Reasonableness criteriaReasonableness criteria

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)