Telecommunications Act 1997

An eligible company must, if requested to do so by a carrier, give the carrier access to a telecommunications transmission tower owned or operated by the eligible company.

See also subsection (11) (when carrier is entitled to make a request).

See also clause 33 of Schedule 1.

Subsection (1) is a civil penalty provision.

Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

The eligible company is not required to comply with subsection (1) unless:

the access is provided for the sole purpose of enabling the carrier to install a facility used, or for use, in connection with the supply of a carriage service by means of radiocommunications; and

the carrier gives the eligible company reasonable notice that the carrier requires the access.

The eligible company is not required to comply with subsection (1) in relation to a particular telecommunications transmission tower if there is in force a written certificate issued by the ACCC stating that, in the ACCC’s opinion, compliance with subsection (1) in relation to that tower is not technically feasible.

In determining whether compliance with subsection (1) in relation to a tower is technically feasible, the ACCC must have regard to:

whether compliance is likely to result in significant difficulties of a technical or engineering nature; and

whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and

if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):

changing the configuration or operating parameters of a facility situated on the tower; and

making alterations to the tower; and

such other matters (if any) as the ACCC considers relevant.

Before issuing a certificate under subsection (4), the ACCC may consult the ACMA.

If the ACCC receives a request to make a decision about the issue of a certificate under subsection (4), the ACCC must use its best endeavours to make that decision within 10 business days after the request was made.

Subsection (1) does not impose an obligation to the extent (if any) to which the imposition of the obligation would have any of the following effects:

depriving any person of a right under a contract that was in force at the time the request was made;

preventing a designated Telstra successor company from complying with an undertaking in force under section 577A;

preventing Telstra from complying with an undertaking in force under section 577C or 577E;

if a final migration plan is in force—requiring a designated Telstra successor company to engage in conduct in connection with matters covered by the final migration plan.

If, at the time the request was made:

one or more provisions (the contingent provisions) of a contract have not come into force because:

the contingent provisions are subject to a condition precedent; and

the condition precedent has not been satisfied; and

there is a possibility that the condition precedent could become satisfied; and

assuming that the condition precedent had been satisfied:

the contingent provisions would come into force; and

the person would have a right under the contingent provisions;

the contract was in force; and

the person had the right under the contract.

For the purposes of subsection (1), if:

there is an agreement in force between Telstra or a designated Telstra successor company and an NBN corporation; and

the agreement relates to the NBN corporation’s access to a telecommunications transmission tower owned or operated by Telstra or the designated Telstra successor company; and

apart from this section, the agreement would result in the NBN corporation being the operator of the telecommunications transmission tower;

A carrier is not entitled to make a request under subsection (1) of this section before the end of the 60‑day period beginning on the day after the day specified in the instrument made under subsection 581ZH(3).