41Certain connection obligations to continue in force

#### 41 Certain connection obligations to continue in force (1) If: (a) immediately before 17 March 1997, an eligible service was connected to a telecommunications network operated by an existing carrier; and (b) the connection was in fulfilment of the carrier’s obligations under section 234 of the Telecommunications Act 1991; and (c) during the transitional period, a service provider who wishes to supply an eligible service (the eligible carriage service) gives the existing carrier a request to connect the eligible carriage service to the network; and (d) the network will need to be used in the supply of the eligible carriage service; and (e) at the time of the request, the existing carrier is a carrier (within the meaning of the Telecommunications Act 1997); the carrier must connect the eligible carriage service. (2) The carrier must comply with subsection (1) on such terms and conditions as are specified in a written determination made by the ACCC. (3) The first determination under subsection (2) must be made before 1 July 1997. (4) The terms and conditions specified in a determination under subsection (2) must be reasonable. (5) Section 152AH of the Trade Practices Act 1974 applies for the purposes of this section in a corresponding way to the way in which it applies for the purposes of Part XIC of that Act. (6) The carrier does not contravene its obligation under subsection (1) to connect a service to a network if the connection is delayed: (a) for a period that: (i) is reasonable in the circumstances; and (ii) is not substantially longer than the delay normally experienced for connection of a service of that type, and in that locality, to the network; or (b) because a connection of the eligible carriage service is not technically feasible; or (c) for reasons beyond the carrier’s control. (7) This section does not impose an obligation on the carrier if there are reasonable grounds to believe that the service provider would fail, to a material extent, to comply with the terms and conditions on which the carrier complies, or on which the carrier is reasonably likely to comply, with that obligation. (8) Examples of grounds for believing as mentioned in subsection (7) include: (a) evidence that the service provider is not creditworthy; and (b) repeated failures by the service provider to comply with the terms and conditions on which the same or a similar connection has been provided (whether or not by the carrier). (9) This section does not impose an obligation on a carrier after the end of the transitional period. (10) Part 1 of Schedule 1 to the Telecommunications Act 1997 has effect as if subsection (1) of this section were a section of the Telecommunications Act 1997. (11) A reference in this section to connecting a service to a network includes a reference to connecting to the network a facility used in connection with the supply of the service. (12) In this section, unless the contrary intention appears: > ACCC means the Australian Competition and Consumer Commission. > carriage service has the same meaning as in the Telecommunications Act 1997. > carrier has the same meaning as in the Telecommunications Act 1997. > connect means: (a) the act of connection; or (b) if the connection is already established—continue the connection in existence. > facility has the same meaning as in the Telecommunications Act 1997. > eligible service has the same meaning as in section 18 of the Telecommunications Act 1991, as in force before 1 July 1997. > existing carrier means a person who held a general telecommunications licence, or a public mobile licence, that was in force under the Telecommunications Act 1991 immediately before 1 July 1997. > service provider has the same meaning as in the Telecommunications Act 1997. > telecommunications network has the same meaning as in the Telecommunications Act 1997. > transitional period means the period: (a) beginning on 1 July 1997; and (b) ending at the end of 31 December 1997 or such later date as the ACCC determines in writing.