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COMPETITION AND CONSUMER ACT 2010 - SECT 152BCB

Restrictions on access determinations

             (1)  The Commission must not make an access determination that would have any of the following effects:

                     (a)  preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service to be able to meet the service provider's reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR or 152AXB;

                     (b)  preventing a carrier or carriage service provider from obtaining a sufficient amount of the service to be able to meet the carrier's or provider's reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR or 152AXB;

                     (c)  preventing a person from obtaining, by the exercise of a pre-determination right, a sufficient level of access to the declared service to be able to meet the person's actual requirements;

                     (d)  depriving any person of a protected contractual right;

                     (e)  resulting in an access seeker becoming the owner (or one of the owners) of any part of a facility without the consent of the owner of the facility;

                      (f)  requiring a person (other than an access seeker) to bear an unreasonable amount of the costs of:

                              (i)  extending or enhancing the capability of a facility; or

                             (ii)  maintaining extensions to or enhancements of the capability of a facility;

                     (g)  requiring a carrier or carriage service provider to provide an access seeker with access to a declared service if there are reasonable grounds to believe that:

                              (i)  the access seeker would fail, to a material extent, to comply with the terms and conditions on which the carrier or provider provides, or is reasonably likely to provide, that access; or

                             (ii)  the access seeker would fail, in connection with that access, to protect the integrity of a telecommunications network or to protect the safety of individuals working on, or using services supplied by means of, a telecommunications network or a facility.

             (2)  Examples of grounds for believing as mentioned in subparagraph (1)(g)(i) include:

                     (a)  evidence that the access seeker is not creditworthy; and

                     (b)  repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the carrier or carriage service provider).

             (3)  The Commission must not make an access determination that is inconsistent with any of the standard access obligations that are, or will be, applicable to a carrier or carriage service provider.

          (3A)  If a final migration plan is in force, the Commission must not make an access determination that would have the effect of requiring Telstra to engage in conduct in connection with matters covered by the final migration plan.

          (3B)  The Commission must not make an access determination that would have the effect of:

                     (a)  requiring an NBN corporation to engage in conduct that is inconsistent with conduct authorised under subsection 151DA(2) or (3) for the purposes of subsection 51(1); or

                     (b)  preventing an NBN corporation from giving a refusal that is authorised under subsection 151DA(3) for the purposes of subsection 51(1).

          (3C)  The Commission must not make an access determination that would have the effect of preventing an NBN corporation from engaging in conduct that is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities.

          (3D)  In subsection (3C), eligible services , uniform national pricing and utilities have the same meaning as in section 151DA.

             (4)  If the Commission makes an access determination that has the effect of depriving a person (the second person ) of a pre-determination right to require the carrier or provider to provide access to the declared service to the second person, the determination must also require the access seeker:

                     (a)  to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and

                     (b)  to reimburse the carrier or provider and the Commonwealth for any compensation that the carrier or provider or the Commonwealth agrees, or is required by a court order, to pay to the second person as compensation for the deprivation.

          (4A)  The Commission must not make an access determination that:

                     (a)  relates to any or all of the category B standard access obligations applicable to an NBN corporation; and

                     (b)  has the effect (whether direct or indirect) of discriminating between access seekers.

Note:          For explanatory material, see section 152CJH.

          (4B)  Subsection (4A) does not prevent discrimination against an access seeker if the Commission has reasonable grounds to believe that the access seeker would fail, to a material extent, to comply with the terms and conditions on which the NBN corporation complies, or on which the NBN corporation is reasonably likely to comply, with the relevant obligation.

          (4C)  Examples of grounds for believing as mentioned in subsection (4B) include:

                     (a)  evidence that the access seeker is not creditworthy; and

                     (b)  repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the NBN corporation).

          (4G)  The Commission must not make an access determination that:

                     (a)  relates to a declared service that is:

                              (i)  a Layer 2 bitstream service; and

                             (ii)  supplied using a designated superfast telecommunications network; and

                            (iii)  supplied by a carrier (other than an NBN corporation) or a carriage service provider (other than an NBN corporation); and

                     (b)  has the effect (whether direct or indirect) of discriminating between access seekers.

Note:          For explanatory material, see section 152CJH.

          (4H)  Subsection (4G) does not prevent discrimination against an access seeker if the Commission has reasonable grounds to believe that the access seeker would fail, to a material extent, to comply with the terms and conditions on which the carrier or carriage service provider complies, or on which the carrier or carriage service provider is reasonably likely to comply, with the relevant obligation.

           (4J)  Examples of grounds for believing as mentioned in subsection (4H) include:

                     (a)  evidence that the access seeker is not creditworthy; and

                     (b)  repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the carrier or carriage service provider).

             (5)  An access determination is of no effect to the extent to which it contravenes subsection (1), (3), (3A), (3B), (3C), (4A) or (4G).

             (6)  In this section:

"pre-determination right " means a right under a contract that was in force:

                     (a)  if the access determination is one of a series of 2 or more successive access determinations--immediately before the first access determination came into force; or

                     (b)  otherwise--immediately before the access determination came into force.

"protected contractual right " means a right under a contract that was in force at the beginning of 13 September 1996.



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