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NBN Accused Of Provider Discrimination By ACCC

NBN Co has been given a formal warning by the ACCC for discriminating between retail service providers (RSPs) for the supply of upgraded NBN infrastructure to business customers.

The ACCC has also accepted a court-enforceable undertaking from NBN Co, which includes a commitment by the service provider to take measure to ensure such conduct is not repeated.

NBN Co is prohibited from discriminating between RSPs in the supply of regulated wholesale services and related activities.

The ACCC are satisfied that from at least January 2018, NBN Co offered materially different commercial terms to different RSPs as it upgraded NBN infrastructure to support high-speed, business-grade services.

NBN Co also provided one RSP with indicative pricing information for its new Enterprise Ethernet service months before it gave the same information to other RSPs.

Following the investigation, NBN Co admitted it did not have appropriate processes in place to ensure it was complying with its transparency and non-discrimination obligations.

“The ACCC has concluded that NBN Co failed to comply with its non-discrimination obligations on a number of fronts,” ACCC chair Rod Sims said.

“These legal obligations were enacted to ensure that NBN Co does not distort competition in the market for retail NBN services, such as by favouring larger RSPs.”

In this case, the ACCC has not identified evidence that the conduct resulted in specific harm or competitive detriment before it came to light.

“Market feedback suggests that NBN Co’s entry into the wholesale enterprise market has increased competition, particularly in areas where Telstra is the only other fixed-line infrastructure provider,” Sims added.

“Despite this, the ACCC is satisfied that NBN Co’s conduct amounted to a serious breach of its non-discrimination obligations.”

“The undertaking we have accepted from NBN Co is intended to ensure that all access seekers can compete on an equal footing going forward.”

As part of the court-enforceable undertaking, NBN Co has committed to offering consistent contract terms to RSPs for the supply of upgraded NBN infrastructure.

NBN Co has also committed to giving the same information to its customers at the same time.

It will put in place extensive compliance arrangements, including an annual independent audit of its compliance with its non-discrimination obligations.

“We will be closely monitoring NBN Co’s conduct under the enforceable undertaking and reserve our right to take further action if we are not satisfied,” Sims concludes.

For further information, see Formal Warning to NBN Co, and NBN Co Limited’s undertaking for transparency and non-discrimination obligations.

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