’s Underground Facility are to be carried out
by each of the Parties;
(ii) what information is to be exchanged in order for each
Party to undertake tasks agreed in sub-clause 1(3)(i)
of Schedule B1;
(iii) timing targets for the exchange of information under
sub-clause 1(3)(ii) of Schedule B1 and completion of the
Detailed Field Study;
(iv) matters relating to the timing of any necessary
switch-offs during Make Ready Work and/or the
installation of the Equipment;
(v) the Work Plan setting out the method and procedures
that the Second Carrier will use in installing its
Equipment in the Underground Facility;
(vi) time required to deliver access;
(vii)charges for the undertaking of the Detailed Field Study;
and
(viii)any other outstanding issues in connection with the
Detailed Field Study.
(4) If a Detailed Field Study request is made to the First Carrier
then, within the time period specified in clause 1(5)
of Schedule B1, the First Carrier must advise the Second
Carrier on:
(i) confirmation of the results of the preliminary assessment
of access or details and explanation of any variation to
the results of the preliminary assessment of access;
(ii) details of Make Ready Work required (including who
will be responsible for undertaking each part) and the
time required to perform the Make Ready Work;
(iii) cost of Make Ready Work;
(iv) the basis upon which access charges will be levied;
(v) time required to deliver access after an Order has been
made by the Second Carrier in accordance with clause
3 of Schedule B1;
(vi) the Underground Facility’s security classification for
physical access purposes; and
(vii)other matters as agreed between the parties.
(5) If the Eligible Facility is an Underground Facility which
is equal to or less than 2 km in length, the time specified for
completion of a Detailed Field Study is as soon as is
reasonably practicable and at least within fifteen Business
Days of the request for a Detailed Field Study. For
Underground Facilities which are more than 2 km but less
than 10 km in length, the time specified for completion of
a Detailed Field Study is as soon as is reasonably practicable
and at least within twenty Business Days of the request for
a Detailed Field Study. For Underground Facilities which
are more than 10 km in length, the time specified for
completion of a Detailed Field Study is as soon as
is reasonably practicable and at least within twenty five
Business Days of the request for a Detailed Field Study
(6) If the First Carrier discovers a material error in a valid advice
before the First Carrier has accepted an Order by the Second
Carrier in accordance with clause 3, it must advise the
Second Carrier as soon as practicable and correct the
advice. Where the corrected advice curtails, reduces or
delays access to the Underground Facility, the First Carrier
must consult with the Second Carrier on alternatives which
would satisfy the Second Carrier’s requirements, either on
an interim or continuing basis.
2. Time Extension for the conduct
of a Detailed Field Study
(1) If the First Carrier considers that it is unable to complete
a Detailed Field Study in regard to access to an Eligible
Facility within the period specified in sub-clause 1(5) of
Schedule B1, and requires further time to consider the
access application, the parties must make reasonable
endeavours, acting in good faith, to discuss and agree on
a period for a time extension in which to complete that
study.
(2) If agreement on a time extension cannot be reached then
Carriers must engage in dispute resolution, as set out in
Chapter 2 of the main Code.
(3) In the event that carriers agree to the appointment of an
independent expert to determine whether an extension
should be given , or the ACCC is required to arbitrate on the
matter, then that expert, or the ACCC, must consider the
following factors to the extent those factors are relevant:
• the complexity of the request for access;
• the complexity or remoteness of the Underground
Facility to which access has been sought;
• the number of requests, both internal and external,
which the First Carrier has received;
• whether Detailed Field Studies have been previously
undertaken in relation to the Eligible Facility;
• weather conditions in the area where the Eligible
Facility is located;
• the time taken for the Second Carrier to provide
additional information; and
• the time taken to evaluate any additional information
provided by the Second Carrier.
(4) Any time extension granted by an independent expert or the
ACCC must take effect immediately after the expert or the
ACCC notifies the First and Second Carrier of its decision.
If the expert or ACCC refuses to grant an extension, then the
First Carrier must complete the Detailed Field Study within
the period specified in sub-clause 1(5) of Schedule B1 or
some other period determined by the expert or the ACCC.
(5) The First Carrier must continue to carry out the Detailed
Field Study pending the decision of an independent expert
or the ACCC and, where appropriate, it must inform that
expert of the progress of performing the Detailed Field Study.
3. Order for access by Second Carrier
(1) If the Second Carrier wishes to make an Order for access
to the Underground Facility, it must do so within thirty
Business Days of being advised of the results of the relevant
Detailed Field Study.
(2) An Order must be consistent with the Equipment, plant,
work, costs and charge details specified in the Detailed Field
Study. If the First Carrier determines that an Order in whole
or any part thereof is inconsistent with the relevant Detailed
Field Study, it must consult with the Second Carrier with
a view to overcoming any inconsistencies within five
Business Days.
(3) The Second Carrier’s Order must specify in writing:
(a) the term of access requested;
(b) any reasonable written instructions applicable to the
installation of Equipment pursuant to Schedule 1 of the
Act, which must be no more stringent than those
applying to the First Carrier;
(c) a description of Equipment to be installed by the
Second Carrier and/or a description of the Underground
Facility; and
(d) the required delivery date and physical arrangements
for the access to the Underground Facility and/or
Equipment to be installed by the Second Carrier
referred to in sub-clause 3(3)(c) of Schedule B1.
(4) If it is necessary to obtain:
(a) permits, approvals, or licences required from any
governmental, regulatory or public authority, agency
or body; and/or
(b) any consent of any owner, landlord, licensor or
mortgagee (including any agreement, determination
or consent required under any Aboriginal, heritage,
or native title rules);
in relation to the installation, repair, testing, operation,
maintenance, or removal of Equipment, the Second Carrier
must make reasonable endeavours to obtain the same.
It should bear the cost of obtaining, such permission,
approvals and it must provide a copy of all permits,
authorisations, consents and other approvals to the First
Carrier. If the law or government regulations require that the
First Carrier obtain such permission, approvals or
authorisations, then it must make reasonable endeavours to
do so but at the Second Carrier’s expense. If any such permit,
approval, licence, consent, agreement or determination
cannot be obtained then the Second Carrier must not install
its Equipment.
4. Response to Order for access
(1) Within ten Business Days of a receipt of an Order the First
Carrier must give written acknowledgment of the receipt
of that Order and provide a Response.
(2) A Response to an Order must specify, in writing:
(i) details of Make Ready Work;
(ii) the applicable access charge;
(iii) the description of Underground Facility to which access
is sought and the Equipment to be installed by the
Second Carrier;
(iv) the Advised Delivery Date; and
(v) any reasonable instructions applicable to the Equipment
to be installed by the Second Carrier, which must be no
more stringent than those applying to the First Carrier.
(3) Subject to sub-clause 4(4) of Schedule B1, the First Carrier
must deliver access to the Underground Facility in respect
of which an application has been accepted on the Advised
Delivery Date or as otherwise agreed.
(4) The First Carrier is not obliged to deliver access on the
Advised Delivery Date if Make Ready Work cannot be
reasonably completed, due to unforseen circumstances
or circumstances beyond the First Carrier’s control before
that date, and notice has been given to the Second Carrier,
in which case access will be delivered on a agreed date,
which must be as soon as reasonably practicable after the
Advised Delivery Date.
(5) If access to the Underground Facility has been granted and
notwithstanding the Make Ready Work, the Second Carrier
is unable to install its Equipment, it must consult the First
Carrier’s Proper Officer with a view to resolving any issues
which are the responsibility of the First Carrier under this
Code. The First Carrier must complete any work for which
it is responsible under this Code as soon as reasonably
practicable following such consultation.
5. Delivery of Access
(1) A First Carrier must notify the Second Carrier of Delivery
of Access by a facsimile advice, at the completion of Make
Ready Work done by the First Carrier.
(2) Prior to the Delivery of Access, the First Carrier must
perform all Make Ready Work which it has agreed
to perform and perform that work as soon as reasonably
practicable.
6. Variation of Make Ready Work
(1) If, after the commencement of specific Make Ready Work,
the First Carrier determines that the actual cost of carrying
out the Make Ready Work is likely to exceed the Make
Ready Costs specified in the acceptance of the Order
by more than a certain proportion as agreed between the
parties because of unforeseen circumstances
or circumstances beyond its control:
(i) the First Carrier must immediately suspend all work
on the Make Ready Work and advise the Second Carrier
accordingly; and
(ii) as soon as practicable, the First Carrier must provide
a Work Variation Report to the Second Carrier setting
out the nature and extent of the additional Make Ready
Work, the revised Make Ready Costs and any revised
Advised Delivery Date; and
(iii) upon receipt of a Work Variation Report, the Second
Carrier must either request the First Carrier to carry out
the Make Ready Work at the revised Make Ready Costs
(and by the revised Delivery Date) or inform the First
Carrier that it does not wish to proceed with the Make
Ready Work (in which case the Second Carrier will be
liable to pay Make Ready Costs only to the extent then
incurred by the First Carrier).
(2) The First Carrier must not incur any penalty or liability to the
Second Carrier by reason of the suspension of Make Ready
Work pursuant to this paragraph and the Advised Delivery
Date will, to the extent required, be adjusted to take into
account the additions to or variations in Make Ready Work.
7. Cancellation and variation
of accepted Orders
If the Second Carrier cancels or varies its Order between the date
of acceptance and the Advised Delivery Date, the First Carrier
must make reasonable endeavours to mitigate any loss by seeking
to re-use the Equipment or Underground Facility. The Second
Carrier must pay the amount of any loss suffered by the First
Carrier, to the extent that it has not been mitigated.
In this paragraph, ‘loss’ means
(a) the costs which have been necessarily incurred by the First
Carrier on the basis of the Order and which will not be
otherwise reimbursed following the cancellation of the
Order;
(b) the costs of capital relating to the holding of Equipment
or Underground Facility until use, disposal or reuse, and any
costs necessarily incurred in arranging for such use, disposal
or reuse.
8. Installation of Equipment by Second Carrier
The Second Carrier must install its Equipment in accordance with
the Work Plan included in its Facilities Access Application and
within three months of the completion of Make Ready Work.
9. Completion Inspection
Unless Carriers otherwise agree, upon completion of installation
work by the Second Carrier, there must be a joint on-site
inspection by the First Carrier and Second Carrier to ensure that
Make Ready Work and Installation Work have been satisfactorily
completed and to agree whether space accessed and installed
Equipment are in accordance with the details of an approved
Facilities Access Application. The scope of the completion
inspection must be agreed to by the Carriers.
SCHEDULE B2. ACCESS PROCEDURE —
SECOND CARRIER PERFORMS
MAKE READY WORK
Access to Existing Underground Facility
1. Construction and Work Plan
(1) Within fifteen Business Days of notifying the Second Carrier
that it agrees to share an Underground Facility, the First
Carrier must, subject to clause 2.1 of the main Code,
provide the Second Carrier with any information reasonably
requested by it for the purpose of it preparing the Draft
Construction and Work Plan referred to in sub-clause 1.1(2)
of Schedule B2, including provision of plans and surveys for
the Underground Facility and/or Equipment located in it,
provided that nothing in this clause obliges a First Carrier
to provide information if the provision of that information
would result in the First Carrier breaching obligations it
owes to third parties.
(2) After being provided with the information and material
referred to in sub-clause 1(1) of Schedule B2, the Second
Carrier must, within twenty Business Days, submit to the
First Carrier a Draft Construction and Work Plan, comprising
draft plans and a construction timetable for Make Ready
Work and the Second Carrier’s Work Plan, which must
include information relating to the:
• installation of all Equipment; and
• the method and procedures that the Second Carrier
will use in installing its Equipment in the Underground
Facility.
(3) The Second Carrier is responsible for ensuring that:
(i) the Draft Construction and Work Plan is prepared
by a suitably qualified and experienced engineer;
(ii) the Draft Construction and Work Plan includes
a structural analysis and that physical inspections have
been carried out;
(iii) the Draft Construction and Work Plan is prepared
in accordance with standard industry practices, or, if the
First Carrier has higher standards which are reasonable,
in accordance with the First Carrier’s practices; and
(iv) all relevant checks, inquiries and analyses necessary
for the preparation of the Draft Construction and Work
Plan are performed and that they are performed in
accordance with standard industry practice or, if the
First Carrier has higher standards which are reasonable,
in accordance with the First Carrier’s practices.
(4) The Draft Construction and Work Plan is subject
to acceptance by the First Carrier, which is not to
be unreasonably withheld.
(5) The First Carrier must notify the Second Carrier, in writing,
within fifteen Business Days of the receipt of the Draft
Construction and Work Plan, if it proposes to reject the Draft
Construction and Work Plan, or if it agrees to proceed on
the basis of that Draft Construction and Work Plan
to develop a Final Construction and Work Plan.
(6) As part of the formulation of the Final Construction and
Work Plan, the parties must agree on assigned places in
the Underground Facility for each Carrier to locate its own
Equipment and a timetable for the installation of that
Equipment.
(7) Before deciding to reject the Draft Construction and Work
Plan, the First Carrier must, within ten Business Days of
receipt of the Draft Construction and Work Plan, identify
its concerns so as to permit the Second Carrier to revise
the Draft Construction and Work Plan and resubmit it
in accordance with sub-clause 1.1(2) of Schedule B2.
(8) The First Carrier must identify reasons for rejecting the Draft
Construction and Work Plan and may only reject the Draft
Construction and Work Plan if:
• it is inconsistent with the proposal or plans provided
as part of the Facilities Access Application;
• the plan is not prepared in accordance with standard
industry practices and/or standards, or, if the First
Carrier has higher standards or practices which are
reasonable, in accordance with the First Carrier’s
standards or practices; or
• it is likely to cause substantial operational difficulties; or
• it was not prepared by a suitably qualified and
experienced engineer.
In the event that agreement cannot be reached between the First
and Second Carrier on the Construction and Work Plan, the
Carriers must engage in dispute resolution, as set out in Chapter
2 of the main Code.
2. Permits and approvals
(1) If it is necessary to obtain:
(a) any permits, approvals or licences from any
governmental, regulatory or public authority, agency
or both; and/or
(b) any consent of any owner, landlord, licensor or
mortgagee (including any agreement, determination
or consent required under any Aboriginal, heritage or
native title laws),
in relation to any Make Ready Work, the Second Carrier must
make reasonable endeavours to obtain the same, and it must
bear the cost of obtaining such permission, approvals,
licences, consent, agreement or determination and it must
provide a copy of all permits, authorisations, consents and
other approvals to the First Carrier. If the law or government
regulations require that the First Carrier obtain such
permission, approvals or authorisations, then it must make
reasonable endeavours to do so but at the Second Carrier’s
expense. If any such permit, approval, licence, consent,
agreement or determination cannot be obtained then the
Second Carrier must not install its Equipment.
(2) The Second Carrier must commence obtaining any such
permit, approval, licence or consent referred to in sub-clause
2(1) of Schedule B2 and commence ordering and installing
its Equipment as soon as reasonably practicable.
(3) A Carrier must provide such co-operation which the other
Carrier reasonably requires in obtaining any permission,
approvals, licences necessary for occupation of the
Underground Facility as a Shared Underground Facility.
3. Conduct of Make Ready Work
(1) The Second Carrier must bear all costs of preparing and
establishing Make Ready Work and all reasonable legal and
other costs incurred by the First Carrier and any existing
Second Carrier or Third Party User using the Underground
Facility.
(2) Subject to sub-clause 3(3) of Schedule B2, the Second
Carrier must carry out Make Ready Work in accordance with
the agreed Construction and Work Plan and provide a copy
of diagrams showing any modifications made to the Eligible
Facility and the location of the Second Carrier’s installed
Equipment.
(3) If, after the commencement of Make Ready Work, the
Second Carrier determines that it must depart from the Final
Construction and Work Plan, then it may do so, providing
it has secured the agreement of the First Carrier that such
a departure would not have a material impact on the First
Carrier’s use of the Underground Facility. In the event that
the Carriers cannot agree on whether a variation to Make
Ready Work would have a material impact on the First
Carrier’s use of the Underground Facility, then the Carriers
must engage in dispute resolution, as set out in Chapter 2
of the main Code.
(4) In carrying out the Make Ready Work, the Second Carrier
must take all reasonable steps to ensure that all such work
is carried out so far as practicable within the construction
timetable included in the Final Construction and Work Plan
and must notify the First Carrier of any delays which it
anticipates as soon as practicable after becoming aware
that such delays will occur.
(5) As soon as reasonably practicable after the completion
of Make Ready Work, the Second Carrier must install its
Equipment in accordance with the Final Construction and
Work Plan that has been accepted by the First Carrier. Each
Carrier will be responsible for the installation of its own
Equipment in any existing Underground Facility.
(6) Physical access to undertake Make Ready Work and install
Equipment must be in accordance with the procedures
set out in clause 1.2 of Annexure B. In addition, a First
Carrier may choose to accompany the Second Carrier’s
representatives in undertaking the Make Ready Work or
installing its equipment provided that the Second Carrier
may gain physical access in accordance with the notification
times set out in clause 1.2 of Annexure B and that the First
Carrier meets its own cost of attending.
4. Completion inspection
Unless Carriers otherwise agree, upon completion of installation
work, there must be a joint on-site inspection by the First Carrier
and Second Carrier to ensure that Make Ready Work and
Installation Work have been satisfactorily completed and to agree
whether space accessed is in accordance with an approved
Facilities Access Application. The scope of the completion
inspection must be agreed by the Carriers.
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