143Supply of eligible services to be on wholesale basis—networks in existence before the designated commencement date etc.

#### 143 Supply of eligible services to be on wholesale basis—networks in existence before the designated commencement date etc. Scope (1) This section applies to a local access line if: (a) the local access line is part of the infrastructure of a telecommunications network in Australia; and (b) the network is used, or proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and (c) the network is not the national broadband network; and (d) either: (i) the network came into existence on or after 1 January 2011, but before the designated commencement date; or (ii) the network was altered or upgraded on or after 1 January 2011, but before the designated commencement date, and, as a result of the alteration or upgrade, the network became capable of being used to supply a superfast carriage service to residential customers, or prospective residential customers, in Australia. > Note 1: See also section 156 (deemed networks). > Note 2: For exemptions, see sections 143A to 151. Use of network (2) If a person (the first person): (a) is in a position to exercise control of the network; or (b) is an associate of a person who is in a position to exercise control of the network; the first person must not use the line, either alone or jointly with one or more other persons, to supply an eligible service unless the service is supplied to: (c) a carrier; or (d) a service provider. > Note: For when a person is in a position to exercise control of a network, see section 155. (3) Subsection (2) does not apply to the use of the line if a functional separation undertaking given by the first person is in force, unless: (a) the ACCC has given a notice under section 151W revoking the undertaking; and (b) the revocation has not taken effect; and (c) the line came into existence after the notice was given. > Note 1: A functional separation undertaking relates to the supply of eligible services using a local access line, irrespective of when the line came into existence. > Note 2: See also section 142B. (4) Subsection (2) does not apply to the use of the line if: (a) the Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 is in force; and (b) the line is part of the infrastructure of a designated telecommunications network (within the meaning of that declaration); and (c) a carrier owns or operates the network; and (d) as a result of the application of section 5 of that declaration to the network, the carrier licence held by the carrier is subject to the conditions set out in subsections 6(5), (5A), (6), (7) and (8) of that declaration. Ancillary contraventions (5) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (2); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (2); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2); or (d) conspire with others to effect a contravention of subsection (2). Civil penalty provisions (6) Subsections (2) and (5) are civil penalty provisions. > Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.