ACCC formally warns NBN Co over discrimination between RSPs

10 Oct 2019

NBN Co, the company overseeing the construction and management of Australia’s National Broadband Network (NBN), has been formally warned for discriminating between retail service providers (RSPs) with relation to the supply of upgraded NBN infrastructure to business customers. In a press release regarding the matter, the Australian Competition and Consumer Commission (ACCC) said that having issued the warning, it had also accepted a court-enforceable undertaking from NBN Co, which includes a commitment by the company to take measures to ensure such conduct is not repeated.

According to the ACCC, it had determined that from at least January 2018 NBN Co offered materially different commercial terms to different RSPs as it upgraded NBN infrastructure to support high speed, business-grade services. Further, the regulator also claimed that it had provided one RSP with indicative pricing information for its new Enterprise Ethernet service months before it gave the same information to other RSPs. Following the ACCC’s investigation, NBN Co was said to have admitted that it did not have appropriate processes in place to ensure it was complying with its transparency and non-discrimination obligations. As part of the court-enforceable undertaking, the firm has reportedly committed to offering consistent contract terms to RSPs for the supply of upgraded NBN infrastructure. It has also committed to providing the same information to its customers at the same time, while it will put in place extensive compliance arrangements, including an annual independent audit of its compliance with its non-discrimination obligations.

Commenting, ACCC chairman Rod Sims said: ‘The ACCC has concluded that NBN Co failed to comply with its non-discrimination obligations on a number of fronts … These legal obligations were enacted to ensure that NBN Co does not distort competition in the market for retail NBN services, such as by favouring larger RSPs.’ He added: ‘In this case, the ACCC has not identified evidence that the conduct resulted in specific harm or competitive detriment before it came to light … Despite this, the ACCC is satisfied that NBN Co’s conduct amounted to a serious breach of its non-discrimination obligations. The undertaking we have accepted from NBN Co is intended to ensure that all access seekers can compete on an equal footing going forward.’