Case: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436 ; (2008) 171 FCR 174
Outcome: referred to
I have previously heard and determined three proceedings in which Telstra challenged FDs made by ACCC in relation to access disputes under Div 8: see Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436 ; (2008) 171 FCR 174 (Earlier Reasons) and Telstra Corporation Ltd v Australian Competition and Consumer Commission and Others (No 2) (2008) 251 ALR 372; [2008] FCA 1640. 498 All 14 applications should be dismissed with costs. I certify that the preceding four hundred and ninety-eight (498) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 17 July 2009 Telstra Corporation Limited v ACCC and Optus Networks Pty Limited (proceeding NSD 717/2008) and XYZed Pty Limited (proceeding NSD 529/2008): Counsel for the Applicant: Dr J E Griffiths SC and Ms M N Allars Solicitors for the Applicant: Mallesons Stephen Jaques Counsel for the First Respondent: Mr J S Hilton SC and Mr M H O'Bryan Solicitor for the First Respondent : Australian Government Solicitor Counsel for the Second Respondents: Mr A Robertson SC and Mr S J Free Solicitors for the second Respondents: Clayton Utz Telstra Corporation Limited v ACCC and Agile Pty Ltd (proceeding NSD 69/2008), Adam Internet Pty Limited (proceeding NSD 70/2008), Primus Telecommunications Pty Limited (proceeding NSD 72/2008), Amcom Pty Ltd (proceeding NSD 73/2008) NetworkTechnology (Aust) Pty Ltd (proceeding NSD 75/2008), Primus Telecommunications Pty Limited (proceeding NSD 78/2008), Macquarie Telecom Pty Limited (proceeding NSD 105/2008, PowerTel Limited (proceeding NSD 531/2008), Request Broadband Pty Ltd (proceeding NSD 533), Chime Communications Pty Ltd (proceeding NSD 718/2008) and Primus Telecommunications Pty Limited (proceeding NSD 719/2008) Counsel for the Applicant: Dr J E Griffiths SC and Ms M N Allars Solicitors for the Applicant: Mallesons Stephen Jaques Counsel for the First Respondent: Mr J S Hilton SC and Mr M H O'Bryan Solicitor for the First Respondent : Australian Government Solicitor Counsel for the Second Respondents: Ms M Sloss SC and Mr M J Hoyne Solicitors for the Second Respondents, except Macquarie Telecom Pty Limited: Herbert Geer Solicitors for Macquarie Telecom Pty Limited: Nicholls Legal Telstra Corporation Limited v ACCC and TPG Internet Pty Ltd (proceeding NSD 77/2008)) Counsel for the Applicant: Dr J E Griffiths SC and Ms M N Allars Solicitors for the Applicant: Mallesons Stephen Jaques Counsel for the First Respondent: Mr J S Hilton SC and Mr M H O'Bryan Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr M J Hoyne Solicitors for the Second Respondent: Nicholls Legal Dates of Hearing: 25, 26, 27 August, 8, 9, 10, 11, 12, 19 September 2008 Date of Judgment: 17 July 2009 ANNEXURE Acronyms and Terms 2002 LSS Pricing Principles Pricing principles made by ACCC pursuant to s 152AQA of the Act in August 2002 (set out in Ch 7 of the LSS Declaration Final Report). 2002 ULLS Pricing Principles Pricing principles for the ULLS that were contained in Chapter 4 of ACCC's final report on pricing methodology for the ULLS that was published in March 2002. 2003 ULLS Model Terms See ULLS Model Terms 2007 LSS Pricing Principles Pricing principles made by ACCC pursuant to s 152AQA of the Act, by an instrument that was dated 24 October 2007, and registered in the Federal Register of Legislative Instruments on 14 December 2007, supported by reasons in Ch 3 of the LSS Declaration Review. 2007 ULLS Pricing Principles Pricing principles for the ULLS determined by ACCC under s 152AQA of the Act on 21 November 2007 in Pricing Principles for the Unconditioned Local Loop Service . 2007 ULLS Pricing Principles Report ACCC's report of November 2007 on pricing principles in relation to the ULLS to be made pursuant to s 152AQA of the Act see 2007 ULLS Pricing Principles. 2008 ULLS Pricing Principles and Indicative Prices Pricing principles and indicative prices for the ULLS determined by ACCC under s 152AQA of the Act in June 2008 in Unconditioned Local Loop Service: Pricing Principles and Indicative Prices . AAAP Amcon, Adam, Agile and Primus, four access seekers who made a joint submission in the ACCC arbitrations. ACCC Australian Competition and Consumer Commission, the first respondent (also referred to as the Commission). Access Dispute Resolution Guidelines ACCC's Resolution of telecommunications access disputes a guide (revised version) made in March 2004, sections 7.4.2 to 7.4.6 of which contained backdating guidelines formulated under s 152DNA(8). Access provider Carrier or carriage service provider that supplies declared services to itself or other persons see s 152AR of the Act. For present purposes the only relevant access provider is Telstra. access seeker A service provider that makes, or proposes to make, a request for access to a declared service under s 152AR of the Act. In each of the present fourteen proceedings, the second respondent is an access seeker. ACIF Australian Communications Industry Forum. Act Trade Practices Act 1974 (Cth). Adam Adam Internet Pty Limited, the second respondent in proceeding NSD 70/2008. ADC Access Deficit Contribution. ADJR Act Administrative Decisions (Judicial Review) Act 1977 (Cth). ADSL Asymmetric Digital Subscriber Line. A compression technology that supports high speed digital services over conventional copper telephone lines. Agile Agile Pty Ltd, the second respondent in proceeding NSD 69/2008. AI Act Acts Interpretation Act 1901 (Cth) Amcom Amcom Pty Ltd, the second respondent in proceeding NSD 73/2008. Annual Access Charges The annual charge payable for access to a declared service, often payable monthly and sometimes referred to as a monthly access charge. Broadband Imprecise, but often used to refer to telecommunications capable of providing multiple channels of data over a single communications medium, typically using some form of frequency or wave division multiplexing. CAN Customer Access Network. The portion of the PSTN which comprises the transmission system connecting customers to an aggregation point within the network (usually a local exchange building). In Australia, that connection is normally achieved by copper wire pairs. CDNO Call Diversion (Number Only). Chime Chime Communications Pty Ltd, the second respondent in proceeding NSD 718/2008. Churn The transfer of a telecommunications customer from one provider to another, such as from Telstra to Request or from Request to Chime or from Adam to Telstra. CRA Customer Relationship Agreement DFD A Draft Final Determination that is provided by ACCC to Telstra and an access seeker in an arbitration under Div 8 of Pt XIC of the Act, on which they are invited to make submissions. DFD Consultation Paper A consultation paper that is provided by ACCC to the parties to an access dispute arbitration, accompanying ACCC's DFD in that arbitration. See DFD. DFD Supplementary Consultation Paper DFD supplementary consultation paper issued by ACCC to the parties to the ADAM LSS arbitration on 7 November 2007. DSL Digital Subscriber Line. DSL services are provided over the high frequency spectrum of a ULL. DSLAM Digital Subscriber Line Access Multiplexer D-ULLS (or DULLS) Diversion ULLS. A species of call diversion that is required in the context of ULLS ordering and provisioning. Earlier Reasons The reasons of the Court in Telstra Corporation Ltd v Australian Competition &amp; Consumer Commission [2008] FCA 1436 ; (2008) 171 FCR 174 End-user A retail customer of a service provider. FD Final Determination. It is the various FDs in the 14 arbitrations under Div 8 of Pt XIC of the Act that are the subject of Telstra's challenge in the 14 proceedings. FD Statement of Reasons A statement of ACCC's reasons supportive of, and accompanying, an FD. Findings or Four Findings The four factual findings made by ACCC in each LSS arbitration, identified as "Findings 1,2,3 and 4" or "the Findings" or "the Four Findings" LI Act Legislative Instruments Act 2003 (Cth) Local loop Line between end-user's premises and a local exchange. LNP Local Number Portability. LSS Line Sharing Service (also known as the High Frequency Unconditioned Local Loop Service). The LSS was defined in the LSS Extension Declaration (the definition appears at [20] in these reasons). LSS Annual Charge Annual charge made or to be made by Telstra to the access seekers for access to the LSS, payable monthly, and sometimes referred to as "LSS monthly charge." LSS Declaration Declaration of the LSS as a declared service under s 152AL of the Act with effect on 16 October 2002. With effect from 3 December 2003, the expiry date of the LSS Declaration was extended to 31 October 2007. By the LSS Extension Declaration, the expiry date of the LSS Declaration was further extended to 31 July 2009 (see LSS Extension Declaration). LSS Declaration Final Report ACCC's Line Sharing Service: Final Decision on whether or not a Line Sharing Service should be declared under Pt XIC of the Trade Practices Act 1974 published in August 2002 following ACCC's inquiry into whether or not an LSS should be declared under Pt XIC of the Act. LSS Declaration Review ACCC's Review of the LSS Declaration published in October 2007 which supported extension of the expiry date of the LSS Declaration resulting in the LSS Extension Declaration, and which contained in chapter 3 ACCC's reasons for the 2007 LSS Pricing Principles. LSS Extension Declaration This declaration of ACCC dated 26 October 2007 and published in the Gazette on 29 October 2007 extended the expiry date of the LSS Declaration from 31 October 2007 to 31 July 2009. LSS Monthly Charge Undertaking Assessment See ULLS and LSS Monthly Charge Undertaking Assessment. LSS Pricing Principles or 2007 LSS Pricing Principles Pricing principles determined by ACCC in relation to the LSS pursuant to s 152AQA of the Act. The 2002 LSS Pricing Principles were set out in Ch 7 of the LSS Declaration Final Report. The 2007 LSS Pricing Principles were determined by an instrument dated 24 October 2007 that was registered in the Federal Register of Legislative Instruments on 14 December 2007 with effect on and from 15 December 2007. LTIE Long-term interests of end-users. The object of Pt XIC of the Act is to promote the LTIE (s 152AB(1)) and the LTIE is a matter that ACCC must take into account in making a final determination in resolution of a dispute over access to a declared service (s 152CR(1)(a)). Macquarie Macquarie Telecom Pty Limited, the second respondent in proceeding NSD 105/2008. MNM Managed Network Migration. A transfer or migration of services that is achieved by a coordinated cancellation and connection of services to be distinguished from "single" disconnections and connections. Narrowband A reference to the low frequency spectrum or voiceband frequency spectrum. Network Network Technology (Aust) Pty Ltd, the second respondent in the proceeding NSD 75/2008. Optus Optus Networks Pty Limited, the second respondent in Proceeding NSD 717/2008. PowerTel PowerTel Limited, the second respondent in proceeding NSD 531/2008. Pooling and Allocation Method A method of arriving at the specific cost component to be included in the Annual Charge for access to the LSS according to which the specific cost of providing access to the LSS is pooled with the specific cost of providing access to the ULLS and Telstra's internal equivalent cost for ADSL, and the pool is allocated across the number of active LSS, ULLS and ADSL lines. Primus Primus Telecommunications Pty Limited, the second respondent in proceedings NSD 72/2008, 78/2008 and 719/2008. PSTN Public Switched Telephone Network. The switched telephone telecommunications network to which public customers can be connected. The infrastructure for basic telecommunications services (including telephones, switches, local and trunk lines, and exchanges), enabling any customer to call and communicate with any other customer. Request Request Broadband Pty Ltd, the second respondent in proceeding NSD 533 of 2008. SAOs Standard access obligations provided for in s 152AR of the Act. Service provider The provider of a service to an end-user. The service provider will previously have been an access seeker in respect of a declared service. SIO Service in operation. Telephony A generic term describing voice telecommunications. Telstra Telstra Corporation Limited, the applicant in each of the 14 proceedings. TPG TPG Internet Pty Ltd, the second respondent in proceeding NSD 77/2008. Tribunal Australian Competition Tribunal TSLRIC Total Service Long-Run Incremental Cost. TSLRIC+ TSLRIC plus a contribution to indirect and overhead costs. TSLRIC++ TSLRIC+ plus an additional amount as an ADC. ULL Unconditioned Local Loop. The bare or unqualified wire between the end-user's premises and the local exchange. The LSS and the ULLS are both provided over the ULL. ULLS Unconditioned Local Loop Service. The ULLS was defined in the ULLS Re-Declaration (the definition appears at [21] of these reasons). ULLS Declaration Declaration of the ULLS as a declared service under s 152AL with effect on 11 August 1999, by an instrument dated 4 August 1999 that was gazetted on 11 August 1999. The description of the ULLS as declared was varied by an instrument dated 18 May 2000 that was gazetted on 24 May 2000 with effect on that date. By an instrument dated 28 July 2006 that was gazetted on 9 August 2006, ACCC re-declared the ULLS as a declared service with effect on 1 August 2006 and expiring on 31 July 2009. ULLS Model Terms (or 2003 ULLS Model Terms) Model terms and conditions relating to the ULLS made by ACCC in October 2003 pursuant to s 152AQB(2) of the Act in Final Determination for Model Price Terms and Conditions of the PSTN, ULLS and LCS Services . ULLS Monthly Charge Undertaking Assessment ACCC's final report of August 2006 assessing Telstra's proferred ULLS monthly charge undertaking. ULLS and LSS Monthly Charge Undertaking Assessment ACCC's final report published in December 2005 on its assessment of Telstra's proffered ULLS and LSS monthly charge undertakings. ULLS Pricing Principles (or 2007 ULLS Pricing Principles) Pricing Principles applicable to the ULLS determined pursuant to s 152AQA of the Act on, and commencing on, 21 November 2007. ULLS Re-Declaration See the last sentence under "ULLS Declaration". ULLS Undertakings Discussion Paper ACCC's March 2005 Telstra's Undertakings for the Unconditioned Local Loop Service . WACC Weighted Average Cost of Capital. A reference to the average cost to Telstra of attracting equity and loan capital investment in its business, determined in accordance with a formula. WLR Wholesale Line Rental service. xDSL The "family" of DSL services, including ADSL services. XYZed XYZed Pty Limited, the second respondent in proceeding NSD 529/2008. AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/757.html