238AAUSTEL may disallow anti-competitive tariff

##### 238A AUSTEL may disallow anti-competitive tariff (1) This section applies in relation to a tariff if: (a) a carrier is in a position to dominate a market for a particular kind of telecommunications service; and (b) that kind of telecommunications service is included in a tariff of the carrier. (2) If, in AUSTEL’s opinion, the operation or continued operation of the tariff would be anti-competitive in any market for any telecommunications service, AUSTEL must give the carrier written notice stating that AUSTEL is disallowing all or any of the provisions of the tariff. (3) The notice must set out why AUSTEL is of the opinion that the operation or continued operation of those provisions of the tariff would be anti-competitive in that market. (4) AUSTEL’s power to disallow provisions of a tariff under this section may be exercised: (a) at any time during which the tariff is in force; and (b) if the tariff is a BCS tariff—at any time after a carrier gives AUSTEL a copy of the tariff or a variation of the tariff and before the tariff comes into force. (5) To avoid doubt, AUSTEL’s powers of disallowance under this section may be exercised in relation to provisions of a BCS tariff whether or not complying with section 197 in relation to the tariff will result in a contravention of section 183 or 184. (6) Subject to subsection (11), the disallowance takes effect on the day specified in the notice for that purpose. (7) The day so specified must not be a day occurring more than 5 days after the day on which the notice was given. (8) Subject to subsection (10), AUSTEL may state in the notice that the disallowance does not apply: (a) for specified purposes; or (b) in relation to persons of a specified kind to whom the carrier supplies the service; or (c) for specified purposes in relation to persons of a specified kind to whom the carrier supplies the service. (9) AUSTEL may revoke or vary such a statement at any time. (10) The statement (including such a statement as varied under subsection (9)) must not relate to supply of the service to persons to whom the carrier was not supplying the service at the time the disallowance takes effect. (11) If the statement so specifies, the tariff, or the disallowed provisions of the tariff, continue to apply as specified in the statement: (a) for the period specified in the statement for the purposes of that continued application; or (b) if no such period is specified—for so long as the tariff remains in force. (12) Notices, and revocations or variations of statements in notices, are to be made public in the way AUSTEL thinks appropriate. (13) A carrier must not demand or receive payment of a charge for the supply of a telecommunications service to a person if: (a) the charge is worked out in accordance with a tariff, or provisions of a tariff, that have been disallowed under this section; and (b) the whole or a part of the charge is attributable to a period occurring after the tariff, or the provisions of the tariff, were disallowed. (14) For the purposes of this section, the operation or continued operation of a tariff is taken to be anti-competitive in a market if and only if: (a) the operation or continued operation of the tariff, or provisions of the tariff; or (b) the operation or continued operation of the tariff, or provisions of the tariff, in conjunction with other tariffs or commercial arrangements; has, or is likely to have, the effect of materially and adversely affecting the development and/or maintenance of commercially sustainable competition in that market.