Ten years on - How is Part XIC of the Trade Practices Act holding up to the infrastructure onslaught?
After ten years on the statute books, Part XIC of the Trade Practices Act 1974 (Cth) (the "TPA") is being called upon more _ and is under greater pressure _ than ever. Part XIC gives telecommunications carriers and carriage service providers a right of access to "declared services": essentially the bottleneck services which form the building blocks of telephony, data and video services that we seem to be craving with an insatiable appetite. Some of the declared services with which most of us are familiar include access to the public switched telephone network ("PSTN"), mobile termination access, some transmission routes and, of course, the unconditioned local loop service ("ULLS"). In the early days of "telecommunications deregulation", the race was on for access to Telstra's PSTN, so that the likes of Optus, Primus Telecom and AAPT could provide competitively priced long-distance and international telephone services. However, whilst it may not have been apparent in 1997, ULLS has turned out to become probably the greatest source of competitive tension in the telecommunications industry. One company (namely, Telstra) owns practically all of the underground copper-wire network which forms the basis of the ULLS and many of its competitors are now exercising their statutory right to obtain access to the ULLS, so that they may provide high-speed broadband services to their customers. This has been described as a move to facilities-based competition. However, not wanting to stand still, commentators, industry players and regulators are already looking ahead to the next stage of infrastructure competition in the communications industry generally. Somewhat fortunately, there have been a number of decisions on "appeal" to the Australian Competition Tribunal in the last several years, which have shed light on the proper application of Part XIC. These have mostly focussed on access to the "copper network" and mobile termination services, but the Tribunal's decisions apply across the various declared services (and other services for which it is anticipated that declaration will apply).
