185Exceptions

##### 185 Exceptions (1) Neither of sections 183 and 184 apply if, at the time of the discrimination, there is in force a decision by AUSTEL under section 185A that the discrimination, or discrimination of that kind, should be permitted. (2) Subject to subsection (2A), neither of sections 183 and 184 apply if the carrier committing the discrimination has applied to AUSTEL for a decision under section 185A that the discrimination, or discrimination of that kind, should be permitted. (2A) Subsection (2) does not apply, and is taken never to have applied, if AUSTEL notifies the carrier in writing that it refuses to make a decision under section 185A that the discrimination, or discrimination of that kind, should be permitted. (2B) Section 183 does not apply if: (a) the discrimination consists of: (i) supplying a telecommunications service to a customer on terms and conditions that differ from the terms and conditions on which services of that particular kind are supplied to other customers; or (ii) charging a customer for that service in a way that differs from the way in which other customers are charged for services of that particular kind; and (b) each of the services is supplied under a legitimate charging option (whether or not each of the services is supplied under the same legitimate charging option). (2C) For the purposes of paragraph (2B)(b), a telecommunications service is supplied by a carrier under a legitimate charging option if, at the time it is supplied, supply of the carrier’s services of that particular kind on the same terms and conditions as the terms and conditions on which that service is supplied, is available to: (a) all, or all but an insubstantial minority of, customers to whom supply of those services is technically feasible; or (b) all, or all but an insubstantial minority of, business customers to whom supply of those services is technically feasible; or (c) all, or all but an insubstantial minority of, residential customers to whom supply of those services is technically feasible; or (d) all, or all but an insubstantial minority of, customers: (i) who are included in a class of persons that AUSTEL determines in writing to be a class of persons to whom this paragraph applies; and (ii) to whom supply of those services is technically feasible. (2D) Without limiting what is or is not technically feasible for the purposes of subsection (2C), supply of a telecommunications service of a particular kind to customers is, for those purposes, not technically feasible if, at the time in question, supply is not feasible using the facilities available to the carrier at that time for supplying such a service to those customers. (2E) In deciding whether to make a determination under subparagraph (2C)(d)(i), AUSTEL must have regard to: (a) the objects of this Act; and (b) AUSTEL’s general functions set out in section 37. (2F) Determinations under subparagraph (2C)(d)(i) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901. (3) In a proceeding for a contravention of section 183 or 184, the onus of establishing that that section or subsection does not apply because of subsection (1), (2) or (2B) of this section is on the party asserting that. (4) In this section: > customers, in relation to telecommunications services of a particular kind, means the persons who acquire or propose to acquire, or who might reasonably be expected to acquire or propose to acquire, telecommunications services of that kind. > terms and conditions, in relation to supply of a telecommunications service, includes terms and conditions about charges for that service.