Part Part 6 - A Code of Access to Telecommunications Transmission Towers, Sites of Towers and Underground Facilities - glossary of terms and interpretation | Zoe
A Code of Access to Telecommunications Transmission Towers, Sites of Towers and Underground Facilities
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Annexure A establishes administrative and operational procedures
which specifically apply to telecommunications transmission
towers and sites of towers. Annexure B establishes the
administrative and operational procedures which specifically
apply to underground facilities.
1.1 Preliminary
1.1.1 Citation
This Code is called A Code of Access to Telecommunications
Transmission Towers, Sites of Towers and Underground Facilities.
For ease of reference, the Code may also be referred to as the
Facilities Access Code.
1.1.2 Commencement
This Code shall take effect on the date specified in the
Commonwealth of Australia Government Notices Gazette.
1.1.3 Variations
(1) From time to time, the provisions of the Code may be varied
by the ACCC.
(2) Carriers will be notified of variations to the Code before the
date of effect of such variations.
1.1.4 Review
The ACCC may review the Code at any time, for example,
in response to changes in relevant legislation, licence conditions
or lawful directions made by any Minister.
1.2 Scope and application of the Code
1.2.1 Facilities
The Code applies to the facilities specified in Part 5. For ease
of reference, these facilities are collectively referred to as Eligible
Facilities throughout the Code.
This Code does not apply to the extent (if any) it imposes an obligation on a designated Telstra successor company that has the effect of preventing the designated Telstra successor company from complying with an undertaking in force under section 577A of the Telecommunications Act 1997.
This Code does not apply to the extent (if any) it imposes an obligation on Telstra that has the effect of preventing Telstra from complying with an undertaking in force under section 577C or 577E of the Telecommunications Act 1997 (the Act).
For the purposes of this Code, an NBN corporation is not taken to be the operator or controller of an Eligible Facility if:
(1) there is an agreement in force between Telstra or a designated Telstra successor company and an NBN corporation,
(2) the agreement relates to an NBN corporation’s access to an Eligible Facility owned or operated by Telstra or the designated Telstra successor company, and
(3) apart from this provision, the agreement would result in the NBN corporation being the operator or controller of the Eligible Facility.
Note 1: see Chapter 5 for a full definition of Eligible Facilities.
Note 2: see Subclauses 33(8), 34(8) and 35(8) of Part 5 of Schedule 1 to the Telecommunications Act 1997.
1.2.2 Agreements
(1) Subject to sub-clause 1.2.2(2)-(4), a First and Second Carrier
may agree, in writing that particular conditions of access to
Eligible Facilities will prevail over those set out in the Code.
(2) Pursuant to sub-clause 1.2.2(1), such an agreement must
specify which provisions of the Code are to be displaced
by conditions of access of that agreement.
(3) Clauses contained in Chapter 2 of the main Code apply
notwithstanding any agreement to the contrary.
(4) A bi-lateral agreement made pursuant to sub-clause 1.2.2(1)
cannot displace multi-lateral obligations imposed on Carriers
by the Code.
Chapter 2.
Mandatory conditions of access
2.1 Confidential information — all Carriers
(1) Subject to sub-clause 2.1(4) and any statutory duties, a First
Carrier must keep confidential all Confidential Information
of the Second Carrier and a Second Carrier must keep
confidential all Confidential Information of the First Carrier
which:
(a) is disclosed, communicated or delivered to it in
connection with an application or agreement relating
to access to Eligible Facilities; or
(b) comes to its knowledge or into its possession in
connection with such an application or agreement;
and must not:
(c) use or copy such Confidential Information except for
the purposes of this Code; or
(d) disclose or communicate, cause to be disclosed
or communicated or otherwise make available such
Confidential Information to any third person.
(2) Information generated about a First or Second Carrier’s
network or facilities as a result of, or in connection with,
the provision of access to facilities is the Confidential
Information of that Carrier.
(3) Subject to sub-clause 2.1(4), Confidential Information
obtained by a First Carrier about a Second Carrier’s facilities
and Confidential Information obtained by a Second Carrier
about a First Carrier’s facilities must only be:
(a) used for the technical purpose of undertaking work
necessary to allow for facilities access or as required by
the ACMA, the ACCC or an independent expert appointed
in accordance with this Code; and
(b) as far as is reasonably practical, used by technical and
related personnel directly involved in the facilities
access task or in accordance with sub-clause 2.1(4).
(4) A First or Second Carrier (Disclosing Carrier) may disclose
the Confidential Information of a Second or First Carrier
(Other Carrier) respectively:
(a) to those of its directors, officers, employees, agents and
representatives to whom the Confidential Information is
reasonably required to be disclosed for the purposes of
a facilities access application or agreement; and
(b) to any professional person acting for the Disclosing
Carrier to the extent necessary to permit that person to
protect or advise on the rights of the Disclosing Carrier
in respect of the obligations of the Disclosing Carrier
under a facilities access agreement; and
(c) in connection with legal proceedings, arbitration, expert
determination and other dispute resolution mechanisms
or for the purpose of seeking advice from a professional
person in relation thereto; and
(d) as required by law provided that the Disclosing Carrier
has first notified the Other Carrier that it is required to
disclose the Confidential Information so that the Other
Carrier has an opportunity to protect the confidentiality
of its Confidential Information; and
(e) as required by the listing rules of any stock exchange
where a Disclosing Carrier’s securities are listed or
quoted; and
(f) with the consent of the Other Carrier; and
Note: Sub-clause 2.1(6) provides that a condition of consent may be the
acceptance of confidentiality obligations by the person to whom the
Confidential Information is disclosed.
(g) in accordance with a lawful and binding direction
issued by the ACMA or the ACCC or any Minister; and
(h) if reasonably required to protect the safety of personnel
or equipment; and
(i) as required by this Code.
(5) First and Second Carriers must establish and observe
procedures adequate to protect the Confidential Information
of the other First or Second Carrier with which it is engaged
in relation to facilities access and must ensure that each of
its directors, officers, employees, agents and representatives
to whom that Confidential information is disclosed,
in connection with a facilities access application or
agreement, is subject to and maintains the confidentiality
obligations of this clause.
(6) If required by the Other Carrier, as a condition of it giving its
consent to the disclosure of the Confidential Information of
that Other Carrier, the Disclosing Carrier, before disclosing
Confidential Information to a third person (the disclosee),
must:
(a) impose an obligation upon the disclosee:
(i) to use the Confidential Information disclosed solely
for the purposes for which the disclosure is made
and to observe appropriate confidentiality
requirements in relation to such information; and
(ii) not to disclose the Confidential Information without
the prior written consent of the Disclosing Carrier;
and
(b) obtain an acknowledgment from such a disclosee that:
(i) the Confidential Information is, and at all times
remains, proprietary to the Other Carrier; and
(ii) misuse or unauthorised disclosure of the
Confidential Information will cause serious harm
to the Other Carrier
unless disclosure is made to a third party which is the
Commonwealth or a State Government or a statutory
authority in compliance with a requirement imposed
by statute.
(7) First and Second Carriers must cooperate to:
(a) protect the confidentiality of the other Carrier’s
Confidential Information; or
(b) enforce rights in relation to its Confidential Information.
(8) Confidential Information provided by a First or Second
Carrier to the other Carrier with which it is engaged in
relation to facilities access is provided for the benefit of that
other Carrier only. First and Second Carriers must
acknowledge that no warranty is to be given by a Disclosing
Carrier that Confidential Information is or will be correct.
2.2 Non-discriminatory access to Eligible
Facilities
(1) Carriers must, in relation to the provision of access to
Eligible Facilities, as far as practicable, treat other Carriers
on a non-discriminatory basis. For a First Carrier, this would
include taking all reasonable steps to ensure that, as far as
practicable, having regard to its legitimate business interests
and the interests of third parties, that the Second Carrier
receives timely provision of access that is equivalent to that
which the First Carrier provides to itself.
(2) The non-discrimination principles referred to in
sub-paragraph 2. 2(1) do not apply to the extent that it is not
reasonably practicable for parties to receive equivalent
access. In such circumstances, the First Carrier must ensure
that access is provided in a manner consistent with the
queuing policy principles set out in clause 2.3 of the main
Code.
(3) The non-discrimination principles are not intended to limit
a Second Carrier’s ability to obtain, on request, access of
a lower quality than that which the First Carrier provides
to itself, subject to technical feasibility.
(4) The non-discrimination principles are not intended to limit
a Second Carrier’s ability to obtain, on request, access of
a superior quality than that which the First Carrier provides
to itself, provided always that the First Carrier will not be
required to accept such a request.
2.3 Queuing policy
(1) The First Carrier must develop a queuing policy for
applications for the supply of access to an Eligible Facility.
(2) Subject to the legislative requirements of Part 5 to provide
access to Second Carriers, the queuing policy must include
the First Carrier’s applications and orders.
(3) The queuing policy must be consistent with the following
principles:
(i) the queuing policy of the First Carrier must be
non-discriminatory; and
(ii) subject to paragraph (i) above, the First Carrier must
seek to maximise the efficiency of its queuing policy. Subject to sub-clauses (7) and (8), this includes a requirement that a Facilities Access Application must be removed from the queue for a Tower and/or Tower Site after 24 months from the date that application was accepted, if the Carrier has not commenced ordering and/or installing Equipment on or in that Tower and/or Tower Site. The Carrier may then lodge a new Facilities Access Application.
(4) The queuing policy must apply to a First Carrier’s :
(i) review of applications before being accepted or
rejected; and
(ii) its fulfilment of accepted Facilities Access Applications.
(5) The First Carrier must, within five Business Days of receipt
of a Facilities Access Application, notify the Second Carrier
of its acceptance on a queue in relation to its review
of applications.
(6) The queuing policy must provide that a Second Carrier
may prescribe the order in which applications placed
simultaneously by it with the First Carrier should be treated
in a queue.
(7) Paragraph 2.3(3)(ii) does not apply to Facilities Access Applications submitted before the commencement of the A Code of Access to Telecommunications Transmission Towers, Sites of Towers and Underground Facilities Amendment 2020 (No. 1).
(8) In circumstances where:
(i) a Facilities Access Application from a Carrier has been accepted in the period ending six months after the commencement of the A Code of Access to Telecommunications Transmission Towers, Sites of Towers and Underground Facilities Amendment 2020 (No. 1); and
(ii) the Carrier has not, within 30 months of that Facilities Access Application being accepted, commenced ordering and/or installing Equipment on or in that Tower and/or Tower Site to which that Facilities Access Application relates;
the Facilities Access Application must be removed from the queue.
2.4 Dispute Resolution — the giving of access
(1) In the event that a dispute arises in negotiations over the
terms and conditions of a Master Access Agreement or over
access to a particular Eligible Facility (or Facilities), Carriers
must engage in their own dispute resolution and, if necessary, mediation.
(2) In attempting to resolve disputes pursuant to sub-clause
2.4(1), Carriers must have regard to:
(a) the criteria the ACCC must take into account if it
is required to make a determination on terms and
conditions under clause 36 of Part 5 of Schedule 1
of the Telecommunications Act; and
Note: see Telecommunications (Arbitration) Regulations, Statutory Rules