EXPLANATORY STATEMENT
Telecommunications Act 1997
Carrier Licence Conditions (NT Technology Services Pty Ltd) Declaration 2014
Issued by the authority of the Minister for Communications
Legislative Basis
Subsection 63(2) of the Telecommunications Act 1997 (the ‘Act’) provides that the Minister may, by written instrument, declare that a particular carrier is subject to licence conditions as specified in the instrument.
Purpose of the Declaration
The purpose of the declaration is to impose a new obligation upon the carrier,
NT Technology Services Pty Ltd (‘NTTS’), to connect (or arrange for another person on its behalf to connect), upon reasonable request, any premises located within any of NTTS’ five network footprints (as set out in Schedule 1 to the Declaration) to NTTS’ network.
References to ‘NTTS’ networks’ throughout this statement are references to the fibre to the premises (FTTP) network within the Victoria Harbour development area that is owned by Lend Lease Development Pty Ltd (ABN 33 000 311 277) and which are operated by NTTS in accordance with a nominated carrier declaration issued on
13 March 2014.
The Declaration is part of the implementation of the ‘adequately served’ policy, in respect of NTTS’ successful application under that policy, which is described in further detail below.
Background
On 27 April 2012 the then Minister released a policy paper, ‘Adequately served: criteria and assessment process to facilitate the rollout of the National Broadband Network (NBN)’ (the ‘adequately served policy paper’). The adequately served policy is designed to prevent the unnecessary duplication of FTTP networks, existing in residential estates as at 1 January 2012, which can deliver services that can meet the government’s objectives in relation to the FTTP component of the National Broadband Network (NBN).
Under the policy, NBN Co Limited (NBN Co) will not overbuild telecommunications networks that service residential premises where those networks are assessed by the Minister as meeting the adequately served criteria, except in those circumstances where not overbuilding a particular area will have a significant impact on NBN Co’s ability to efficiently roll out the network. In such circumstances, NBN Co may seek permission from the Minister to overbuild those networks. If permission is granted by the Minister, overbuild may occur, notwithstanding the fact that the network was granted adequately served status.
NTTS applied to have five specific components of the Victoria Harbour network (as listed at Schedule 1 to the Declaration) assessed, which have been determined by the Minister to meet the adequately served criteria.
As required under the policy, NTTS has committed to offer a connection for services to all customer premises in each of the five specified network components.
This commitment is being implemented through the Declaration, namely by way of a carrier licence condition under section 63(2) of the Act.
The effect of imposing the carrier licence condition and NBN Co being directed not to overbuild in the areas covered by the Declaration is to avoid unnecessary duplication of fibre networks in the same area, while ensuring that retail competition for products and services is supported on a non-NBN Co FTTP network.
All end users within each of NTTS’ nominated footprints will, upon reasonable request to NTTS, be able to have their premises connected to NTTS’ network.
The connection obligations imposed upon NTTS via the Declaration does not diminish or otherwise extinguish Telstra’s universal service obligation to supply standard telephone services to all people in Australia on request, both under the Telecommunications (Consumer Protection and Service Standards) Act 1999
(TCPSS Act) and its contract with the Telecommunications Universal Service Management Agency (TUSMA).
Consultation
Section 64 of the Act provides that before making an instrument under subsection 63(2) of the Act, the Minister must arrange for a draft version of the instrument to be provided to the licence holder and invite the holder to make a submission to the Minister on the draft. Consistent with this requirement, the then Minister for Broadband, Communications and the Digital Economy commenced the consultation period with NTTS on 23 July 2013.
The 30 day consultation period was scheduled to conclude on 22 August 2013, but was formally extended until 27 September 2013, and on the request of the applicant further extended until 13 December 2013.
On 4 December 2013, NTTS wrote to the Minister providing in-principle agreement to the carrier licence condition but requesting an update reflecting that Lend Lease Developments Pty Ltd is the owner of the infrastructure and NTTS operates the network under the provisions of a nominated carrier declaration (NCD). The department consulted with the ACMA and NTTS concurrently lodged an application for an NCD with the ACMA.
On 13 March 2014, the ACMA formally approved and registered the NCD, and on
14 March 2014, a copy of the NCD was published in the Gazette.
The Office of Best Practice Regulation has advised that a regulatory impact statement is not required for this instrument.
Details of the accompanying Declaration
The Declaration is a disallowable instrument for the purposes of the Legislative Instruments Act 2003.
Details of the accompanying Declaration are set out in Attachment 1.
Statement of Compatibility with Human Rights
A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out in Attachment 2.
Attachment 1
Details of the Carrier Licence Conditions (NT Technology Services Pty Ltd) Declaration 2014
Clause 1 – Name of Declaration
Clause 1 of the declaration provides that the name of the instrument is the Carrier Licence Conditions (NT Technology Services Pty Ltd) Declaration 2014.
Clause 2 – Commencement
Clause 2 provides that the declaration commences on the day after it is registered on the Federal Register of Legislative Instruments.
Clause 3 – Definitions
Subclause 3(1) sets out the key definitions used in the Declaration.
The term development area is used in clause 4 of the Declaration. It covers each of the five specified components of the Victoria Harbour network listed in Schedule 1 to the Declaration, and depicted in the map at Annexure A to Schedule 1. These are the areas: (i) serviced by Lend Lease’s FTTP telecommunications networks, which are operated by NTTS; and (ii) that have been determined by the Minister to meet the adequately served criteria under the adequately served policy. This term is used in defining the ‘Specified NTTS Networks’.
The term relevant premises has been used to make clear that premises that are occupied or used by an end-user and situated in the project area are taken to be relevant premises. This term is used in clause 4 of the Declaration which sets out the connection obligation.
The term Licensee refers to NT Technology Services Pty Ltd.
The term Specified NTTS Network means each of Lend Leases’ telecommunications networks which use FTTP architecture, are operated by the Licensee in accordance with a nominated carrier licence declaration issued on 13 March 2014 and are located in one of the five development areas (being the real estate development project areas listed in Schedule 1 to the Declaration and depicted in the respective map at
Annexure A to Schedule 1).
To aid the reader, a note is inserted at the end of clause 3 indicating that the terms carriage service, service provider, and telecommunications network have the same meaning as in section 7 of the Act.
Clause 4 – Obligation to connect premises
Subclause 4(1) sets out the operative carrier licence condition, namely, the requirement upon NTTS to connect relevant premises to its FTTP network so that a carriage service provider can provider any type of carriage service (e.g. standard telephone service, broadband internet service) to that end user.
The obligation is stated to apply ‘upon reasonable request’:
(a) directly by the end user; or
(b) by a service provider on the end user’s behalf.
Subclause 4(2) clarifies that a request for relevant premises to be connected to the relevant Specified NTTS Network may be made directly by an end user or by a carriage service provider on that end users behalf. This recognises that an end user may request connection to the Specified NTTS Network through that end user’s preferred retail service provider, who will supply that end user with retail carriage services over that network.
The ‘upon reasonable request’ requirement is included because there may be circumstances in which NTTS is prevented from connecting particular premises. For example, it would not be appropriate to require NTTS to connect relevant premises if doing so would pose, for whatever reason, a risk to the safety or health of NTTS’ employees or contractors. Another example where a request to connect would be unreasonable is where the premises is in a hazardous or dangerous area.
The connection obligation under clause 4(1) of the Declaration does not guarantee that end users situated in the relevant areas will be supplied services; rather, it requires that NTTS make available its network which will then enable a retail service provider to supply carriage services to the end user.
The universal service obligation (USO) set out in Part 2 of the TCPSS Act, remains the primary regulatory safeguard for ensuring that all people in Australia have reasonable access to a standard telephone service on an equitable basis, regardless of where they live or carry on business. Since 1 July 2012, Telstra has also had a contractual obligation to supply standard telephone services, which is overseen by TUSMA. The question of whether Telstra uses any of the five NTTS adequately served networks which are the subject of the Declaration, or another carrier’s network including its own, will be a commercial matter for the company to decide.
Schedule 1
Schedule 1 to the Declaration provides a list of the five real estate developments
(i.e. development areas) serviced by the Specified NTTS Network. The maps at Schedule 1 depict the respective geographical limits of the areas serviced by these networks.
Attachment 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Carrier Licence Conditions (NT Technology Services Pty Ltd) Declaration 2014
The Carrier Licence Conditions (NT Technology Services Pty Ltd) Declaration 2014 (the Declaration) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Declaration
The declaration has been made by the Minister for Communications (the Minister) under subsection 63(2) of the Telecommunications Act 1997 (the Act).
The networks owned and operated by NT Technology Services Pty Ltd (NTTS) have been determined to be ‘adequately serving’ the area depicted in the map annexed to the Declaration, in accordance with the government’s adequately served policy released on 27 April 2012. Under this policy, NBN Co Limited (NBN Co) is prevented from overbuilding residential premises passed by networks determined to be adequately served, except in circumstances where NBN Co obtains permission from the Minister to overbuild those premises. If permission is granted, overbuild may occur, notwithstanding that the network met the adequately served criteria.
The Declaration sets out a new carrier licence condition to be complied with by NTTS. This condition has been voluntarily agreed to by NTTS, as part of the adequately served determination process. Under this obligation, NTTS is required to connect (or arrange for another person on its behalf to connect) to its networks, upon reasonable request, premises located within any of the real estate development project areas listed at Schedule 1 to the Declaration.
The obligation under clause 4 does not guarantee that end user carriage services will be supplied services; rather, it requires that the Licensee make available its network to enable the supply of such services. The universal service (USO) obligation remains the primary legislative safeguard for ensuring that all people in Australia have reasonable access to a standard telephone service on an equitable basis, regardless of where they live or carry on business. Telstra’s supply of services under the USO continues to be governed by the provisions set out in Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999, as well as its contract with TUSMA.
No human rights issues were raised during consultation on the draft Declaration.
The imposition of the new carrier licence condition does not raise any human rights issues.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.