Application by Chime Communications Pty Ltd (No 3) [2009] ACompT 4

Application by Chime Communications Pty Ltd (No 3) [2009] ACompT 4

The Tribunal maintained a modified market share condition because deregulation under Pt XIC required more than the mere possibility of entry or a single small-scale entrant; before exemption, there should be at least three ULLS-based competitors in addition to Telstra, an aggregate ULLS-based competitor market share of at least 30% including installed spare capacity, and ULLS spare capacity equal to or greater than 40% of aggregate WLR SIOs, so that competitors were likely to be commercially meaningful and able to continue constraining Telstra. The Tribunal dropped the pair gain condition because its imposition would be disproportionately expensive in light of the complexity, cost and...

Jurisdiction
Australia
Judgment Date
24 August 2009
Procedural Posture
Application Under Section 152 AV of the Trade Practices Act 1974 (cth) for Review of an Exemption Order Decision Made by the Australian Competition and Consumer Commission in Relation to Telstra Corporation Limited Pursuant to Section 152 At(3)(a) / Reasons for Determination and Final Orders After Further Submissions on Proposed Exemption Orders
Outcome
The Tribunal published final orders varying the ACCC's Individual Exemption Orders and granting Telstra conditional exemptions for the LCS and WLR services within Exemption ESAs; the market share condition was maintained in modified form and the pair gain condition was not imposed.
Legal Topics
['telecommunications Access Regime' 'standard Access Obligations' 'wholesale Line Rental Service' 'local Carriage Service' 'unconditioned Local Loop Service' 'market Share Condition' 'competition and Market Power' 'exemption Orders']
['competition and Consumer Law' 'telecommunications Regulation' 'administrative Review'] ['telecommunications Access Regime' 'standard Access Obligations' 'wholesale Line Rental Service' 'local Carriage Service' 'unconditioned Local Loop Service' 'market Share Condition' 'competition and Market Power' 'exemption Orders']

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Procedural Posture

Application Under Section 152 AV of the Trade Practices Act 1974 (cth) for Review of an Exemption Order Decision Made by the Australian Competition and Consumer Commission in Relation to Telstra Corporation Limited Pursuant to Section 152 At(3)(a) / Reasons for Determination and Final Orders After Further Submissions on Proposed Exemption Orders

Legal Issues

  1. 1 ["Whether the Tribunal should maintain a market share condition as a condition of Telstra's exemption from standard access obligations for the WLR service and LCS." 'Whether a proposed pair gain condition should be imposed on the exemptions.' 'Whether other conditions, including LSS to ULLS migration conditions, should be included in the exemption orders.']

Ratio Decidendi

The Tribunal maintained a modified market share condition because deregulation under Pt XIC required more than the mere possibility of entry or a single small-scale entrant; before exemption, there should be at least three ULLS-based competitors in addition to Telstra, an aggregate ULLS-based competitor market share of at least 30% including installed spare capacity, and ULLS spare capacity equal to or greater than 40% of aggregate WLR SIOs, so that competitors were likely to be commercially meaningful and able to continue constraining Telstra. The Tribunal dropped the pair gain condition because its imposition would be disproportionately expensive in light of the complexity, cost and...

Court Disposition

The Tribunal published final orders varying the ACCC's Individual Exemption Orders and granting Telstra conditional exemptions for the LCS and WLR services within Exemption ESAs; the market share condition was maintained in modified form and the pair gain condition was not imposed.

Orders

  • ["The Tribunal's 2009 LCS Individual Exemption Order varies Individual Exemption Orders No 1 and No 3 of 2008 made by the Commission on or about 22 August 2008." "The Tribunal's 2009 WLR Individual Exemption Order varies Individual Exemption Orders No 2 and No 4 of 2008 made by the Commission on or about 22 August...