Document ID: chunk:federal_register_of_legislation:F2019L01248:reg:9
Version: federal_register_of_legislation:F2019L01248
Segment Type: reg
Provision Reference: reg 9
Character Range: 10432–13093

9  Determination by ACCC

Power to make determination
 (1) The ACCC must make a written determination of the terms and conditions of access.
 (2) The determination may deal with any matter relating to access, including matters that were not the basis for the notification of the dispute.
 (3) Without limiting subsection (2), the determination may:
 (a) require the access provider to give the access seeker access to a broadcasting transmission tower, designated associated facility or site;
 (b) require the access seeker to accept, and pay for, access to a broadcasting transmission tower, designated associated facility or site;
 (c) specify the terms and conditions on which the access provider is to comply with any or all of the obligations under clauses 45, 45A and 46 of Schedule 4 to the Act that are applicable to the access provider;
 (d) specify any other terms and conditions on which the access seeker is given access;
 (e) require a party to the arbitration of the dispute to extend or enhance the capability of a broadcasting transmission tower, designated associated facility or site;
 (f) specify the extent to which the determination varies an earlier determination made under this section.

Limits on power
 (4) The determination must not require the access provider to give access if the requirement is already imposed by Part 5 of Schedule 4 to the Act or any other law of the Commonwealth.
 (5) If the arbitration relates to a designated associated facility—the determination must not:
 (a) be inconsistent with an exemption mentioned in section 6; or
 (b) result in the access seeker becoming the owner (or one of the owners) of any part of a facility without the consent of the owner of the facility; or
 (c) require a party to the arbitration of the dispute (other than the access seeker) to bear some or all of the costs of:
 (i) extending or enhancing the capability of a facility; or
 (ii) maintaining extensions to or enhancements of the capability of a facility.

Informing parties
 (6) Before making the determination, the ACCC must give a draft of the determination to each party to the arbitration of the dispute.
 (7) When the ACCC makes the determination, it must:
 (a) give a copy of the determination to each party to the arbitration of the dispute; and
 (b) include the reasons for the determination.

Withdrawal of notification or termination of arbitration
 (8) To avoid doubt, the ACCC is not required to make a written determination of the terms and conditions of access if:
 (a) notification of the dispute is withdrawn under section 11; or
 (b) the ACCC terminates the arbitration of the dispute under section 12.