Preface

This final Determination comprises three Parts.

Part 1 is the Introductory Section that provides the background, principles and processes that the Commission has followed in developing this final Determination.

Part 2 of the final Determination is the Principles – Specific Issues section that contains the issues as raised by industry and details the Commission’s approach to the issues and the principle it has applied in arriving at its Determination. Following the discussion of each issue, there is a reference to the applicable model clauses in Part 3.

Part 3 contains the indicative Model Clauses which are intended to reflect the principles as enunciated in Part 2. Generally speaking, each issue within Part 2 is referable to an applicable clause in Part 3.

Part 1. Introductory Section

Introduction

On 19 December 2002, the Telecommunications Competition Act 2002 came into effect making certain amendments to the telecommunications industry regulatory regime in Parts XIB and XIC of the Trade Practices Act 1974 (‘TPA’).1 Amongst the package of reforms was a new regulatory requirement concerning the establishment of model terms and conditions relating to access to core telecommunications services.2

Specifically, the new s152AQB requires the Commission to publish a written determination concerning non-binding model price and non-price terms and conditions of access for each of the “core” services.3 This final Determination addresses the non-price aspects of this legislative requirement.

Background

Prior to the 2002 amendments, noted above, the Commission had approved an access code developed by the now defunct, Telecommunications Access Forum (TAF). The TAF was officially dissolved on 31 January 2002. Prior to its dissolution, the TAF requested that the Commission consider making a Telecommunications Access Code under Part XIC of the Act to replace and update the existing TAF code.

Section 152BJ of the Act empowers the Commission to make a Telecommunications Access Code. The Commission continues to have the power to make its own access code, even in the absence of the TAF. In this context, the Commission considered that there were a number of issues that could be included in such a code, including more detailed information about non-price terms and conditions. The Commission, however, concluded that under the current legislation, such a code would, like the TAF code, be voluntary and unlikely to be effective. Accordingly, to date, the Commission has not made a Telecommunications Access Code under s152BJ(1). That said, the Commission retains a power to make a telecommunications code, as distinct from making model terms and conditions.

In April 2002, the Government announced a proposed package of measures in response to the Productivity Commission’s review of telecommunications competition regulation.4 A key component of the package was the requirement for the Commission to produce benchmark terms and conditions for core telecommunications services such as Public Switched Telephone Network (PSTN) interconnect, Local Call Resale (LCR) and Unconditioned Local Loop Services (ULLS). These measures were intended to provide greater certainty and encourage the industry to resolve access issues in a more timely manner, as well as reducing the potential for regulatory gaming.5

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1 Telecommunications Competition Act 2002, No 140, 2002

2 Schedule 2, Part 1 of the Telecommunications Competition Act 2002 inserted a new s152AQB into the Act

3 Trade Practices Act 1974 s152AQB(1)

4 Productivity Commission – “Inquiry into Telecommunications Regulation”, December 2001

5 Department of Communications, Information Technology and the Arts (DCITA), Media release, 24 April 2002, “Telecommunications regime to be made more competitive”, 97/02.

Introduction

On 19 December 2002, the Telecommunications Competition Act 2002 came into effect making certain amendments to the telecommunications industry regulatory regime in Parts XIB and XIC of the Trade Practices Act 1974 (‘TPA’).1 Amongst the package of reforms was a new regulatory requirement concerning the establishment of model terms and conditions relating to access to core telecommunications services.2

Specifically, the new s152AQB requires the Commission to publish a written determination concerning non-binding model price and non-price terms and conditions of access for each of the “core” services.3 This final Determination addresses the non-price aspects of this legislative requirement.

Background

Prior to the 2002 amendments, noted above, the Commission had approved an access code developed by the now defunct, Telecommunications Access Forum (TAF). The TAF was officially dissolved on 31 January 2002. Prior to its dissolution, the TAF requested that the Commission consider making a Telecommunications Access Code under Part XIC of the Act to replace and update the existing TAF code.

Section 152BJ of the Act empowers the Commission to make a Telecommunications Access Code. The Commission continues to have the power to make its own access code, even in the absence of the TAF. In this context, the Commission considered that there were a number of issues that could be included in such a code, including more detailed information about non-price terms and conditions. The Commission, however, concluded that under the current legislation, such a code would, like the TAF code, be voluntary and unlikely to be effective. Accordingly, to date, the Commission has not made a Telecommunications Access Code under s152BJ(1). That said, the Commission retains a power to make a telecommunications code, as distinct from making model terms and conditions.

In April 2002, the Government announced a proposed package of measures in response to the Productivity Commission’s review of telecommunications competition regulation.4 A key component of the package was the requirement for the Commission to produce benchmark terms and conditions for core telecommunications services such as Public Switched Telephone Network (PSTN) interconnect, Local Call Resale (LCR) and Unconditioned Local Loop Services (ULLS). These measures were intended to provide greater certainty and encourage the industry to resolve access issues in a more timely manner, as well as reducing the potential for regulatory gaming.5

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1 Telecommunications Competition Act 2002, No 140, 2002

2 Schedule 2, Part 1 of the Telecommunications Competition Act 2002 inserted a new s152AQB into the Act

3 Trade Practices Act 1974 s152AQB(1)

4 Productivity Commission – “Inquiry into Telecommunications Regulation”, December 2001

5 Department of Communications, Information Technology and the Arts (DCITA), Media release, 24 April 2002, “Telecommunications regime to be made more competitive”, 97/02.

Key Performance Indicators (KPIs) – non-price terms and conditions

A concurrent and related process is the legislative requirement of Telstra to publish information comparing performance in wholesale and specified retail services through key performance indicators (KPIs).6 The new accounting separation requirement is designed to improve transparency in terms of the actual performance of Telstra in supplying services to itself as against its wholesale customers, whereas the aim of model terms and conditions is to assist parties to reach commercial agreement on terms and conditions of access.

While the information gathered as a result of the KPI monitoring exercise will to some extent, also be relevant to the development of model non-price terms and conditions going forward, the KPI requirement was progressed separately through the release of a Commission Discussion Paper in April 2003 and the subsequent formulation of a Record Keeping Rule (RKR) in August 2003.

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6 New s151BUAAA allows the Minister for Communications, under clause 6 of the Act, to make a Ministerial Direction directing the ACCC to make Record-Keeping rules under Part XIB and to publish reports on the information gathered. The proposed Ministerial Direction is currently subject to public consultation.

Legislative Requirements

This section sets out some of the key legislative requirements of the Commission under the Act.

The recently inserted section 152AQB of the Act requires the Commission to make a written determination setting out model terms and conditions relating to access to each core service.7 This written determination must be published by the Commission, including in electronic form.8 The applicable core services are specified in sub-section (1) as follows:

the Domestic Public Switched Telephone Network (PSTN) Originating Access Service (PSTN originating service);
the Domestic Public Switched Telephone Network (PSTN) Terminating Access Service (PSTN terminating service);
the Unconditioned Local Loop Service (ULLS);
the Local Carriage Service (LCS); and
any additional core service specified in regulations by the Minister.

Before making a determination, the Commission must publish a draft of a determination and invite people to make submissions on a draft determination.9 Additionally, the Commission must consult with the Australian Communications Authority (ACA) before making a determination.10 The release of this Determination is intended to fulfil the Commission’s obligations under the TPA.

A determination will remain in force for a period of 5 years in relation to the particular core service, unless sooner revoked.11 Finally, the Commission must have regard to a determination made under s152AQB if it is required to arbitrate an access dispute in relation to a core service covered by a determination.12

What is the aim of this legislative requirement?

Essentially, the model terms and conditions are intended to directly assist parties to reach commercial agreement on terms and conditions of access, or to submit access undertakings, thus providing more timely access for access seekers to core services.

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7 s152AQB(2)

8 s152AQB(7)

9 s152AQB(5)

10 s152AQB(6)

11 s152AQB(8)

12 s152AQB(9)

What is meant by ‘model terms and conditions’?

Generally speaking, the determination of model terms and conditions requires the Commission to form a view about the appropriate terms of supply of certain declared services, which can then be used as a guide or form of benchmark for industry in the negotiation of commercial agreements or in access undertakings.

The Commission has applied the following general principles in formulating the model terms and conditions.

The model terms and conditions should be consistent with relevant legislation and codes. This includes (but is not limited to) the TPA (for instance, s152AR which sets out an access provider’s standard access obligations and 152AYA of the TPA which sets out an ancillary access obligation relating to confidentiality), the Telecommunications Competition Act, the Telecommunications Act 1997 (Cth) and any relevant ACA and ACIF industry codes.

The objective of Part XIC

The requirement to make a determination under s152AQB arises within Part XIC of the TPA. The object of Part XIC is to promote the long-term interests of end-users (LTIE) of carriage services or of services provided by means of carriage services.15 This will partly be achieved through establishing the rights of third parties to gain access to services which are necessary for competitive services to be supplied to end-users, including through the non-price terms and conditions on which access is provided. Accordingly, in making a determination that sets out model non-price terms and conditions, the Commission is seeking to promote the LTIE.

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13 The statutory obligation on the Commission under ss152AQB(9) is for the Commission to have regard to the model terms and conditions.

14 Commonwealth, Telecommunications Competition Bill 2002 Explanatory Memorandum, House of Representatives (2002), at pages 2 and 32

15 s152AB(1)

Reasonableness criteria

Although there is no express requirement for it to do so, the Commission believes the model terms and conditions should represent what would be considered “reasonable” terms and conditions of access.16 The Commission is required to have regard to the reasonableness criteria both in assessing access undertakings and making arbitral determinations.17 It is therefore appropriate to have regard to these same criteria in making model terms and conditions.

As the Commission is required to have regard to the reasonableness criteria in any arbitral determination, having regard to those criteria in the model terms and conditions will better ensure that model terms are indicative of the position the Commission might adopt in an arbitration.

That said, the Commission notes that the model terms and conditions are intended as indicative and non-binding, and therefore any arbitral determination will depend upon the particular circumstances of the dispute. As such, there will remain the potential for an arbitral determination to depart from the model terms and conditions.

In determining whether terms and conditions are reasonable, the following matters must be considered:

whether the terms and conditions promote the LTIE of carriage services or of services supplied by means of carriage services;
the legitimate business interests of the carrier or carriage service provider concerned, and the carrier’s or provider’s investment in facilities used to supply the declared service concerned;
the interests of persons who have rights to use the declared service concerned;
the direct cost of providing access to the declared service concerned;
the operational and technical requirements necessary for the safe and reliable operation of a carriage service, a telecommunications network or a facility; and
the economically efficient operation of a carriage service, a telecommunications network or a facility.18

This does not, by implication, limit the matters under consideration.19

Long-term interests of end-users

The Commission believes that by establishing model terms and conditions that facilitate the manner and timing in which access seekers are able to gain access to and deliver telecommunications services to end-users, the Commission is acting consistently with the LTIE criteria, which are:

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16 Section 152AH contains criteria by which to assess the reasonableness of an access undertaking.

17 s152BV(2)(d) and s152CR

18 s152AH(1)

19s152AH(2)

Commission’s approach to Model non-price terms and conditions

In developing non-price model terms and conditions, the Commission took the view that it first needed to determine the specific matters that should be covered by the Determination.

As previously mentioned, the Explanatory Memorandum supports the view that the Commission does not have to make a determination in respect of each and every term and condition of access. Accordingly, the Commission has adopted a process that allows it to focus on the main issues arising between access providers and access seekers which have been identified by industry participants.

The Commission identified the following areas as key contentious non-price terms and conditions which it decided to examine in detail as part of the process of developing model non-price terms and conditions:

faults / maintenance;
billing and notifications;
service migration;
suspension and termination;
access to information systems;
liability provisions;
creditworthiness;
dispute resolution processes;
confidentiality agreements; and
communications with end-users.

Limiting the areas that model terms and conditions address in detail was seen as an effective and timely strategy for fulfilling the Government’s requirements given the limited timeframes involved. This is also consistent with achieving the underlying objective of providing greater transparency and information to the market place in order to encourage the resolution of disputes through commercial negotiation in those areas which are potentially most contentious.

Telstra Access Agreements

The key contentious issues raised by parties are, for the most part, issues that are generic to all the core services. Generally speaking, terms and conditions of access to these core services are governed by Telstra’s General Access Agreements (GAA)27 and Telstra’s Carriage Service Provider Agreement (CSPA).28 The Commission therefore considered that

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27 The GAA is used in relation to PSTN and ULL services; the CSPA is used in respect of LCS services

28 Subject to any variations arising out of a bilateral agreement between Telstra and the access seeker

Telco-specific vs industry standard

The Commission considered whether it ought to take a “telco-specific” approach to preparing the model terms and conditions, or whether more general commercial considerations would be sufficient. First, it is important to note that the model terms and conditions will be intended for use only in the telecommunications industry. Therefore to some extent they should be “telco-specific”. This would be relevant, for instance, in relation to operational and procedural matters which are “telco-specific” and for which accepted industry-wide practices are in place. However, in relation to a number of the more general commercial provisions in telecommunications wholesale contracts (including, for example, issues such as billing practices, creditworthiness and liability), the Commission considers that it is appropriate to draw on broader commercial experience. The balance between “telco-specific” versus broader commercial considerations will therefore differ from issue to issue.

29 The Commission notes that Telstra are currently in the process of updating its GAA to conform more with the format adopted in the CSPA.

Process for developing the model terms and conditions

The Commission has considered the nature of the perceived problem as identified by interested parties and examined that problem in the light of the current applicable GAA or CSPA clause. The Commission has then decided whether or not there is any merit in the concern identified and how a change to the applicable clause might address or overcome the concern.

Where the issue was considered to warrant further action, the Commission has explained the nature of the problem in Part 2 and then stated what it considers to be the relevant principle to apply. Accordingly, the related clause has been developed to reflect the principle the Commission considers appropriate. In some cases, it has been necessary to develop a clause without reference to any existing clauses since the GAA or CSPA does not currently deal with the issue at hand. On other occasions, a change to the current clause was not deemed necessary and therefore the existing clause has remained unchanged.

As discussed above, the aim of the draft Determination was to gather views from interested parties on whether:

the Commission’s assessment and in-principle decision in relation to the matter at hand was considered appropriate; and
the drafting of the model clause effectively reflected the expressed position.

The views of parties in response to the draft Determination have been a key input into the finalisation of this Determination. Further issues raised in relation to the Commission’s proposed in-principle position are again discussed in Part 2. Part 3 has been updated to reflect any amendments made to the model clauses since the draft Determination.

The Commission has been assisted throughout the process of developing the relevant principles and particularly the draft clauses by Mr Matthew Nicholls, Technology and Communications Lawyer, Melbourne.

As previously mentioned, where an ACIF code deals with a particular issue raised, the Commission has adopted the ACIF code provisions as the model term and condition. In some cases, however, where an improvement to the ACIF code is considered necessary, the Commission has identified the further work that should be progressed within the ACIF to address the matter.

It should be noted that the model clause or ACIF code provisions are intended to apply to all the core services unless indicated otherwise.

Limitations on this process

Where the Commission has not dealt with or considered a particular clause in either of the access agreements, this should not be taken to indicate that the Commission necessarily regards the term or condition dealing with that particular subject matter as adequate or

Further Action

In terms of future conduct, it is essential that the model terms and conditions reflect current market practices. Issues may change and further areas of contention may arise meaning that the Commission’s model terms and conditions may need amendment, revision or supplementation. The Commission, therefore, envisages that a determination will not be static and that the model terms and conditions will likely require further consideration at some point.31 As a consequence, this Determination should not necessarily be viewed as a once-off exhaustive exercise.

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30 Section 15AQB(3) requires that the Commission must take all reasonable steps to ensure that a determination relating to a core service is made within 6 months after the commencement of the section (ie: 19 June 2003).

31 The Commission considers that the instrument may be varied pursuant to the Acts Interpretation Act (1901).

Part 2. Principles – Specific Issues

A. BILLING AND NOTIFICATIONS

Issues raised

A common theme regarding billing and notifications is the claimed level of incorrect billing provided to access seekers, and the use of retrospective billing. It was submitted that delays in notifying access seekers of incorrect billing and the use of retrospective billing have the potential to affect an access seeker’s ability to compete as well as provide billing within ACIF timeframes at the retail level.

Commission’s view

Should an access seeker be required to pay disputed amounts prior to resolution?

The Commission considers it reasonable for a payer to withhold disputed amounts if a dispute is notified prior to the due date for payment of the invoice to which such amounts relate. Conversely, however, the Commission does not consider it unreasonable for a payer to be required to make payment of a disputed amount if a dispute is notified after the due date for payment.

However, a number of further considerations are relevant to this issue. Firstly, the payer must be given a reasonable time within which to identify disputed amounts, particularly considering the sometimes complex nature of wholesale telecommunications invoices. The Commission considers that 20 business days is appropriate. Secondly, the payer must be given sufficient billing information to determine whether there is a basis for disputing an invoice. If insufficient billing information is made available, the payer is not in a position to make an informed decision about whether or not the bill should be disputed. Consequently, there cannot be any expectation that payment should be made prior to a dispute being notified.

Finally, the Commission considers it fair and reasonable that an access seeker have reasonable opportunity in terms of timeframe within which to dispute an invoice.

Should there be specific time frames and rules regarding billing enquiries and disputes?

As a general rule, time frames relating to billing enquiries and disputes should be fair and reasonable. To this end, such time frames should enable each party sufficient (but not excessive) time, such as 20 business days, to initiate a dispute process and for the access provider to respond to the access seeker. Dispute (including appeal) rights should not be unreasonably curtailed; and definite time frames should apply to each party.

In addition, if a dispute resolution process results in one party paying money or refunding money to the other party, such payment or refund should occur within a definite and reasonable time, such as 10 business days.

Responses to draft Determination

The draft model terms on Billing and Notifications was generally well received. However, one party in particular had some fundamental problems, as well as some suggested additions, to the proposed model clauses. Accordingly, the Commission has made a number of revisions to the principles and clauses in Section A of Part 2.

Generally speaking, the above party submitted that this was a key area where the proposed clauses had the potential to adversely impact existing industry arrangements to the detriment of the LTIE. It felt that billing and billing disputes were iterative process driven issues involving high volume of transactions and therefore existing and future ACIF codes and guidelines were the most practical and effective approach rather than through the use of model terms. This party felt that the substantial alteration to existing timeframes might require an overhaul of billing systems and infrastructure, thus impacting on the cost of supplying the core services.

This party also felt that the model terms failed to adequately take account of service based distinctions between resale and interconnection services and were therefore inappropriate.

The party also felt that there had been a significantly reduced timeframes for it and excessive periods for access seekers which was unreasonable and likely to increase the number and frequency of billing disputes contrary to the LTIE and legitimate business interests of the access provider.

The party also argued that the rebate clause in particular (see draft Determination model clause A.29), should be deleted as there was already a sufficient number of incentives on the party to discourage incorrect billing. It was considered economically inefficient and wholly unjustified and likely to be a penalty that was void as it was not a pre-estimate of an access seeker’s loss but a purely arbitrary figure. Further, the one sided nature of the clause was considered to be open to abuse by access seekers.

The party also submitted that while the general limitation of 6 months on backbilling seemed reasonable there was a need for an exception for services which were being billed for the first time and for certain international services where the access provider was dependent on overseas carriers for billing information.

Another party recommended that complex disputes needed longer time frames and therefore, there needed to be a provision to enable the extension of timeframes where the parties agreed, but with consent not to be unreasonably withheld.

It was submitted that where one party has caused a delay in resolution of a dispute, and the other party was prevented from backbilling a customer because of it, then the first party should be required to compensate the other party for the amount the other party was prevented from recovering from the customer because of the delay.

B. CREDITWORTHINESS

C. LIABILITY (RISK ALLOCATION) PROVISIONS

Commission’s views

The Commission considers that, as a general rule, liability provisions should apply to both parties and should place risk with the party which has the ability to control the risk. Such control measures include, for example, an ability directly to control the actions of a party’s

D. GENERAL DISPUTE RESOLUTION PROCEDURES

E. CONFIDENTIALITY PROVISIONS

Response to draft Determination

The main issues raised by submitters involved the audit provisions concerning the access provider’s use of an access seeker’s confidential information. One party contended that the proposed audit provisions were unnecessary as well as unworkable for the reasons that:

they required the visibility of all access seeker information which in turn required multilateral consent for disclosure of the information in auditing process;
neither an access seeker or auditor would be competent to judge whether there was

prima facie evidence of a misuse of confidential information;

audit provisions are likely to lead to an increase in disputes which could be used by access seekers in preparation for litigation where for example, an access seeker was experiencing financial difficulties; and
the threshold for triggering the audit provisions was not reasonably stringent.

In addition, other submitters queried whether the provision of quarterly information was adequate for all types of audits and whether they should be provided more regularly, and whether it would be possible for numerous access seekers to share the costs (and resulting information) of an engaging an independent auditor.

F. COMMUNICATIONS WITH END-USERS

G. SERVICE MIGRATION

Responses to draft determination

One party submitted that there should be no need to give notice for relocations where the access seeker is barely affected or not at all. At any rate, these service migration issues should be covered in facilities access agreements.

Another party was concerned that the notice period for major relocations was too short, and as such submitted that there should be an extension of the proposed period.

H. SUSPENSION AND TERMINATION

FAULTS AND MAINTENANCE

Timeframes

A number of submitters suggested that there is a need for more specific timeframes for fault rectification.

Is there a need for more specific timeframes for fault rectification?

ACIF C513 Customer and Network Fault Management Industry Code and ACIF G572 Unconditioned Local Loop Service Fault Management Industry Guideline address this issue. For example ACIF C513, Appendix D use the CSG timeframes for fault rectification and this standard is reinforced by ACIF G572 clause 7.1.15. The Commission also notes that clause 9.2(e) of the guideline provides for the establishment of rectification timeframes by bilateral agreement.

In relation to where network faults are reported from the service provider which have not emanated from the end-user of the service provider, the Commission notes the following ACIF clauses.

Clause 6.1.6 of ACIF C513 provides:

"When a C/CSP reasonably believes that the source of a fault is within the Telecommunications Network owned or operated by another C/CSP, then the C/CSP must immediately advise the other C/CSP of the fault details as set in Clause 6.5.3…"

Service level standards

Should service level standards be non-discriminatory?

The Commission notes that clause 6.1.9 of ACIF C513: Customer and Network Fault Management provides that “all customer faults must be repaired in a non-discriminatory manner”. The Commission considers that this code provision adequately addresses the issue of non-discrimination in relation to service level standards and therefore the Commission adopts this provision and all provisions relating thereto as part of its model non-price terms and conditions.

Obligation to report network faults

The obligation of C/CSPs to inform faults in another carrier’s network was a further issue raised by submitters.

Should there be an obligation on C/CSPs to inform faults in another carrier’s network?

The Commission has examined this issue and concluded that there are various obligations within ACIF C513 and ACIF G572 on C/CSPs to provide immediate advice to the other party of fault status, repair progress and estimated restoration time. For example, ACIF C513 clause 6.1.6 provides that one CSP must immediately advise the other CSP of the fault details in its network.

The Commission, therefore, considers that this issue is adequately addressed by the above ACIF code provision. Accordingly, the Commission adopts this provision and all provisions relating thereto as part of its model non-price terms and conditions.

Fault clearance codes

The absence of fault clearance codes in Telstra’s access agreements was another issue raised by submitters.

Fault reporting processes

A further issue raised by submitters was the need for parties to agree to fault reporting procedures.

Should fault reporting processes be agreed between the parties?

The Commission notes ACIF G572, clause 9 in relation to ULL fault management and interference problems, which provides that:

“whilst parties may enter into bilateral agreements in respect of matters covered by the guideline, such agreements must not diminish requirements contained in this guideline”.

The guideline sets minimum requirements regarding fault reporting processes. The Commission is of the view that parties should be free to bilaterally negotiate fault reporting processes. If processes cannot be agreed, then it is important that the process determined at least meets the minimum requirements as set out in the guideline.

The Commission considers that this issue is adequately dealt with by the guideline. Accordingly, the Commission adopts the principle and standards regarding fault reporting processes and all provisions relating thereto as part of its model non-price terms and conditions.

(ULLS only)

Commission’s views on response to draft Determination

The Commission notes that the SAOs provide a non-discrimination standard in respect of faults and maintenance. Section 152AR(3)(c) relevantly provides that an access provider must take all reasonable steps to ensure that the access seeker receives, in relation to the service supplied to the access seeker, fault detection, handling and rectification of a technical and operational quality and timing that is equivalent to that which the access provider provides to itself.

In respect of interconnection, s152AR(5)(e) relevantly requires an access provider to ensure the access seeker receives, in relation to the interconnection, fault detection, handling and rectification of a technical and operational quality and timing that is equivalent to that which the access provider provides to itself.

The Commission believes that there is quite clearly a legislative and ACIF code obligation upon access providers to provide faults rectification and maintenance to the same service level as that which it provides to itself. The spirit and intent of the legislation is concerned with achieving non-discriminatory outcomes as between an access provider and an access seeker, as opposed to the provision of non-discriminatory levels of service by an access provider between different access seekers. The Commission believes that such non- discriminatory behaviour is necessary to facilitate competition in contestable downstream markets and that this interpretation accords with the overall objective of promoting the LTIE as stipulated under Part XIC of the Act.

Accordingly, the Commission adopts these SAO requirements as part of its model terms and conditions for faults and maintenance standards.

(Also refer to the Commission's discussion in the next section on Ordering and Provisioning)

In relation to fault symptom and fault clearance codes, the Commission notes that ACIF C513:2003 appears to exclude fault management issues pertaining to the provision of LCS services. Although ACIF C513:2003 does not specifically apply to the LCS, the Commission adopts as model terms, the principles and requirements in relation to fault symptoms and fault clearance codes in respect of the LCS. Accordingly, whatever code provisions apply in respect of fault symptoms and clearance codes to the interconnection services, they also apply (to the extent relevant) to the LCS by virtue of being adopted as model terms.

In relation to progressive fault management reporting, the Commission understands that apart from an obligation to meet CSG timeframes and informing an end-user that a fault has been rectified, an access provider does not provide a fault management update and progress

ORDERING AND PROVISIONING

The Commission notes that ACIF C569:2001 Unconditional Local Loop Service – Ordering, Provisioning and Customer Transfer outlines the agreed industry processes for ordering and provisioning ULLS. For example clause 11.6 details the process for service qualification as part of ordering and provisioning of ULLS. The Commission considers that if there is to be a different service qualification process based on vacant ULL requests, that change in process should be developed through the ACIF and the relevant code.

(ULLS only)

Should there be a requirement to provide information on lead-in cable in the service qualification process?

The Commission notes, that the service qualification process under clause 11.6, excludes information about the lead-in cable. The lack of information in relation to the existence or otherwise of a lead-in cable in the service qualification process was an issue raised by one submitter. The Commission believes that this information, where available, should form part of the service qualification as it would facilitate the delivery of ULLS to end-users if a service provider has prior knowledge of the existence or not of a lead-in cable. Accordingly, the Commission recommends that ACIF review the applicable ACIF code to incorporate information on lead-in cable as part of the service qualification requirements.

(ULLS only)

Responses to draft Determination

Service provision and the need for appropriate service level standards was again commented upon, in response to the draft Determination, as being the key issue for access seekers, not only in respect of ordering and provisioning, but across several areas of operation.

In its draft Determination, the Commission stated that it would be concerned if access agreements did not ensure that ordering and provisioning arrangements were provided in a non-discriminatory manner. To this end, the Commission in respect of ordering and provisioning, adopted as part of its model terms, clause 8.1 of ACIF C569:2001 Unconditioned Local Loop Service- Ordering, Provisioning and Customer Transfer, which requires access providers to treat ordering and provisioning of ULLS in a non-discriminatory manner.

Access seekers submitted, however, that despite the above statement, the Commission failed to act on this point. Some access seekers submitted that in respect of faults and maintenance and ordering and provisioning, Telstra’s access arrangements have the potential to discriminate against access seekers and that Telstra avoids this provision by arguing that it does not provide the core services to itself. Thus it was argued that it was essential that the model terms and conditions include a clause to address this issue as a host of matters relating to fault rectification and ordering and provisioning flowed from the effect of a non- discrimination clause.

Commission’s views on responses to draft Determination

ACCESS TO INFORMATION SYSTEMS

Issued raised

Access to information systems was found to be relevant to a number of areas of concern of access seekers.

Should there be a common information system interface?

Submitters raised a number of issues in relation to the issue of access to information systems. These submissions identified the need for an online information system which provides immediate access through real-time transactions. It was submitted that an online system would increase the competitiveness and efficiency of access seekers and thereby streamline the delivery of services to end-users by improving timeframes and other operational matters in relation to a range of matters including:

ordering and provisioning (for all wholesale products);
fault maintenance;
service qualifications; and
service availability.

The call for a common information system interface arises due to the belief among access seekers that the current disparate industry information systems are not meeting the needs of the telecommunications industry. It was suggested by submitters that a common real-time interface between wholesale parties was essential to removing discriminatory treatment and required for improving process associated with ordering and provisioning, fault maintenance and service qualification and availability.

General Comment

As a general comment in respect of the application of ACIF codes to access agreements, the Commission would expect that access agreements reflect all applicable ACIF code obligations. The only time that an ACIF code standard should not be followed is where there has been bilateral agreement to adopt some other standard. The practical implication of this principle is that access agreements should constantly be updated to take account of any applicable changes to or new ACIF code provisions.

As noted above, where a matter is dealt with by an ACIF code, the Commission’s model terms and conditions will adopt that standard. As a consequence, access agreements that fail to incorporate ACIF codes standards will fail to meet the Commission’s model non-price terms and conditions.

Part 3. Draft Model Clauses

MODEL NON-PRICE TERMS AND CONDITIONS

Important Notice: The model clauses herein are intended to be indicative only and to be used as a guide. Their application and suitability may differ from case to case and therefore persons wishing to use or rely on the model clauses should obtain independent professional advice. The Commission disclaims any responsibility in relation to any loss or damage arising as a result of the use of or reliance on the model clauses.

B. CREDITWORTHINESS AND SECURITY

B.1 Unless otherwise agreed by the access provider, the access seeker must (at the access seeker’s sole cost and expense) provide to the access provider and maintain for the term of this agreement, on terms and conditions reasonably required by the access provider and subject to clause B.2, the Security (as shall be determined having regard to clause

B.3 and as may be varied pursuant to clause B.4) in respect of amounts owing by the access seeker to the access provider under this agreement.

F. COMMUNICATIONS WITH END USERS

F.1 (a) The access provider may communicate and deal with the access seeker’s end- users only in accordance with this clause F.1 and as otherwise permitted by law.

(b) Subject to clause F.1(c), the access provider may communicate and deal with the access seeker’s end-users:

(i) in relation to goods and services which the access provider currently supplies or previously supplied to the end-user;

(ii) as members of the general public or a part of the general public or members of a particular class of recipients of carriage or other services;

I. DEFINITIONS

“ACDC” means the Australian Commercial Disputes Centre Limited; “Annual Liability Cap” has the meaning given in clause C.5; “Applicable Percentage” means:

(a) during the first and second months of the Fee Waiver Period, 50%;

(b) during the third and fourth month of the Fee Waiver Period, 75%; and

(c) in the fifth and subsequent months of the Fee Waiver Period, 100%;

“Billing Dispute” means a dispute relating to a Charge or an invoice issued by the access provider;

“Billing Dispute Notice” means a notice given pursuant to clause A.11;

“Billing Dispute Procedures” means the procedures set out in clauses A.11 to A.29;

“Business Day” means any day other than Saturday or Sunday or a day which is a gazetted public holiday in the place concerned;

“Carriage Service” has the same meaning given to that term in section 7 of the

Telecommunications Act 1997 (Cth);

“Charge” means a charge for the supply of a Core Service;

“Confidential Information” means all information, know-how, ideas, concepts, technology, manufacturing processes, industrial, marketing and commercial knowledge of a confidential nature (whether in tangible or intangible form and whether coming into existence before or after the commencement of this agreement) relating to or developed in connection with or in support of the business of a party (the “first mentioned party”) but does not include: