46Deemed agreements with existing carriers—terms and conditions relating to standard access obligations

#### 46 Deemed agreements with existing carriers—terms and conditions relating to standard access obligations (1) If: (a) at a time (the determination time) on or after 1 July 1997, a determination made by the ACCC under Division 8 of Part XIC of the Trade Practices Act 1974 takes effect; and (b) the determination specifies the terms and conditions on which a carrier is to comply with a standard access obligation applicable to the carrier; and (c) the determination was made as a result of a dispute notified to the ACCC under subsection 152CM(1) of the Trade Practices Act 1974 before 1 January 1998 by the carrier or by an access seeker; and (d) the determination was not made by way of the variation or replacement of a previous determination; and (e) the standard access obligation relates to the supply of a declared service specified in an instrument that the ACCC is taken to have made because of subsection 39(10); and (f) the carrier is 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; and (g) the access seeker was the supplier of an eligible service (within the meaning of section 18 of the Telecommunications Act 1991) immediately before 19 February 1997; and (h) the declared service was supplied by the carrier to the access seeker, in fulfilment of the standard access obligation, at any time during the period (the interim period): (i) beginning on 1 July 1997; and (ii) ending at the determination time; then, except for the purposes of Division 8 of Part XIC of the Trade Practices Act 1974: (i) the carrier and the access seeker are taken to have entered into an agreement about the terms and conditions on which the carrier is to comply with the standard access obligation in relation to the supply of the declared service; and (j) those terms and conditions are taken to be identical to the terms and conditions specified in the determination; and (k) the carrier and the access seeker are taken to have entered into that agreement immediately before the earliest time during the interim period when the declared service was supplied as mentioned in paragraph (h); and (l) that agreement is taken to expire at the determination time. (2) Subsection (1) has effect despite any agreement actually entered into by the carrier and the access seeker. (3) A reference in subsection (1) to a declared service does not include a reference to a service of a kind referred to in subsection 39(5). (4) If, as a result of the operation of subsection (1), any money paid by the access seeker to the carrier has been overpaid, the carrier is liable to refund the overpayment. (5) An amount payable under subsection (4) is a debt due to the access seeker and may be recovered by action in a court of competent jurisdiction. (6) Subsection 152DO(7) of the Trade Practices Act 1974 has effect as if this section were a provision of Part XIC of the Trade Practices Act 1974. (7) In this section: > ACCC means the Australian Competition and Consumer Commission. > access seeker has the same meaning as in Part XIC of the Trade Practices Act 1974. > carrier has the same meaning as in the Telecommunications Act 1997. > declared service has the same meaning as in Part XIC of the Trade Practices Act 1974. > standard access obligation has the same meaning as in Part XIC of the Trade Practices Act 1974.