The competition watchdog has issued a draft determination proposing to grant conditional authorisation until the end January for NBN Co and a group of retail communications services providers to work together to bolster capacity amid COVID-19 disruptions.
The Australian Competition and Consumer Commission (ACCC) in April temporarily granted NBN Co and Australia's five largest telcos authorisation to form a special working group to keep businesses and consumers connected and supported during the spread of COVID-19.
On 26 June 2020 and 16 July, NBN Co amended its application for authorisation to narrow the scope of the proposed conduct and the period for which authorisation was sought.
Now, the ACCC has proposed in a draft determination to grant authorisation until the end of January on the same terms as the interim authorisation that it granted in relation to an earlier application in July, involving two conditions aimed at ensuring there is sufficient transparency over the conduct of the Special Working Group.
The Special Working Group currently comprises Telstra, Optus, TPG/Vodafone, Vocus and Aussie Broadband.
Under the authorisation, the Special Working Group can discuss, agree, and implement capacity optimisation strategies for the National Broadband Network (NBN), solely for the purpose of responding to the changes in demand on the network resulting from the COVID-19 pandemic.
Authorisation, which provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010, is proposed until 31 January 2021.
This provides businesses with legal protection for arrangements that may otherwise risk breaching competition law, but are not harmful to competition or are likely to result in overall public benefits.
However, under the draft determination, to ensure there is sufficient transparency over the Special Working Group, the proposed authorisation is subject to certain reporting obligations. These are the same as those under the ACCC’s recent replacement interim authorisation decision of 23 July 2020.
The ACCC is now calling on submissions in relation to this draft determination, including the proposed period of authorisation before making its final decision.