143AClass exemptions

#### 143A Class exemptions Determination providing for exemption (1) The ACCC may, by legislative instrument, determine that, if: (a) a person is included in a specified class of persons; and (b) the person has, by written notice given to the ACCC, elected to be bound by the determination; and (c) the person has not, by written notice given to the ACCC, cancelled the election; and (d) in a case where the person is not a member of an associated group—the number of residential customers to whom the person supplies fixed‑line carriage services does not exceed: (i) 2,000; or (ii) if a higher number (not exceeding 12,000) is specified in the regulations—that higher number; and (e) in a case where the person is a member of an associated group—the total number of residential customers to whom the members of the group supply fixed‑line carriage services does not exceed: (i) 2,000; or (ii) if a higher number (not exceeding 12,000) is specified in the regulations—that higher number; the person is exempt from section 142C. > Note: For associated group, see subsection (10) of this section. (2) The ACCC may, by legislative instrument, determine that, if: (a) a person is included in a specified class of persons; and (b) the person has, by written notice given to the ACCC, elected to be bound by the determination; and (c) the person has not, by written notice given to the ACCC, cancelled the election; and (d) in a case where the person is not a member of an associated group—the number of residential customers to whom the person supplies fixed‑line carriage services does not exceed: (i) 2,000; or (ii) if a higher number (not exceeding 12,000) is specified in the regulations—that higher number; and (e) in a case where the person is a member of an associated group—the total number of residential customers to whom the members of the group supply fixed‑line carriage services does not exceed: (i) 2,000; or (ii) if a higher number (not exceeding 12,000) is specified in the regulations—that higher number; the person is exempt from section 143. > Note: For associated group, see subsection (10) of this section. (3) A determination under subsection (1) or (2) is subject to the following conditions and limitations: (a) the person must ensure that a designated carriage service is available for supply to wholesale customers, or prospective wholesale customers, of the person; (b) the person must not discriminate between the person’s wholesale customers, or the person’s prospective wholesale customers, in relation to the supply of designated carriage services; (c) the person must not discriminate in favour of itself in relation to the supply of designated carriage services; (d) the person must not, in carrying on any of the following activities, discriminate between the person’s wholesale customers or the person’s prospective wholesale customers: (i) developing a new eligible service; (ii) enhancing an eligible service; (iii) extending or enhancing the capability of a facility or telecommunications network by means of which an eligible service is, or is to be, supplied; (iv) planning for a facility or telecommunications network by means of which an eligible service is, or is to be, supplied; (v) an activity that is preparatory to the supply of an eligible service; (vi) an activity that is ancillary or incidental to the supply of an eligible service; (vii) giving information to service providers about any of the above activities; (e) the person must not discriminate in favour of itself in relation to the carrying on of any of the following activities: (i) developing a new eligible service; (ii) enhancing an eligible service; (iii) extending or enhancing the capability of a facility or telecommunications network by means of which an eligible service is, or is to be, supplied; (iv) planning for a facility or telecommunications network by means of which an eligible service is, or is to be, supplied; (v) an activity that is preparatory to the supply of an eligible service; (vi) an activity that is ancillary or incidental to the supply of an eligible service; (vii) giving information to service providers about any of the above activities; (f) such other conditions and limitations as are specified in the determination. > Note 1: For compliance with conditions and limitations, see section 143B. > Note 2: For judicial enforcement of conditions and limitations, see section 143C. (4) The rule in paragraph (3)(b) does not prevent discrimination against a wholesale customer, or prospective wholesale customer, if the person has reasonable grounds to believe that the wholesale customer or prospective wholesale customer would fail, to a material extent, to comply with the terms and conditions on which the person supplies designated carriage services. (5) Examples of grounds for believing as mentioned in subsection (4) include: (a) evidence that the wholesale customer or prospective wholesale customer is not creditworthy; and (b) repeated failures by the wholesale customer or prospective wholesale customer to comply with the terms and conditions on which the person supplied eligible services (whether or not using the line). (6) A determination under subsection (1) or (2) must not specify a condition or limitation of a kind specified in a determination under subsection (7). (7) The Minister may, by legislative instrument, determine one or more kinds of condition or limitation for the purposes of subsection (6). Criteria for making determination (8) In deciding whether to make a determination under subsection (1) or (2), the ACCC must have regard to: (a) whether the determination promotes the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services; and (b) the matters (if any) specified in a determination under subsection (9); and (c) such other matters (if any) as the ACCC considers relevant. (9) The Minister may, by legislative instrument, determine one or more matters for the purposes of paragraph (8)(b). Associated group (10) For the purposes of this section, if: (a) a person is in a position to exercise control of: (i) a local access line; or (ii) a telecommunications network; and (b) the person has one or more associates; then: (c) the person is taken to belong to an associated group; and (d) the associated group consists of the person and those associates.