Transcript laws 3054 media and communications industry regulation

BROADBAND TO WHERE?
A New Definition and Regulatory
Framework for the NBN
Holly Raiche
Session Outline
What is Broadband
What is the NBN
Regulatory Framework for Delivering
Broadband
•Legislation/Regulators
•Basic Concepts
•Competition Regulation
A National Broadband Network
•The policy
•The Regulatory Framework
•New competition rules
•A progress report
What Is Broadband
Peak speed (noting distance as a factor)
Dial Up Modem - 56 Kb/s
ISDN - 64 Kb/s
ADSL - 512/128 Kb/s
VDSL - 100 Mb/s - symmetric speeds
WiMax – 10 Mb/s
Satellite – 1 Mb/s – 50 Mb/s
3G – 100 Kb/s – 3 Mb/s
Fibre – 100 Mb/s – to Gb/s
OECD (2006) Download speed 256 Kb/s
FCC (2009) - 768 Kb/s
ITU-T 1.5 - 2Mb/s
(MPEG2 video uses 6 Mb/s)
Government Policies on Broadband
Narrowband to all
1975 - Aust. Telecommunications Commission
1989 - Community Service Obligations
1991 - Universal Service Obligation - to include
prescribed carriage services - a possibility?
Broadband to all (?)
1991 - Digital Data Service Obligation - ISDN
BSEG, HiBIS, BSG, etc etc
2007 - Broadband Guarantee
2007 - ALP Election - $4.7 billion, 12 Mb/s, FTTN, to
98% of the population - over 5 yrs
April 2009 – The NBN – FTTP delivering speeds of
up to 100Mb/s to 90% of the population, at a cost of
$43 billion
THE NBN
WHAT IS THE NATIONAL BROADBAND
NETWORK? (NBN)
Delivery of Broadband to 100% of Australian
Premise (FTTP/FTTH) (up to 100 Mb/s)
•Fibre optical cable to 93% of premises (up to 12
Mb/s_
•Fixed mobile to approximately 3% of premises
•Satellite to approximately 3% of premises (Up to
12 Mb/s)
Delivered by wholesale only open access
provider
By company (NBN Co) Government owned
(until at least 8 years ofter network up and
running)
Policy Objectives: Competition and Broadband
Improved competition
•For fixed line access network - functional or
structural separation by Telstra
•Government owned NBN Co to provide
•the local access network (plus…)
•backhaul in non-competitive areas
•which is open access, wholesale only
•at a uniform wholesale access price
Ubiquitous Higher Speed Broadband
•93% of premises – fibre
•7% of premises - wireless (fixed
wireless/satellite)
TELELCOMMUNICATIONS: The NBN
TELELCOMMUNICATIONS: The NBN
TELECOMMUNICATIONS: REGULATION
LEGISLATION
Telecommunications Act 1997
Telecommunications (Consumer Protection
and Service Standards) Act 1999
Radiocommunications Act 1992
Competition and consumer Act
2010(particularly Parts XIB & XIC)
REGULATORS
Australian Communications and Media
Authority (ACMA)
Australian Competition and Consumer
Commission (ACCC)
TELELCOMMUNICATIONS: KEY CONCEPTS
PSTN
ISP
BGR
ISP
BGR
LEX
Gateway
LEX
CAN
Local
Loop
Access
Network
Backhaul
KEY CONCEPTS
Carriage - the use of electromagnetic energy to
deliver communications at a distance
Telecommunications network (s. 7 TA)
A system or series of systems that carries or is
capable of carrying communications by means of
guided and/or unguided electromagnetic energy
Radiocommunications (s.6 RA)
A radio emission (any emission of electromagnetic
energy of frequencies less than 420 terahertz without
artificial guide, whether or not any person intended
the emission to occur) or reception or radio emission
for the purpose of communicating information
between persons and persons, persons and things or
things and things
KEY CONCEPTS
Regulation of radiocommunications
carriage:
•Telecommunications Act
•S. 12 - The Act has effect subject to the
Radiocommunications Act 1992 (but the fact
that a person is authorised to do something
under the RA does not mean they are
authorised under TA)
•Radiocommunications Act 1992 - Part 3.1 essentially a prohibition on the operation of an
unlicensed radiocommunications device except
in exceptional circumstances.
RADIOCOMMUNICATIONS
Prohibitions
•Operate a radcom device unless
authorised by licence
•Unlawful possession of radcom device
•Cause a radio emission from non-standard
transmitter
•Have in possession a non-standard
transmitter
•Supply a non-standard device
•Sell/supply a device without required label
affixed
•Operate or supply a prohibited device
RADIOCOMMUNICATIONS OVERVIEW
Radiocommunications Act 1992 •Spectrum Planning
•Radcom licences
•Apparatus
•Spectrum
•Class
•Technical Regulation
•Enforcement
RADIOCOMMUNICATIONS OVERVIEW
Radiocommunications Act 1992 •Spectrum Planning
•Radcom licences
•Apparatus
•Spectrum
•Class
•Technical Regulation
•Enforcement
RADIOCOMMUNICATIONS
Spectrum Plan
Region 1
315 Ğ325
AERONAUTICAL
RADIONAVIGATION
Maritime radionavigation
(radiobeacons) 73
72 75
325 Ğ405
AERONAUTICAL
RADIONAVIGATION
72
405 Ğ415
RADIONAVIGATION 76
72
415 Ğ435
MARITIME MOBILE 79
AERONAUTICAL
RADIONAVIGATION
72
435 Ğ495
MARITIME MOBILE 79 79A
Aeronautical radionavigation
72 82
Column 1: ITU Radio Regulations Table of Allocations
Region 2
Region 3
315 Ğ325
315 Ğ325
MARITIME RADIONAVIGATION AERONAUTICAL
(radiobeacons) 73
RADIONAVIGATION
Aeronautical radionavigation
MARITIME RADIONAVIGATION
(radiobeacons) 73
325 Ğ335
325 Ğ405
AERONAUTICAL
AERONAUTICAL
RADIONAVIGATION
RADIONAVIGATION
Aeronautical mobile
Aeronautical mobile
Maritime radionavigation
(radiobeacons)
335 Ğ405
AERONAUTICAL
RADIONAVIGATION
Aeronautical mobile
405 Ğ415
RADIONAVIGATION 76
Aeronautical mobile
415 Ğ495
MARITIME MOBILE 79 79A
Aeronautical radionavigation 80
Column 2:
Australian Table of Allocations
315 Ğ325
AERONAUTICAL
RADIONAVIGATION AUS49
MARITIME RADIONAVIGATION
(radiobeacons) 73
AUS68
325 Ğ405
AERONAUTICAL
RADIONAVIGATION AUS49
AUS68
405 Ğ415
RADIONAVIGATION 76
AUS68
415 Ğ495
MARITIME MOBILE 79 79A
AERONAUTICAL
RADIONAVIGATION 77
AUS49
82 AUS68
77 78 82
RADIOCOMMUNICATIONS
Spectrum Plan
Region 1
315 Ğ325
AERONAUTICAL
RADIONAVIGATION
Maritime radionavigation
(radiobeacons) 73
72 75
325 Ğ405
AERONAUTICAL
RADIONAVIGATION
72
405 Ğ415
RADIONAVIGATION 76
72
415 Ğ435
MARITIME MOBILE 79
AERONAUTICAL
RADIONAVIGATION
72
435 Ğ495
MARITIME MOBILE 79 79A
Aeronautical radionavigation
72 82
Column 1: ITU Radio Regulations Table of Allocations
Region 2
Region 3
315 Ğ325
315 Ğ325
MARITIME RADIONAVIGATION AERONAUTICAL
(radiobeacons) 73
RADIONAVIGATION
Aeronautical radionavigation
MARITIME RADIONAVIGATION
(radiobeacons) 73
325 Ğ335
325 Ğ405
AERONAUTICAL
AERONAUTICAL
RADIONAVIGATION
RADIONAVIGATION
Aeronautical mobile
Aeronautical mobile
Maritime radionavigation
(radiobeacons)
335 Ğ405
AERONAUTICAL
RADIONAVIGATION
Aeronautical mobile
405 Ğ415
RADIONAVIGATION 76
Aeronautical mobile
415 Ğ495
MARITIME MOBILE 79 79A
Aeronautical radionavigation 80
Column 2:
Australian Table of Allocations
315 Ğ325
AERONAUTICAL
RADIONAVIGATION AUS49
MARITIME RADIONAVIGATION
(radiobeacons) 73
AUS68
325 Ğ405
AERONAUTICAL
RADIONAVIGATION AUS49
AUS68
405 Ğ415
RADIONAVIGATION 76
AUS68
415 Ğ495
MARITIME MOBILE 79 79A
AERONAUTICAL
RADIONAVIGATION 77
AUS49
82 AUS68
77 78 82
TELELCOMMUNICATIONS: KEY CONCEPTS
Carriers - What are they
owner(s) of network units used to supply
carriage services to the public must
obtain a carrier licence (s. 42)
•network Units
•line link(s)s connecting distinct places over a statutory
distance
•Designated radiocommunications facilities
•carriage services - service for carrying
communications by means of guided and/or
unguided electromagnetic energy
•supply to the public - if unit used for carriage of
communications between two end users where at
least one end user is outside immediate circle of
owner of network unit
TELELCOMMUNICATIONS: KEY CONCEPTS
SERVICE PROVIDERS (S. 86)
Includes Carriage and Content Service Providers
Carriage Service Providers (s. 87)
If person supplies a listed carriage service to the
public using network units.
Listed carriage service (s. 16)
Carriage service between point in Aust and another
point in Aust or point outside Aust
Supply to the public (s. 88 - as before)
Content Service Providers (s. 97(2)
If person uses/proposes to use listed carriage
service to supply a content service to the public - is a
listed content provider.
Content service (s. 15) is B’casting service, on-line
information or entertainment service, any other online service by Min. Determination
TELELCOMMUNICATIONS: KEY CONCEPTS
A Wider Definition of Service Provider?
The Attorney-General’s Dept has proposed a wider
definition of CSP for the purposes of the Copyright Act –
safe harbour scheme:
Service Provider – to go beyond providers of access to
public networks supplied to the public
Could include
•Online search engine
•Bulletin boards
•ISPs providing P2P
•Providers of messaging services, chat etc
Competition in Carriage
In Telecommunications - competition almost always
involves access to a competitor’s infrastructure/
services. So necessarily it is about cooperation in a
competitive environment.
TA
•Schedule 1 - Access to Facilities (towers, ducts,
pipes etc)
CCA
•Part XIB - Anti-competitive conduct
•Part XIC - The Access Regime
ACCESS TO FACILITIES
Carrier requirement to give another carrier access to
1st carrier’s infrastructure (for sole purpose of
supplying competing infrastructure/services (given
reasonable request and reasonable notice)
(Schedule 1, Part 3 TA)
Access to facilities (infrastructure of a telecoms network,
or a line, ducts etc for use in connection with a network def. s. 7)
On agreed terms or arbitrated by ACCC (Cl 18)
Minister can make pricing determination (Cl 19)
Access to network Information
Access to info on likely changes to network facilities
Access to service quality information
•NB: Under NBN legislation, now covers access to
facilities by carriers AND carriage service providers.
Competition Rules
PART XIB
Competition Rule - Must not engage in anticompetitive conduct
•Breach of basic trade practice rules (Pt IV)
•If have substantial degree of market power, take
advantage of that power with the effect of
substantially lessening competition in that or
other Telco markets
Competition Notices
Record Keeping Rules
Part XIC: The Access Regime
Definitions
•Access - to listed carriage services
•Access Seekers - requested access to a declared
listed carriage service
•Access Providers
•Carriage services
•Declared services/active declared services
Objects of Part XIC
•Promotion of LTIE
•Promotion of competition in markets
•Achieving any-to-any connectivity
•Encouraging economically efficient use and
investment in infrastructure
Part XIC: The Access Regime (cont’d)
Declaration of Service
•After a public inquiry - initiated by the ACCC or an
individual
•Access to declared service through commercial
negotiation or arbitration
Standard Access Obligations
•Must supply service
•Must provide interconnection
•Must supply service on equivalent terms and conditions to
what provided to self - technical, operational quality, fault
detection, handling & rectification
•Provision of billing, including timing and content
•Access to conditional access customer equipment
The Access Regime
Service Declaration – New Process
Explanatory Memorandum: CCS Act
‘Since it is clear that the ‘negotiate-arbitrate’
model is not producing effective outcomes
for industry or consumers … the Bill reforms
the regime to allow the regulator to set up
front prices and non-price terms for
declared services. This will create a
benchmark which access seekers can fall
back on, while still allowing parties to
negotiate different terms.’
THE ACCESS REGIME
• Declaration – Objects of Part XIC: LTIE
• Standard Access Obligations (SAO)
• Exemptions
Negotiate/arbitrate model replaced with
• Access undertakings
• Binding rules of conduct
• Access determinations
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TELECOMMUNICATIONS: Declarations
ACCC can still declare services – LTIE
criteria
For services not supplied by NBN
companies:
•Current declarations remain in force
•Service supplied by CSP under Special Access
Undertakings (SAU) in operation (s. 152CBA )
CSP proposing to supply eligible service gives SAU to
ACCC – undertaking to be bound by obligations in
152AR – SAOs - as applicable and terms in SAU)
Expiry
•Was 5 years
•New - expiry should occur in 3 – 5 years, unless
the ACCC considers otherwise
TELELCOMMUNICATIONS: ACCESS
OBLIGATIONS –Hierarchy (s. 152 AY)
C/CSP required to comply with any/all
SAOs that apply to them – then
comply with (in order):
•Access Agreement
•Ministerial Pricing Determinations
•SAU
•Final Migration Plan
•Binding Rules of Conduct (BRU)
•Access Determination
How it all fits together
Key: Prevails over
ACCESS AGREEMENTS
Ministerial Pricing Determinations
Special Access Undertakings
Final Migration Plan
Binding Rules of Conduct
ACCESS DETERMINATIONS
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ACCESS AGREEMENT (152BE-BED)
•Agreement must be
•In writing
•Legally enforceable
•Relate to access to a declared service
•Parties are an access seeker and provider of the
service
•Can embody any/all terms and conditions on which
service provided, including SAO, BRA, AD
•Must be lodged with ACCC within 28 days
•If agreement terminated, ACCC must be notified
•Compliance both a carrier licence condition and a
service provider rule.
MINISTERIAL PRICING DETERMINATION
s. 152CH
The Minister may make a written determination
setting out principles dealing with price-related
terms and conditions relating to SAOs.
(overrides SAUs, special access undertakings,
access undertakings, binding rules of conduct,
access determinations)
Is a disallowable instrument
SPECIAL ACCESS UNDERTAKING
Special Access Undertakings (ss. 152CBA ff)
Carrier/CSP who is/expects to supply a listed carriage
service or service that facilitates the supply of a listed
carriage service
May give a Special access Undertaking (SAU) to ACCC –
stating (apart from service/T&C of supply of service)
•That it agrees to be bound by SAOS as applicable and
•Undertakes to comply with T&C in the SAU
•Must be consistent with relevant SAOs and Ministerial
Pricing Determinations
•Can be accepted or rejected by the ACCC
•ACCC must maintain a register of SAUs
(NB: No more ordinary Access undertakings – the
same effect is achieved with the Access
Determinations)
BINDING RULES OF CONDUCT
•Can be made by the ACCC (152BD-BDN)
•About:
•T&C on which C/CSP complies with applicable SAOs,
•Extend/enhance capability of facility
•Require compliance etc
•(with limitations on the power)
•May be of general application, or limited to
specific class of C/CSP or specific C/CS
•Duration – no more than 12 months
•Can be overridden by access agreements
•Compliance a carrier licence condition and
service provider rule
ACCESS DETERMINATIONS
ACCC can make AD (152BC-BCW) that
•Specify any or all terms and conditions for
compliance with SAOs
•Specify any other terms and conditions of an AS’s
access to the declared service
•Provide that any or all SAOs are not applicable to a
C/CSP
•Deal with any other matter relating to access to the
declared service
•may make different provision with respect to different
C/CSP or AS
•Cannot override Access Agreements
•Can include Fixed Principles (152BCD)
•Can make Interim Access Determinations
•Cannot be made until after public inquiry
•Compliance: carrier licence condition or service
provider rule
•Must be register of ADs
Functional/Structural Separation
Under CCS Act, Telstra could:
Functionally Separate
•Separation of Telstra’s wholesale/retail units
•Undertaking to divest interest in HFC Cable/FOXTEL
(each/both can be exempted by Minister)
•Minister can limit allocation of spectrum licence
OR
Structurally Separate
Undertaking will not supply fixed line carriage
service/control of company that supplies fixed line
services to retail customers using telecommunications
network by 1 July 2018.
Telecommunications
The Alternative: Structural Separation
(s. 577A TA)
Telstra will not supply fixed line carriage
services (or in a position to control)
company that supplies) using a
telecommunications network over which
Telstra is in a position to exercise control.
Taking into account:
Matter relating to transparency and
equivalence in relation to the supply by
Telstra of regulated services to Telstra
wholesale customers and Telstra retail
business units
STRUCTURAL SEPARATION
Definitive Agreement 23 June 2011 NBN Co
– with Telstra and Optus
•NBN Co access to infrastructure (pipes, ducts)
•Reuse of infrastructure by NBN Co
•Telstra/Optus to progressively decommission
copper local access network and HFC network
•Government funding provided
Dependent on
•Shareholder approval; and
•ACCC approval of Telstra’s Structural
Separation Undertaking
•BY 20 December 2011
PROGRESS ON NBN
•ACCC to declare the NBN Layer 2 bitstream
service – once done will not have expiry date
So….
•ACCC Discussion paper on service level
description for declaration – by April 2012
•NBN to submit a Standard Access Undertaking
for its service – including terms and conditions
of service and
• a wholesale Broadband agreement (in
essence an access agreement) (now on version
4 – modified so it is an interim document lasting
only a year (one of main issues – service level
rebates)
STRUCTURAL SEPARATION
Structural Separation documents to contain
•Telstra (and Optus) commitment to cease to supply
specified services by designated day
•Equivalence and transparency measures leading up
to designated day
•Migration plan – movement of fixed line services to
NBN Co
ACCC concerns
•No compliance plan
•No clear commitment to equivalence of outcomes
•Agreements between NBN Co and Telstra (and
Optus) access agreements (no ACCC scrutiny)
•A broad variation mechanism
Telecommunications