Authorised conduct—subsection 51(1)
151DA Authorised conduct—subsection 51(1)
Objects
The objects of this section are:
to promote the national interest in structural reform of the telecommunications industry; and
to promote uniform national pricing of eligible services supplied by NBN corporations by authorising, for the purposes of subsection 51(1), certain conduct engaged in by NBN corporations.
If conduct is authorised for the purposes of subsection 51(1), the conduct is disregarded in deciding whether a person has contravened Part IV.
See also subsection 151AJ(10).
Authorised conduct—points of interconnection
If:
an NBN corporation is a carrier or carriage service provider; and
the NBN corporation:
owns or controls one or more facilities; or
is a nominated carrier in relation to one or more facilities; and
the NBN corporation refuses to permit interconnection of those facilities at a particular location with one or more facilities of:
a service provider; or
a utility; and
the location is not a listed point of interconnection; and
the refusal is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities;
the refusal is authorised for the purposes of subsection 51(1).
For listed point of interconnection, see section 151DB.
Authorised conduct—bundling of designated access services
If:
an NBN corporation is a carrier or carriage service provider; and
the NBN corporation:
refuses to supply; or
refuses to offer to supply;
a designated access service to a service provider or utility unless the service provider or utility acquires, or agrees to acquire, one or more other designated access services (other than voice telephony facilitation services) from the NBN corporation; and
the refusal is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities;
the refusal is authorised for the purposes of subsection 51(1).
Authorised conduct—uniform national pricing
If an NBN corporation engages in conduct that is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities, that conduct is authorised for the purposes of subsection 51(1).
Uniform national pricing
For the purposes of this section, uniform national pricing of an eligible service supplied, or offered to be supplied, by an NBN corporation to service providers and utilities is achieved, if, and only if, the price‑related terms and conditions on which the NBN corporation supplies, or offers to supply, the eligible service to service providers and utilities are the same throughout Australia.
For the purposes of this section, in determining whether there is uniform national pricing of an eligible service supplied, or offered to be supplied, by an NBN corporation, disregard any discrimination by the NBN corporation against another person on the grounds that the NBN corporation has reasonable grounds to believe that the other person would fail, to a material extent, to comply with the terms and conditions on which the NBN corporation supplies, or on which the NBN corporation is reasonably likely to supply, the eligible service.
Examples of grounds for believing as mentioned in subsection (6) include:
evidence that the other person is not creditworthy; and
repeated failures by the other person to comply with the terms and conditions on which the same or a similar eligible service has been supplied (whether or not by the NBN corporation).
For the purposes of this section, in determining whether eligible services are characterised as:
the same eligible service; or
different eligible services;
it is immaterial whether the services are supplied, or offered to be supplied, using:
the same facilities or kinds of facilities; or
different facilities or kinds of facilities.
For example, the same eligible service could be supplied, or offered to be supplied, using:
an optical fibre line; or
terrestrial radiocommunications equipment; or
a satellite.
Definitions
In this section:
access virtual circuit service means an eligible service that is known as:
an access virtual circuit service; or
the access virtual circuit component of a fibre access service.
connectivity virtual circuit service means an eligible service that is known as:
a connectivity virtual circuit service; or
the connectivity virtual circuit component of a fibre access service.
designated access service means:
an access virtual circuit service; or
a connectivity virtual circuit service; or
a network‑network interface service; or
a user network interface service; or
a voice telephony facilitation service.
eligible service has the same meaning as in section 152AL.
listed point of interconnection has the meaning given by section 151DB.
network‑network interface service means an eligible service that is known as:
a network‑network interface service; or
the network‑network interface component of a fibre access service.
nominated carrier has the same meaning as in the Telecommunications Act 1997.
point of interconnection means a location for the interconnection of facilities.
price‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price.
service provider has the same meaning as in the Telecommunications Act 1997.
special access undertaking has the same meaning as in Part XIC.
telecommunications industry has the same meaning as in the Telecommunications Act 1997.
uniform national pricing has the meaning given by subsections (5) and (6).
use, in relation to a facility, means use:
in isolation; or
in conjunction with one or more other things.
user network interface service means an eligible service that is known as:
a user network interface service; or
the user network interface service component of a fibre access service.
utility means:
Airservices Australia; or
a State or Territory transport authority; or
a rail corporation (within the meaning of the National Broadband Network Companies Act 2011); or
an electricity supply body (within the meaning of that Act); or
a gas supply body (within the meaning of that Act); or
a water supply body (within the meaning of that Act); or
a sewerage services body (within the meaning of that Act); or
a storm water drainage services body (within the meaning of that Act); or
a State or Territory road authority (within the meaning of that Act).
voice telephony facilitation service means a service that facilitates the supply of a carriage service that is a carriage service for the purpose of voice telephony.
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