Optus and nbn Co are free to complete a deal that will see the telco sell its hybrid-fiber coaxial (HFC) network after getting the green light from the Australian Competition and Consumer Commission (ACCC).
Authorisation was also granted for 35 years and follows the ACCC’s draft decision released in July.
The commission accepted that, in the absence of the revised arrangements, the parties would have relied upon their original arrangement which would ultimately result in Optus decommissioning its HFC network.
The original arrangement was authorised in 2012. Assessing the revised arrangements, the ACCC concluded it would not have exercised its discretion to initiate a revocation of the existing authorisation.
ACCC chairman, Rod Sims, said the watchdog considered the need for regulatory certainty and its view that the balance of benefits and detriments identified in 2012 was not likely to have changed, despite policy and technological changes since.
“This was partly because Optus would still be unlikely to invest in significant upgrades of its HFC network in order to provide infrastructure based competition beyond the short to medium term,” Sims said.
“Regardless of whether the proposed acquisition occurs or not, we judged that Optus and nbn Co would not compete with each other.
“As a result, the ACCC concluded that the proposed acquisition is unlikely to substantially lessen competition in any relevant market.”
The revised arrangements involve the progressive migration of Optus’ HFC subscribers to the new multi-technology NBN, while parts of Optus’ HFC network are integrated into the NBN. They also involve an obligation on Optus to use the NBN for 15 years and Optus sharing spectrum on its coaxial network with nbn Co, prior to it taking ownership of that network.
These arrangements form part of a broader transaction that involves the acquisition of Optus’ HFC assets. The ACCC said it had to assess the proposed arrangements under two separate processes – the authorisation provisions of the Competition and Consumer Act 2010 (the Act) and its informal merger review process.
“The ACCC acknowledges the broader proposal for nbn Co to acquire Optus’ HFC network assets will allow it to utilise existing HFC infrastructure in rolling out the NBN, which is likely to generate cost savings,” Sims concluded.