06/07/2020

In August 2018, the Australian Competition and Consumer Commission (ACCC) commenced a review of A Code of Access to Telecommunications Transmission Towers, Sites of Towers and Underground Facilities (Cth) (the Facilities Access Code). The Facilities Access Code is a regime that provides telecommunications carriers with statutory rights to access the facilities of other telecommunications carriers for purposes of installing facilities. It is designed to encourage the sharing of infrastructure and to avoid unnecessary, inefficient (and at times unsightly) duplication of infrastructure. The Facilities Access Code also encourages competition by making it easier for new entrants to join the market.

The ACCC published the findings from their review in the Facilities Access Code Review – Final Report on 25 June 2020 (the Final Report). In the Final Report, the ACCC concluded that while the Facilities Access Code was fit for purpose and largely operating well, there was room for ‘enhancements’. A Code of Access to Telecommunications Transmission Towers, Sites of Towers and Underground Facilities Amendment 2020 (No. 1) (Cth) amends the Facilities Access Code to give effect to the enhancements recommended by the ACCC. This article explores these enhancements and their impact on telecommunication carriers.

What is the Facilities Access Code?

Part 5 of Schedule 1 to the Telecommunications Act 1997 (Cth) (the Telco Act) contains a statutory regime giving telecommunications carrier access to:

  • telecommunications transmission towers;
  • tower sites; and
  • underground facilities,

together, Eligible Facilities owned or operated by other telecommunications carriers.

The Facilities Access Code was developed by the ACCC under Schedule 1 to give effect to this statutory right of access. All carriers must comply with the Facilities Access Code as a condition of their carrier licence, although they are also able to (and commonly do) enter into commercial agreements (master access agreements) to govern access with other carriers. The Facilities Access Code applies where no agreement has been entered into.

Why now?

The Facilities Access Code was introduced in 1999. It was last reviewed and amended in 2013. Substantial changes in the telecommunications sector since that time necessitated a review of the Facilities Access Code. In particular, there was seen to be a need to identify and remove barriers to the timely deployment of mobile infrastructure, particularly in regional areas, and to ensure that regulatory settings promote investment in 5G technologies.

What are the enhancements?

The pre-build consultation process

One of the issues identified to the ACCC as part of its review was that access seekers were not being given sufficient notice of co-location opportunities before new sites were built. It was argued that this limited opportunities for collaborating on design and construction of new towers, as well as the scope for co-building.

The Facilities Access Code previously included non-binding guidance recommending that a carrier intending to establish a new Eligible Facility in a postcode area make reasonable attempts to inform all other carriers of its plans to do so and request that they consider establishing a shared site.

In the Final Report, the ACCC recommended that this process be strengthened to require a carrier to notify other carriers of any planned telecommunications transmission towers and tower sites (but not underground facilities such as ducts) and on request to use its reasonable endeavours to provide further information that may be relevant to a second carrier’s decision to seek access.

Use it or lose it

The Facilities Access Code includes an ability for telecommunications carriers to reserve capacity that they intend to use in future, either on their own or other carrier’s infrastructure. This is commonly known as submitting an application to the “queue”.

It had previously been claimed that some carriers had used this process to engage in ‘extensive gaming’ to delay and frustrate the sharing of regional mobile tower infrastructure by reserving capacity for unreasonable periods of time without genuine plans to use the reserved space to install equipment.

In the Final Report, the ACCC recommended the introduction of a ‘use it or lose it’ principle, whereby carriers reserving capacity on transmission towers or tower sites would lose that capacity if they did not commence ordering and/or installing equipment on that tower or site within 24 months of the date that their application was accepted to the queue. The ACCC considers this timeframe to be sufficient to allow carriers to demonstrate that they have genuine plans to use any reserved capacity. It is also consistent with industry advice on the usual length of a carrier’s future work plans and the time that Telstra currently gives carriers access to its mobile sites to commence construction activity after approving their application.

There is a grandfathering principle which provides that the 24 month timeframe will not apply to applications accepted prior to these enhancements coming into force. It also will not apply to any applications for capacity made within six months of this date. Such applications will instead be subject to an extended timeframe of 30 months.

Notification of completion

In its response to the ACCC’s 2018 An ACCC Discussion Paper reviewing “A Code of Access to Telecommunications Transmission Towers, Sites of Towers and Underground Facilities”, NBN Co submitted that there was ambiguity under the previous process around when an access seeker had completed installing its equipment on another carrier’s site. It argued that having certainty around this process would help ensure that requests were able to be progressed through the queue.

In the Final Report, the ACCC recommended the introduction of a 20 business day period in which access seekers would be required to notify access owners of their completion of installation activities. The ACCC believes that this will assist access owners to have more accurate information as to available capacity.

What’s next?

The changes came into effect on 12 June 2020. The Telco Act requires carriers to comply with the Facilities Access Code, meaning that a failure to do so may result in penalties under the Telco Act and put a carrier in breach of its licence conditions.

 

Authors: Lesley Sutton, Linda Marshall and Thomas Power

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