ACCC seeking variation of NBN Co’s Special Access Undertaking

8 Oct 2013

The Australian Competition and Consumer Commission (ACCC) has published a variation notice formally seeking changes to the Special Access Undertaking (SAU) offered by NBN Co, the public-private company overseeing the National Broadband Network (NBN) project in December 2012. With the SAU forming a key part of the framework that governs the price and other terms upon which NBN Co will supply services to operators until 2040, key changes include: extending the number of price reviews the ACCC may undertake during the NBN rollout period from one to two; new provisions preventing NBN Co from making variations to an existing product that reduce the functionality, performance or features of the product; and further changes relating to the ACCC’s assessment of the prudency and efficiency of NBN Co’s capital expenditure during the rollout period.

NBN Co now has until 19 November 2013 to respond to the variation notice, and should it submit a varied SAU in response, the ACCC has said it will consult with stakeholders. However, if the varied SAU is in accord with the regulator’s variation notice, the ACCC has said it expects that subsequent consultations will be ‘very brief given the extensive consultation that has already occurred’. Meanwhile, should NBN Co not respond by the aforementioned deadline, the ACCC said it will make its final decision on the SAU that was lodged in December 2012.

Commenting on the development, ACCC Chairman Rod Sims said: ‘Finalising the SAU will provide the regulatory certainty that access seekers are requesting before they enter into longer term commercial contracts with NBN Co,’ adding: ‘The ACCC understands that the government will now provide new policy directions to NBN Co. However, most of the commitments in the SAU are technology neutral and will apply even with a significant change in network design.’