AUSTRALIAN COMPETITION TRIBUNAL

 

Application by AAPT Limited [2009] ACompT 5


ADMINISTRATIVE LAW – standing – meaning of a “person whose interests are affected”

 

TRADE PRACTICES – telecommunications access regime – application for review – declared service – public switched telephone network originating access service – application for exemption from standard access obligations – whether exemption orders will promote the “long-term interests of end-users” – conditions and limitations imposed on exemption orders 


Telecommunications Act 1997 (Cth), Pt 17

Trade Practices Act 1974 (Cth) ss 152AB, 152AT, 152ATA, 152AR, 152AV, 152AW(4)

 

Allan v Transurban City Link Limited (2001) 208 CLR 167

Alphapharm Pty Limited v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250

Application by Chime Communications Pty Ltd (No 2) [2009] ACompT 2

Duke Eastern Gas Pipeline Pty Ltd, Re [2001] ACompT 2

McHattan and Collector of Customs, Re (1977) 18 ALR 154

Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc (2006) 94 SASR 357

Queensland Co-Operative Milling Association Ltd, Re (1976) 8 ALR 481

Sydney International Airport, Re [2000] ACompT 1

Telstra Corporation Limited v Australian Competition Tribunal [2009] FCAFC 23


 

 

RE:     APPLICATION UNDER SECTION 152AV OF THE TRADE PRACTICES ACT 1974 FOR A REVIEW OF EXEMPTION ORDER DECISIONS (INDIVIDUAL EXEMPTION ORDERS 5 AND 6 OF 2008) MADE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION UNDER SECTION 152AT(3)(a) OF THAT ACT IN RESPECT OF THE SUPPLY BY TELSTRA CORPORATION LIMITED OF THE PSTN ORIGINATING ACCESS SERVICE

 

 

BY:      AAPT LIMITED, AGILE PTY LTD, CHIME COMMUNICATIONS PTY LTD, MACQUARIE TELECOM PTY LIMITED, POWERTEL LIMITED AND PRIMUS TELECOMMUNICATIONS PTY LIMITED

 

 

File No 6 of 2008

 

JUSTICE FINKELSTEIN (PRESIDENT)

R DAVEY

PROFESSOR D ROUND

24 AUGUST 2009

MELBOURNE


IN THE AUSTRALIAN COMPETITION TRIBUNAL

 

 

File No 6 of 2008

 

RE:      APPLICATION UNDER SECTION 152AV OF THE TRADE PRACTICES ACT 1974 FOR A REVIEW OF EXEMPTION ORDER DECISIONS (INDIVIDUAL EXEMPTION ORDERS 5 AND 6 OF 2008) MADE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION UNDER SECTION 152AT(3)(a) OF THAT ACT IN RESPECT OF THE SUPPLY BY TELSTRA CORPORATION LIMITED OF THE PSTN ORIGINATING ACCESS SERVICE

 

BY:      AAPT LIMITED, AGILE PTY LTD, CHIME COMMUNICATIONS PTY LTD, MACQUARIE TELECOM PTY LIMITED, POWERTEL LIMITED AND PRIMUS TELECOMMUNICATIONS PTY LIMITED

Applicants


 

TRIBUNAL:

JUSTICE FINKELSTEIN (president)

R davey

professor d round

 

DATE:

24 august 2009

WHERE MADE:

MELBOURNE

 

REASONS FOR DETERMINATION

1 Introduction

1.1 The applications

1                          These reviews deal with two applications by Telstra Corporation Limited under s 152AT of the Trade Practices Act 1974 (Cth) for exemption from the standard access obligations imposed by s 152AR in respect of its supply of part of the public switched telephone network originating access service (PSTN OA), a service that was deemed to be declared for the purposes of Pt XIC of the Trade Practices Act on 30 June 1997.  Exemption is not sought in so far as it concerns the provision of special services numbers (eg 13/1300 and 1800 numbers). 

2                          One application sought exemption for 387 metropolitan exchange service areas (ESAs), but now seeks exemption in respect of 380 metropolitan ESAs (Nominated Metro ESAs) (metropolitan application).  These are the same ESAs the subject of Telstra’s exemption applications in relation to two other declared services, the wholesale line retail (WLR) service and the local carriage service (LCS) (WLR/LCS applications):  see Application by Chime Communications Pty Ltd (No 2) [2009] ACompT 2.  The ESAs are located in the metropolitan areas of Australian capital cities.  The other application concerns 17 ESAs that are located in the central business districts of Brisbane, Sydney, Melbourne, Adelaide and Perth (CBD ESAs) (CBD application).  Together, the CBD ESAs and the Nominated Metro ESAs are referred to as the Nominated ESAs. 

3                          The Australian Competition and Consumer Commission (ACCC) granted the exemptions, subject to certain conditions, in 248 of the Nominated Metro ESAs and all of the CBD ESAs.  AAPT Limited, Agile Pty Ltd, Chime Communications Pty Ltd, Macquarie Telecom Pty Limited, PowerTel Limited and Primus Telecommunications Pty Limited applied to the Tribunal for review of those decisions.  Agile subsequently withdrew its application and Macquarie’s standing is challenged.  Optus Networks Pty Ltd and the ACCC were granted leave to participate in the proceeding. 

1.2 The Tribunal’s approach

4                          The Tribunal is only able to grant the exemptions if it is satisfied that to do so will promote the long-term interests of end-users of the service in issue:  s 152AB.  In determining whether an exemption will promote the long-term interests of end-users the Tribunal is required to have regard to the extent to which the exemption is likely to result in the achievement of the three objectives set out in s 152AB(2)(c), (d) and (e), as amplified by s 152AB(3) to (8).  In brief those objectives are: (a) the promotion of competition; (b) the achievement of any-to-any connectivity; and (c) encouraging the efficient use of, and investment in, infrastructure. 

5                          What is meant by these objectives and how the Tribunal is to go about the task of deciding whether it is satisfied they are met (usually by the application of a “future with” and “future without” analysis) is discussed in detail in Chime.  Nothing would be served by repeating that analysis in detail here.  On the other hand, to explain how the Tribunal has reached its decision on the instant applications, a little repetition is necessary.

6                          It is common ground that to determine whether an exemption will promote competition (the first objective) it is usually appropriate to conduct that investigation by reference to competition in a particular market.  The word “competition” is best understood, at least when dealing with issues mandated by the Trade Practices Act, as a process that takes place in a “market”.  And, by “market” we mean, to adopt the familiar passage from Re Queensland Co-Operative Milling Association Ltd (1976) 8 ALR 481, 517, “the area of close competition between firms or, putting it a little differently, the field of rivalry between them”. 

7                          While the notion of a market serves as an appropriate tool of analysis, or as the field in which to evaluate issues that require consideration, it is not always necessary to define with precision (assuming that is even possible) the boundaries (by function, product or area) of the market.  The Tribunal is prepared, as it did in the WLR/LCS applications, to put to one side the geographic boundaries of the market(s) and concentrate attention on rivalry within an ESA.  Still, as the ACCC has observed, it is nonetheless necessary to form some view, at least in a general way, of the markets in question.

8                                                                                     The second objective concerns any-to-any connectivity.  This objective is achieved if end-users of a particular service are able to communicate with each other end-user who is supplied with the same or similar service, whether or not the end-users are connected to the same network:  s 152AB(8).  The third objective that the Tribunal must consider is whether granting the exemption is likely to result in the achievement of encouraging the economically efficient use of, and economically efficient investment in, infrastructure.  Efficiency is the product of competition and if a thing is, or is likely, to result in the achievement of the objective of promoting competition that thing will, or is likely to, encourage relevant efficiencies. 

2 Background to the applications

2.1 The declared services

9                                                                                     There are five relevant declared services which Telstra is required to supply over its fixed network.  The services are: (a) the unconditioned local loop service (ULLS); (b) the line sharing service (LSS); (c) the PSTN OA; (d) the WLR service; and (e) the LCS.  A brief explanation of these services is necessary to properly understand the instant applications. 

10                        The WLR service involves Telstra supplying an access seeker with a basic line rental service that allows an end-user to connect to Telstra’s customer access network (CAN).  The end-user is provided with a telephone number and the ability to make and receive standard public switched telephone network (PSTN) local, national long-distance (LD), international direct dialling (IDD) and fixed-to-mobile (FTM) voice calls.  The WLR service is used by an access seeker without the need to invest in its own infrastructure. 

11                        The LCS may be used by an access seeker to supply a local call service to an end-user with Telstra being responsible for the carriage of the call between the calling party and the called party.  As with the WLR service, the LCS is used by an access seeker without the need to invest in its own infrastructure.

12                                                                                   The ULLS involves Telstra providing an access seeker with access to an unconditioned local loop on Telstra’s CAN between an end-user’s premises and a Telstra exchange.  An access seeker may use the service in conjunction with its own facilities (such as a digital subscriber line access multiplexer (DSLAM) or multi-service access node (MSAN)) to provide a retail voice and broadband service to an end-user or to provide wholesale services to another service provider. 

13                                                                                   An access seeker can also supply a broadband service to end-users using the LSS.  The LSS typically involves Telstra providing an access seeker with access to the non-voice frequency of an unconditioned wire on Telstra’s CAN between an end-user’s premises and a Telstra exchange.  An access seeker may use the LSS service in conjunction with its own facilities (such as a DSLAM or a MSAN) to supply high-speed internet access while Telstra retails or wholesales the underlying voice service.

14                        The present applications concern the PSTN OA, a service for the carriage of a telephone call from an end-user calling party connected to Telstra’s PSTN to a point of interconnection (POI) with an access seeker’s network.  The POI is usually located at a trunk exchange.  The service is a wholesale input used by an access seeker to provide LD, IDD and FTM calls to its customers.  

15                        To use the PSTN OA an access seeker must acquire other inputs (such as switching) and services (such as transmission and terminating access).  The access seeker may do this by either making a modest investment in its own switching and transmission infrastructure or by acquiring switching and transmission services on a wholesale basis from another service provider. 

16                        Access seekers using PSTN OA as a wholesale input to supply a fixed voice service will usually fall into one of three categories.  The first category is an over-ride operator.  This involves an end-user whose line is connected to a provider using a four digit code on a call-by-call basis to “over-ride” the service that would otherwise be provided.  The second category is a pure pre-selection provider.  Here the end-user’s line is connected to one provider and is set to automatically direct all LD, IDD and FTM voice calls to the pure pre-selection provider, thus obviating the need for the use of a call-by-call over-ride code.  The final category is a voice reseller.  A voice reseller uses the PSTN OA (together with the LCS and WLR service) to provide an end-user with a bundled fixed voice service package of local, LD, IDD and FTM calls. 

2.2 The relevant markets

17                        There is broad agreement on what the relevant markets are.  They are:  (a) wholesale markets for the supply of fixed voice services to access seekers (including basic access, local calls, LD, IDD and FTM calls) via resale (LCS/WLR, PSTN OA and PSTN terminating access service (PSTN TA)) and access-based supply (via the use of a DSLAM or MSAN in conjunction with ULLS); (b) wholesale markets for the supply of bundled fixed voice and broadband services to access seekers via resale and access-based supply (via the use of a DSLAM or MSAN in conjunction with the ULLS or LSS in combination with PSTN OA or LCS/WLR); (c) retail markets for the supply of a bundle of fixed voice services (including basic access, local calls, LD, IDD and FTM calls) excluding carrier grade and application layer voice over the internet protocol (VoIP) and mobile services; and (d) retail markets for the supply of bundled fixed voice and broadband services over copper, hybrid fibre-coaxial cable (HFC) or, possibly, wireless technologies.

18                        Telstra would include mobile and VoIP within the range of products which may be substituted, one for the other.  With respect to VoIP, neither the ACCC nor the other parties agree, largely for the reason that carrier grade application VoIP is often of lower quality than PSTN voice services, is not available in the event of a power outage at the end-user’s premises, requires the end-user to acquire a VoIP specific phone and requires the end-user to acquire a broadband service.  The resolution of this dispute will not affect the outcome of these applications and can be put aside for another day.

2.3 The bundled supply of voice and broadband services

19                        In recent years there has been significant growth in the supply of both voice and broadband services using DSLAM technology via the ULLS.  (When we refer to DSLAM technology we include MSANs and other equipment capable of providing voice or data services via the ULLS or the LSS.)  This growth was the catalyst for the WLR/LCS applications and the instant applications. 

20                        The extent of that growth in the Nominated ESAs is as follows.  ULLS and LSS acquirers increased their share of services in operation (SIOs) within the Nominated Metro ESAs from 11.7 per cent to 17.2 per cent between September 2007 and June 2008.  ULLS acquirers increased their share from 5.5 per cent to 9.4 per cent of SIOs within the Nominated Metro ESAs during the same period.  In addition, significant churn between Telstra’s PSTN and ULLS-based networks occurred.  In the 14 months to February 2008, Telstra submitted that 194,000 Telstra wholesale customers churned to ULLS-based supply, and 73,000 Telstra retail customers churned to ULLS-based supply. 

21                        There is at least one DSLAM installed in each of the Nominated ESAs.  The following table shows the growth in the number of ESAs in which individual access seekers have installed DSLAM infrastructure within the Nominated ESAs.

           

            Table 1

Access Seeker

Sep-07

Dec-07

Mar-08

Jun-08

XYZED (Optus)

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Chime (iiNet)

279

280

284

289

TPG

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Primus

183

203

215

227

AAPT/PowerTel

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

NEC

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Agile (Internode)

81

79

83

94

RequestDSL

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Adam

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Amcom

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Macquarie

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Eftel

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Soul

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Network Technologies

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

TransACT

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Netspace

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

*The notation "[c-i-c]", a common abbreviation for the phrase "commercial in confidence", indicates that the information is confidential. Table 1 in its completed form is held on the Tribunal’s file and may only be inspected with leave.

22                        The information in Table 1 shows that as at June 2008: (a) four access seekers are present in more than 227 of the Nominated ESAs; (b) eight access seekers have expanded their DSLAM deployment within the Nominated ESAs between September 2007 and June 2008; (c) [c-i-c] recently deployed DSLAMs in [c-i-c] ESAs; and (d) no access seeker reduced its DSLAM deployment within the Nominated ESAs between September 2007 and June 2008.  (A complete version of this paragraph, which contains confidential information, is held on the Tribunal’s file and may only be inspected with leave).

23                        The average number of DSLAM operators (including Telstra) present in the Nominated ESAs has also steadily increased between September 2007 and June 2008, as illustrated in Table 2:

            Table 2

Number of DSLAM Operators (including Telstra) present in ESA

Sep-07

Dec-07

Mar-08

Jun-08

0 DLSAM operators

2

1

0

0

1 DLSAM operator

73

60

50

46

2 DLSAM operators

77

74

66

64

3 DLSAM operators

66

67

73

62

4 - 5 DLSAM operators

101

111

120

125

6 or more DLSAM operators

79

84

88

100

Average number of DSLAM operators in each Nominated ESA

3.7

3.8

4.0

4.2

 

24                        Table 3 shows the growth in total ULLS and LSS SIOs for each access seeker that has DSLAMs installed within the Nominated ESAs:

            Table 3

Access Seeker

Sep-07

Dec-07

Mar-08

Jun-08

XYZED (Optus)

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Chime (iiNet)

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

TPG

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Primus

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Adam

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Agile (Internode) 

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Amcom

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

RequestDSL

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

TransACT

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

AAPT/PowerTel

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Network Technologies

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

NEC

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Soul

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Macquarie

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Eftel

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Netspace

[c-i-c]

[c-i-c]

[c-i-c]

[c-i-c]

Total

632,167

735,801

822,901

914,807

     (A complete version of Table 3, which contains confidential information, is held on the Tribunal’s file and may only be inspected with leave).

25                        These numbers can be expressed as a proportion of total PSTN SIOs within the Nominated ESAs, as depicted in Table 4:

            Table 4

Number of DSLAM operators in the ESA (Excluding Telstra)

Sep-07

Dec-07

Mar-08

Jun-08

0 DSLAM operators

n/a

n/a

n/a

n/a

1 DSLAM operator

2.5%

3.7%

4.1%

5.2%

2 DSLAM operators

2.8%

3.6%

5.0%

5.8%

3 DSLAM operators

4.3%

5.4%

6.6%

8.1%

4 DSLAM operators

6.4%

8.0%

9.1%

10.6%

5 DSLAM operators

6.5%

8.3%

9.1%

10.6%

6 DSLAM operators

7.4%

8.8%

10.0%

10.2%

7 DSLAM operators

7.4%

8.4%

8.2%

9.9%

8 DSLAM operators

8.6%

9.9%

11.0%

11.9%

9 DSLAM operators

10.0%

11.2%

12.2%

13.1%

10 DSLAM operators

11.2%

13.6%

14.7%

14.2%

Average share in  397 Nominated ESAs

5.5%

6.9%

8.1%

9.4%

 

26                        Finally, it is instructive to consider the change in ratio of ULLS SIOs to Telstra-supplied WLR SIOs in the Nominated Metro ESAs, as may be seen in Table 5.

            Table 5

Number of DSLAM Operators present in ESA

Sep-07

Dec-07

Mar-08

0 DLSAM operators

n/a

n/a

n/a

1 DLSAM operator

13.1%

21.1%

29.2%

2 DLSAM operators

13.7%

18.4%

30.9%

3 DLSAM operators

20.9%

27.4%

36.9%

4 - 5 DLSAM operators

31.8%

43.1%

51.7%

6 or more DLSAM operators

38.0%

47.8%

55.9%

Average share in 380 Metro ESA

26.1%

35.5%

46.0%

           

27                        Between September 2007 and June 2008 there has been significant investment in DSLAMs in the nominated ESAs. The number of ESAs in which there are 4 or more DSLAM operators has risen from 180 to 225.  While the Tribunal has little information as to the capacity of installed DSLAMs, the growth in total ULLS and LSS SIOs enjoyed by the six largest providers has been strong, and for some operators has been well over 50 per cent.  In the Nominated ESAs in which three or more operators (excluding Telstra) have existed over the period, the average proportion of these total ULLS and LSS SIOs to total PSTN SIOs has grown from 7.7 per cent to 11.1 per cent, an increase of some 50 per cent.  Clearly,ULLS-based operators are growing strongly and are attracting customers away from the PSTN.

3 The WLR/LCS applications

28                        Telstra’s metropolitan application is put substantially on the same basis as the WLR/LCS applications.  It is therefore necessary to say something about the WLR/LCS applications.  As already noted, the catalyst for the WLR/LCS applications was the growth in the supply of voice and broadband services through ULLS and the corresponding, or substantially corresponding, decrease in the use of the WLR service and LCS, for the supply of fixed voice services.  Telstra submitted thatit was in the long-term interests of end-users to grant the exemptions in each ESA where one entrant (ie a competitor of Telstra) has installed at least one DSLAM.  Put briefly, the argument in support of the exemptions (which we adapt from the reasons in Chime) went along the following lines.

29                        The LCS, WLR service and ULLS are each a wholesale service.  An access seeker who has acquired the LCS or WLR service is able to supply a phone line and local calls.  If the access seeker has also purchased PSTN OA and PSTN TA the access seeker is able to supply a bundle of services including the phone line, local calls, LD, FTM and IDD calls.  

30                        An access seeker who has acquired ULLS and has installed a DSLAM is able to supply both fixed voice services (that are the equivalent to the voice service available through the use of the LCS and WLR service) and broadband services. 

31                        Accordingly, in the downstream (retail) markets for the provision of fixed voice services (usually the bundle of local calls, LD, IDD and FTM calls) or fixed voice services and broadband data, ULLS is a substitute for the WLR service and the LCS.  Dr Patterson, Telstra’s principal economic expert, says that ULLS is a “commercially viable substitute” for the LCS and WLR service because: (a) with the use of appropriate infrastructure it permits the supply of fixed voice services; and (b) there are no, or no significant, barriers to the entry of ULLS-based fixed voice services.  According to Dr Patterson, proof of the substitutability of ULLS (namely that it is a “commercially viable” substitute) is established by the fact that an access seeker has installed a DSLAM in an exchange within the ESA.  Dr Patterson put it this way.  In those locations where a DSLAM has been installed, entry has not been blocked by entry barriers.  Those ESAs are, therefore, effectively contestable.  Hence the regulation of the LCS and WLR service is no longer required.

32                        The Tribunal handed down its decision on the applications on 27 May 2009.  Although the Tribunal rejected Dr Patterson’s central thesis, the exemptions were granted, subject to certain limitations and conditions.  The Tribunal made the orders because it was satisfied that it was in the long-term interest of the end-users of those services to do so.  The Tribunal was only able to reach that state of satisfaction because of the limitations and conditions that were imposed. 

33                        The key limitations and conditions can be loosely summarised as follows.  The exemption will only have effect in an ESA with three or more ULLS-based competitors who together hold an aggregate market share equal to or greater than 30 per cent and have capacity to convert 40 per cent of their WLR SIOs to the ULLS.  The exemptions do not have effect within an ESA: (a) that is capped (capping refers to an ESA in which it is not possible to deploy additional DSLAM equipment, thereby preventing access seekers from either entering the market or capturing market share); (b) that is queued (queuing refers to the substantial delays access seekers often face before they are able to install their equipment in Telstra’s exchange buildings); and (c) from the date on which Telstra ceases to supply the ULLS in that ESA.  There is also a condition that addresses the migration to ULLS-based services of end-users supplied with a bundled fixed voice and broadband service by an access seeker using a combination of the LSS, LCS and WLR service.  The exemption does not have effect in relation to the supply of the LCS and WLR service to an access seeker in respect of end-users supplied with a bundled fixed voice and broadband service until a relevant migration process is established.  Were it not for these conditions and limitations, the orders would not have been made. 

4 The Nominated Metro ESAs

4.1 Telstra’s submission

34                        The basis of Telstra’s metropolitan application may be encapsulated in the following proposition:  The availability of ULLS and its use with DSLAM equipment is an effective and superior substitute to the WLR service, PSTN OA and LCS for the provision of fixed voice services.  Accordingly, so the argument goes, since the Tribunal accepted in the WLR/LCSapplications that granting the exemption in relation to the WLR service and LCS would create an environment that will encourage the promotion of competition in the market for fixed voice services it necessarily follows that the metropolitan application should succeed, at least if orders are made subject to the same conditions and limitations.  (We acknowledge that in both the WLR/LCS applications and in these current applications Telstra contends that no conditions or limitations should be imposed.)

35                        Telstra also submits that the metropolitan application is complementary to Telstra’s applications for exemptions from the LCS and WLR service for two reasons.  First, the metropolitan application is in respect of the same ESAs.  Second, PSTN OA is used in conjunction with LCS and WLR (together with other inputs and services) for the provision of fixed voice services. 

 

4.2 Promotion of competition

36                        When it comes to a consideration of the metropolitan application there is a good deal to be said for the view that the reasons which led the Tribunal to conclude that granting the exemptions in the WLR/LCS applications would be in the long-term interests of end-users and, in particular, would promote competition, would apply equally to the metropolitan application.  After all, PSTN OA is predominately acquired as a bundled service in conjunction with the LCS and WLR service.  Moreover, to reach a different result might, as Telstra asserts, distort investment in ULLS infrastructure and the use of ULLS.  Similarly, the ACCC contends that inconsistent decisions would frustrate the achievement of the benefits intended by the Tribunal to be achieved in respect of the exemptions granted on the WLR/LCS applications. 

37                        Notwithstanding the attractiveness of such an approach, both the applicants and Optus deny that making orders on the metropolitan application would promote competition in the relevant markets.  As things have turned out, it is necessary to consider only certain of the arguments put in support of that proposition.  The reason why not all the arguments need be considered is that most are the same as those considered, and ruled on, by the Tribunal in the WLR/LCS applications.  The Tribunal sees no reason for those issues to be gone over again.  We do not think any party is of a different view.

38                        The first submission we will consider here is what may be described as the “no utility” argument.  It is contended, especially by Optus, that once the WLR/LCS exemptions were finalised the incentive to move to ULLS based supply exists and no additional benefit will result from an exemption of PSTN OA. 

39                        In the WLR/LCS applications, the Tribunal proceeded on the basis (speaking very generally) that when an entrant who has entered the retail market for the supply of voice and broadband services via the ULLS has built a reasonable market share and established something of a reputation among end-users, that entrant is likely to have an incentive to continue to invest in ULLS infrastructure.  The Tribunal acknowledges that this approach, influenced by the ladder of investment idea developed by Professor Cave, has no empirical proof to support it, and for this reason has its detractors.  Nonetheless, Professor Cave’s thesis has sufficient supporters, included among them the ACCC and several European regulators, to encourage the Tribunal to go along with the approach. 

40                        In this connection, while the Tribunal recognises the importance of broadband in the so-called “information society”, it wishes to make it quite clear that it will not favour one technology over another.  That is, the Tribunal will not seek to impose, or discriminate in favour of, any particular type of technology.  Thus, if none of the s 152AB objectives are satisfied, the Tribunal will not make an order even if it accepts, as Telstra continually asserts, that ULLS is superior to the WLR service or LCS. 

41                        It is also possible, at least in theory, that if Optus is correct in its no utility argument a service (eg the PSTN OA) may continue to be regulated whether or not an economic rationale for access regulation remains.  But, putting theory aside, we are not persuaded by the no utility argument.  In substance, on this aspect, we accept Telstra’s position as explained by Dr Paterson.  He said that unnecessary regulated access may have the following anti-competitive consequences.  First, there is the risk that access prices might truncate the rewards from a successful investment but might not reduce the losses from unsuccessful ventures.  This reduces the extent to which the regulated firm might undertake efficient, but risky, investments.  Second, access regulation can distort an access seeker’s investment to build upstream infrastructure if inputs further down the supply chain are priced below the competitive level.  Third, in efficient markets arbitrage opportunities disappear.  Conversely, inefficient arbitrage opportunities can be perpetuated by access regimes that offer substitute levels of access.   

42                        It is for these reasons that the Tribunal has in the past said that regulated access is only justifiable where a particular service is a bottleneck, in the sense that access to it is essential to compete in upstream or (more usually) downstream markets.  Where there are readily available alternatives that enable upstream or downstream competition, regulated access is not necessary or justifiable.  In other words, regulation is usually the second best outcome:  Re Sydney International Airport [2000] ACompT 1 at [112] – [115];  Re Duke Eastern Gas Pipeline Pty Ltd [2001] ACompT 2 at [44] (“[R]egulatory controls designed to mimic the operation of a free marketplace are a ‘second best’ to the outcomes produced by actual competition”).

43                        The second argument against exemption is the likely loss of the downstream provision of pre-selection services (LD, IDD and FTM) on a stand-alone basis.  The declaration of the PSTN OA has enabled those services to be unbundled.  As a result Optus contends there is a competitive market using the PSTN OA as an input for the provision of LD, IDD and FTM services.

44                        Assuming for the moment that there is a market for those stand-alone services, there is considerable debate about the size of that market.  Telstra’s position is as follows.  As at 30 June 2007 there were 7,769,276 retail SIOs supplied by Telstra on its PSTN.  Of those SIOs, 2,141,809 were pre-selected to a carrier other than Telstra.  Approximately 15.29 per cent of those SIOs were pre-selected retail SIOs.  The proportion of PSTN OA traffic generated by service providers who do not also acquire the WLR service/LCS from Telstra is approximately 0.051 per cent of the total PSTN OA traffic (although it must be remembered that this figure does not take into account service providers who not only offer customers pre-selection and override services, but who also have in their service offering fixed voice bundles).  Within the broader retail market, approximately 3 per cent of customers use Telstra for their local services and pre-select an alternative carrier for their LD and FTM services.  Telstra also submits that the impact of call override operators is minimal.  Override calls using PSTN OA now account for less than 5 per cent of all LD calls by volume.  Further, the PSTN OA override minutes declined significantly in the 404 ESAs the subject of the exemption applications before the ACCC.  The gist of Telstra’s submission is that the stand-alone market is of minimal significance. 

45                        Optus takes a different view.  It says that a competitive market  has developed, using PSTN OA as an input, for the provision of LD, IDD and FTMservices to end-users by pre-selection and override providers.  In support of this submission, Optus points to the fact that in March 2008 there were 83.1 million PSTN OA pre-select minutes in the Nominated Metro ESAs.  Further, on the most recent data in call collection areas(CCAs), in which the Nominated Metro ESAs are located, over 117 million pre-select and override minutes per month are supplied by Telstra.  Accordingly, Optus contends that the “very fact that such a large number of call minutes are still provided by way of pre-selection and override services, despite the recognised benefits of bundled services … suggests that there is a significant demand from end-users for unbundled LD, IDD and FTM services and that the stand-alone market allows the efficient use of existing infrastructure”. 

46                        The ACCC challenges this analysis.  It says that the 117 million minutes referred to by Optus relates to pre-select and override providers’ minutes per month in the CCAs in which the Nominated Metro ESAs and the CBD ESAs are located (ie it is not confined to the CCAs in which the Nominated Metro ESAs are located as purported by Optus).  Further, the ACCC contends that the figures advanced by Optus say nothing about the competitive significance of pre-select and override services in the absence of like data on total PSTN OA minutes. 

47                        The ACCC made the following, more general, submissions regarding the stand-alone market in support of its contention that the material available to the Tribunal evidences the diminishing use of pre-select and override services.  It points out that more than 98 per cent of Telstra’s retail residential customers purchase a full bundle of fixed services (including IDD, LD and FTM), indicating that competitors to Telstra currently supply unbundled IDD, LD and FTM services to less than 2 per cent of Telstra’s retail customers.  Further, the percentage of customers utilising fixed service bundles is projected to increase in the coming years.  The ACCC also noted that:  “Telstra has also provided historic data on declining pre-select and override providers’ minutes per month and extrapolated that data to show that, by December 2008, it will be supplying only 50 per cent of the pre-select PSTN OA minutes of use that were supplied as at January 2005 and 25 per cent of the override PSTN OA minutes of use that were supplied at January 2005.  The Applicants concede, presumably by reason of this data, that the use of PSTN OA for the unbundled supply of IDD, LD and FTM services is diminishing”. 

48                        In short, the ACCC says that the existence of a separate market for the supply of stand-alone services is denied by:  (a) the fact that the majority of the acquirers of PSTN OA purchase a bundle of LCS, PSTN OA and WLR services from Telstra (b) the steady decline in the use of PSTN OA by override operators and call pre-selection providers (ie carriers who only supply IDD, LD and FTM services); and (c) the steady decline in the percentage of end-users of unbundled IDD, LD and FTM services compared with basic access and local telephone services.  

49                        Dr Paterson is of the same opinion.  He relies on the following analysis.  First, he says that on the demand side customer preferences are heavily skewed toward taking the full bundle of voice services, not local and long distance by themselves.  Second, he says that on the supply side any significant price rise for stand-alone long distance services is likely to be met by a competitive response from ULLS-based suppliers offering the full bundle of voice services at prices that reflect the substantial economies of scope in the supply of those services.

50                        In the Tribunal’s opinion, even if at some stage in the past the PSTN OA constituted a stand-alone market, that is no longer likely to be the case.  Strongly increasing end-user preference for bundled IDD, LD, and FTM services, with no indication that this trend will be reversed, suggests that the PSTN OA cannot be assessed as having sufficient characteristics associated with a distinct market to justify it as constituting an analytically – or operationally – relevant market.

51                        Putting to one side the dispute about the existence of a separate market, it is contended by Optus that the risk from the deregulation of PSTN OA confronting the providers of pre-selection and override services is three-fold:  (a) Telstra will withdraw supply of PSTN OA; (b) Telstra will increase the price of PSTN OA to an unacceptable level; and (c) Telstra might discriminate between suppliers, denying access to some (in order to acquire the wholesale business sold in conjunction with the PSTN OA such as switching, transit and call termination services) and allowing access to only the smaller service providers.  

52                        Telstra’s main answer to the argument that the long term interests of end-users would be adversely affected by deregulation is, first of all, to attack the premise that deregulation will give Telstra the ability, or incentive, to foreclose supply or raise the price of PSTN OA to unacceptable levels.  In support of its position, Telstra refers to the independent statutory obligations in relation to pre-selection and call override (see Telecommunications (Provision of Pre-selection for Specified Carriage Services) Determination 1998 made pursuant to Telecommunications Act 1997 (Cth), Pt 17). 

53                        Telstra also relies on Dr Paterson’s main thesis, namely, that the actual and potential competition from ULLS-based suppliers of voice services will inevitably restrain Telstra from engaging in any anti-competitive conduct.  In its written submissions Telstra explains that it faces incentives to supply stand-alone long distance services “to the extent that … it is efficient”.  Failure to meet any market demand for such services would mean the loss of customers to competitors willing to do so.

54                        In large part this argument rests on Dr Paterson’s often-expressed view that the absence of barriers to entry to the supply of ULLS-based voice services shows that Telstra has no market power in the wholesale and retail markets for the supply of fixed voice services.  In Chime the Tribunal explained at some length why it did not accept Dr Paterson’s thesis.  At the risk of oversimplification, in the Tribunal’s view Dr Paterson’s analysis suffered from two main problems.  First, his discussion of barriers to entry was confined to structural barriers while basically ignoring dynamic or strategic barriers.  Second, he based his thinking on the so-called ‘contestable market’ theory, a theory in which the Tribunal has little confidence. 

55                        It was the Tribunal’s view in Chime, and it remains of that view, that Telstra has considerable power in the markets under investigation.  In part this view is based on the existence of barriers to entry that were overlooked or downplayed by Dr Paterson.  The barriers include (but are not confined to) the advantages of incumbency, customer inertia, switching costs, and exchange capping and queuing.   The Tribunal rejects the proposition that there currently exists sufficient competition in the Nominated Metro ESAs, in the real commercial sense of entrants exerting a long-run constraint on Telstra’s market power.   The absence of a sufficiently competitive market is the result of the absence of sufficiently well-established competitors holding a growing share of the market who are demonstrably able to constrain Telstra’s market power in the future.

56                        In Chime, via the imposition of limitations and conditions, the Tribunal was able to counter, at least to some extent, several of these barriers.  But, the advantage of incumbency, customer inertia and the like cannot easily be eliminated.  Nor can conditions imposed by the Tribunal create competition.  The Tribunal may, however, create narrow but not insignificant conditions that are likely to result in promoting competition. 

57                        In Chime the Tribunal was satisfied that with the limitations and conditions Telstra’s ability to withdraw, or raise the price of, the WLR service and LCS, might be somewhat constrained.  The same reasoning will hold true in the case of PSTN OA, at least where bundled services are concerned.  But the Tribunal is concerned about the position of the providers of stand-alone pre-selection or override services.  There are several reasons for this concern.  First, Telstra has stated quite candidly that it will continue to supply PSTN OA only if it is efficient to do so.  This is a clear signal that in the future supply may be withdrawn.  Second, as Optus says, there is no evidence to suggest that these service providers could viably migrate to ULLS-based services.  Foreclosing access to PSTN OA, according to Optus, would preclude the possibility of access seekers competing to provide services to end-users who wish to remain with Telstra for access services, but who seek a more competitive option for unbundled LD, IDD and FTM services.  In other words, foreclosing regulated access to PSTN OA would shut off one important source of competitive pressure on prices for LD, IDD and FTM services, with no corresponding benefit to end-users. 

58                        Assuming all this to be true, it is a matter of significance that stand-alone service providers are small in number (although how small is a matter of dispute), providing few services to few end-users.  The competitors are aptly described by the ACCC as “niche” operators.  It appears to the Tribunal that even if there were to be a withdrawal of PSTN OA after deregulation, the effect on end-users by the loss of stand-alone providers would be at worst marginal. 

4.3 Any-to-any connectivity and efficient investment

59                        It was common ground that the objective of any-to-any connectivity will not be affected by an exemption order.  It is an issue that requires no further consideration.

60                        Telstra asserts that the efficient investment objective will be achieved because the grant of the exemptions will promote competition.  This, so it is said, will create the incentive for further investment by access-seekers in DSLAM technology and it will also remove in part some of the onerous and inefficient consequences flowing from a regime of regulation.  Market forces will operate and access seekers will be able to make their own investment decisions. The Tribunal is of opinion that, as the exemption with conditions is likely to result in the achievement of the objective of promoting competition it will, or is likely to, encourage the efficiencies that flow from the unfettered operation of the competitive process.

4.4 Conclusion

61                        The exemption on the metropolitan application, subject to the same limitations and conditions imposed in the WLR/LCS applications, is likely to be in the long-term interests of end-users. 

5 The CBD application

5.1 Market conditions

62                        The CBD application does not overlap with the WLR/LCS applications.  For one thing, the declarations of the WLR service and LCS do not apply in the CBD.  For another, the market conditions in the CBD ESAs are quite different from those that exist in the metropolitan ESAs. 

63                        Within the CBD ESAs fixed voice services are supplied not only by ULLS, but also by six competing fibre networks.  A total of 2,473 building connections have been made by Telstra’s competitors in the CBD ESAs. 

64                        There are a total of 274,381 addressable SIOs (ie SIOs connected to a Telstra exchange by an uninterrupted wire via which an end-user might be provided with an ULLS-based service) within CBD ESAs.  The average number of SIOs per ESA is 16,166.  The smallest in terms of addressable SIOs is 3,905.  Table 6 provides an overview of facilities-based competition in the CBD ESAs.

Table 6

ESA

State

Fibre loop operators

DSLAM-based operators

Fixed wireless operators

Batman

VIC

14

6

12

Bulwer

WA

8

4

4

Charlotte

QLD

12

6

8

City South

NSW

11

6

10

Dalley

NSW

11

6

10

Edison

QLD

12

6

8

Exhibition

VIC

14

6

12

Flinders

SA

11

4

4

Haymarket

NSW

11

6

10

Kent

NSW

11

6

10

Lonsdale

VIC

14

6

12

Pier

WA

8

5

4

Pitt

NSW

11

6

10

Roma Street

QLD

12

4

8

Spring Hill

QLD

12

6

8

Waymouth

SA

11

5

4

Wellington

WA

8

5

4


65                        The existence of the fibre network-based competitors led the ACCC to observe in its 2002 decision to exempt the LCS that:  “The presence of such alternative infrastructure and services is believed to be sufficient to serve as substitutes to the Local Carriage Service and act as a constraint on the Local Carriage Service price that Telstra would be able to charge … Moreover the [ACCC] is of the view that the availability of the Local Carriage Service is preventing these alternative infrastructure and services from being used more extensively to originate calls than is the case at present.” 

66                        This conclusion is supported by the estimates of the cost of connecting fibre to a CBD building.  Payback analysis shows that an operator making such investments could recoup its investments in a very short time period.  If conduits are leased the payback period can be less than one year, but is typically less than 1.4 years.  A new “duct build scenario” is estimated to have a payback period of between 2.4 and four years, depending on the speed of the service. 

5.2 Promotion of competition

67                        In this state of affairs one might easily conclude that competition would be promoted if the exemptions were granted.  But there is a problem.  The problem concerns the supply of services to large businesses (defined as a business with at least 200 employees) and to government.  Optus says there are technical and commercial factors, and competitive drivers, which are unique to large business customers and government customers.  They include:  (a) the demand for services to be provided on a “whole of business” basis with preferences for single billing, multiple services and products included on a single invoice and a single point of contact for all telecommunications needs; (b) requirements for ubiquitous coverage of specialised and complex features and type of basic telephony services; and (c) high incumbent inertia with enduring impacts due to the high cost of changing providers.

68                        Accordingly, Optus contends that ULLS cannot be used exclusively to supply services to many existing large business and government customers.  The reasons include:  (a) business customers require supply to all of their multiple premises and an entire business account may be lost if even one such location is inaccessible (perhaps due to the presence of a pair gain system because such a system breaks the continuous copper loop which is a pre-requisite for the use of the ULLS); (b) problems with ULLS service reliability and fault rectification; and (c) certain complex features cannot be provided over Optus consumer grade infrastructure and the difficulties of migration to a new platform apply.  Specifically, Optus is unable to migrate customers off Telstra resale infrastructure to its own infrastructure.  Indeed, Optus contends that a lengthy and costly high-risk migration process is required in order to migrate large business and government customers to ULLS-based services.  Hence, the large business customers and government will defer migration to a new telecommunications platform for as long as possible because:  (a) migration is time consuming and costly and imposes a burden on the staff of end-users;  (b) a key business requirement for large businesses and government is to obtain an adequate return on the investment made in their existing telecommunications platforms;  and (c) the migration poses a high risk of disruption to the business of the customer:  continuity of services is paramount.

69                        In order to illustrate the problem, Optus referred to material concerning the migration of one of its corporate clients from a managed handsets platform to the Optus Evolve Program.  The client has an [c-i-c] site telephone network.  The migration involves the installation of new equipment at two main customer sites and the replacement of the client’s handsets at all [c-i-c] sites.  The entire migration process is expected to take around [c-i-c] months.  The cost will be upwards of $[c-i-c].  For the client, the cost of cancelling the network with the existing external equipment supplier is $[c-i-c] and the cost of transition within Optus is $[c-i-c].  The cost of the new equipment and 36 months maintenance is $[c-i-c].

70                        Telstra says this example is of little utility as it did not involve a simple switch from resale-based supply to ULLS-based supply.  Rather, it is a migration to an entirely new and substantial platform involving a new fibre build to a number of premises and the purchase of new advanced specialist business handset equipment.  According to Telstra, many of the expenses incurred by the client have nothing to do with migration to ULLS (for example, the ongoing maintenance costs).  Telstra submits that only “$[c-i-c] of the $[c-i-c] million involved the cost of transition to Optus.”  (A complete version of paragraphs 69 and 70, which contain confidential information, is held on the Tribunal’s file and may only be inspected with leave).

71                        This criticism is supported by the ACCC which says that: “It is not clear … that the example is in respect of DSLAM/MSAN deployment and therefore not clear that the example is relevant in the current context”.  We agree. 

72                        The Tribunal is of opinion that the widespread existence of competing supply options to serve large business and government end-users in the CBD ESAs means that exemption is not likely to result in any serious long-term damage either to a supplier’s ability to compete, or to the efficient working of the competitive process in areas where many rivals exist and where alternative supply options are available to meet the needs of government agencies and large firms.

5.3 Any-to-any connectivity and efficient investment

73                        The objective of any-to-any connectivity will not be affected by an exemption order and requires no further consideration.  Further, the Tribunal is of the opinion that, as the exemption is likely to result in the achievement of the objective of promoting competition it will, or is likely to, encourage the efficiencies that flow from the unfettered operation of the competitive process. 

5.4 Conclusion

74                        The exemption on the CBD application will promote the long-term interests of end-users.  Therefore, the Tribunal will in substance affirm the order made by the ACCC, but subject to some minor variations relating to the order’s commencement and expiry.

6 Standing

75                        Macquarie does not acquire the PSTN OA.  For this reason Macquarie’s standing to seek review is challenged.  While Macquarie does not acquire the PSTN OA, it does acquire telecommunications services from Optus (which in turn acquires those services from Telstra).  The question is whether that is sufficient to give Macquarie standing to review a decision of the ACCC.

76                        Standing is governed by s 152AV.  That section provides that an applicant for review must be a “person whose interests are affected by a decision of the [ACCC]”.  A person’s interests may be affected by a decision in different ways.  Sometimes the affect will be direct.  At other times it will be indirect.  In Re McHattan and Collector of Customs (1977) 18 ALR 154, 157 Brennan J stated that “a decision which affects the interests of one person directly may affect the interests of others indirectly. Across the pool of sundry interests, the ripples of affection may widely extend”.  That is not to say that any ripple of affection will be sufficient to support an interest:  Allan v Transurban City Link Limited (2001) 208 CLR 167, 174. 

77                        In determining whether a particular ripple of affection is sufficient to warrant standing, the words “affect” and “interest” are to be construed in “light of the scope and purpose of the particular statute in issue”: Alphapharm Pty Limited v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250,272; Allan v Transurban at 174.  Care must “be taken not to apply uncritically the meaning of the expression ‘person whose interests are affected’ in other statutes”:  Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc (2006) 94 SASR 357 at [16].

78                        The persons who may review a decision of the ACCC are those who are affected by a decision made under s 152AT or s 152ATA.  Section 152AT allows a carrier or carriage service provider to apply to the ACCC for an order exempting the carrier or provider from the standard access obligations referred to in s 152AR.  Section 152ATA permits a person who expects to be a carrier or carriage service provider to apply to the ACCC for an order that in the event that a specified service becomes a declared service, the person be exempt from the standard access obligations relating to that service.  Accordingly, both a service provider (Telstra Corporation Limited v Australian Competition Tribunal [2009] FCAFC 23 at [31]) and a person who is likely to become a service provider are persons whose interests are relevantly affected by the ACCC’s decision.  There is nothing to suggest that the ripples of affection are intended to extend more widely.  

79                        Macquarie is not a service provider with respect to PSTN OA.  Nor is there any evidence that Macquarie intends to acquire PSTN OA at any time the future.  It follows that it does not have standing.

7 National Broadband Network

80                        No mention has thus far been made about the proposed National Broadband Network (NBN).  On 11 April 2008 the Federal Government announced the proposed rollout of a fibre-to-the-node or fibre-to-the-premises broadband network.  The NBN has the potential to render Telstra’s copper network (including infrastructure such as DSLAMs dependent upon it) obsolete.  The government proposal contemplated that 98 per cent coverage will be met within five years. 

81                        The applicants and Optus submit that the proposed network is a significant fact in assessing the likelihood of further DSLAM deployment.  The contention is that an efficient access seeker would not extend its DSLAM investment if that investment would become “stranded” within a few years. 

82                        The Tribunal knows that the proposed NBN rollout has been abandoned.  In its place the Federal Government announced a new proposal for a super fast national fibre-to-the-home broadband network where 90 per cent of all Australian homes, schools and workplaces will have broadband services with speeds of up to 100 megabits per second.

83                        Section 152AW(4) requires the Tribunal on an application for review to have regard only to information that was before the ACCC when it dealt with the application the subject of the review.  In other words, the Tribunal is required for purposes of its consideration of the instant applications, to assume that the NBN still forms part of government policy, and it must ignore the new proposal and its potential impact on entrants.  Purely fortuitously, the potential impact of the NBN and the new proposal on an entrant are, for the purpose of the Tribunal’s consideration of the issues before it, the same and the Tribunal is not forced to reach a decision on what it knows to be false facts.

           

8 Conclusion

84                        The Tribunal will in substance affirm the order made by the ACCC on the CBD application.  In the metropolitan application the Tribunal will grant the exemption subject to the same limitations and conditions as in the WLR/LCS applications.

 

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Determination of the Australian Competition Tribunal.


Associate:


Dated:         24 August 2009


Counsel for the Applicants:

Mr N J O’Bryan SC

Mr M J Hoyne

 

 

Solicitor for the Applicants:

Herbert Geer

 

 

Counsel for Telstra Corporation:

Dr J Griffiths SC

Mr I R Pike

 

 

Solicitor for Telstra Corporation:

Mallesons Stephen Jacques

 

 

Counsel for Optus Networks Pty Ltd:

Mr S Free

 

 

Solicitor for Optus Networks Pty Ltd:

Minter Ellison

 

 

Counsel for the Australian Competition and Consumer Commission:

Mr S Marks SC

Mr P Gray

 

 

Solicitor for the Australian Competition and Consumer Commission:

DLA Phillips Fox

 

 

Date of Hearing:

20 – 22 April 2009

 

 

Date of Determination:

24 August 2009