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COMPETITION AND CONSUMER ACT 2010 - SECT 152CBAA

Fixed principles terms and conditions

             (1)  A special access undertaking may provide that a term or condition specified in the undertaking is a fixed principles term or condition for a period that, under the undertaking, is expressed to be the notional fixed period for the fixed principles term or condition.

             (2)  If the undertaking does so, the undertaking may also provide that one or more specified circumstances are qualifying circumstances in relation to the fixed principles term or condition.

             (3)  The notional fixed period for a fixed principles term or condition must:

                     (a)  begin when the undertaking comes into operation; and

                     (b)  end:

                              (i)  at the expiry time of the undertaking; or

                             (ii)  if an earlier time is ascertained in accordance with the undertaking--at that earlier time; or

                            (iii)  if a later time is ascertained in accordance with the undertaking--at that later time.

             (4)  If:

                     (a)  a fixed principles term or condition is specified in a special access undertaking; and

                     (b)  the undertaking ceases to be in operation before the end of the notional fixed period for the fixed principles term or condition;

the fixed principles term or condition ceases to be in operation when the undertaking ceases to be in operation.

Note:          Even though the fixed principles term or condition ceases to be in operation when the undertaking ceases to be in operation, subsection (5) ensures that a fresh undertaking can include an identical fixed principles term or condition.

Consequences--acceptance of other undertaking

             (5)  If:

                     (a)  a special access undertaking (the original undertaking ) given by a person in relation to a particular service contained a fixed principles term or condition (the original fixed principles term or condition ); and

                     (b)  the original undertaking was accepted by the Commission; and

                     (c)  during the notional fixed period for the original fixed principles term or condition, the person gives the Commission another special access undertaking (the other undertaking ) in relation to the service; and

                     (d)  the other undertaking contains a fixed principles term or condition (the corresponding fixed principles term or condition ) that is identical to the original fixed principles term or condition; and

                     (e)  the notional fixed period for the corresponding fixed principles term or condition ends at or before the end of the notional fixed period for the original fixed principles term or condition; and

                      (f)  if there are qualifying circumstances in relation to the original fixed principles term or condition:

                              (i)  there are qualifying circumstances in relation to the corresponding fixed principles term or condition; and

                             (ii)  those qualifying circumstances are identical to the qualifying circumstances in relation to the original fixed principles term or condition; and

                     (g)  if there are qualifying circumstances in relation to the original fixed principles term or condition--none of those circumstances exist;

then:

                     (h)  the Commission must not reject the other undertaking for a reason that concerns:

                              (i)  the corresponding fixed principles term or condition; or

                             (ii)  the notional fixed period for the corresponding fixed principles term or condition; or

                            (iii)  if there are qualifying circumstances in relation to the corresponding fixed principles term or condition--the specification of those circumstances; and

                      (i)  paragraphs 152CBD(2)(a), (b), (c) and (ca) do not apply to:

                              (i)  the corresponding fixed principles term or condition; or

                             (ii)  the notional fixed period for the corresponding fixed principles term or condition; or

                            (iii)  if there are qualifying circumstances in relation to the corresponding fixed principles term or condition--those circumstances; and

                      (j)  if the corresponding fixed principles term or condition is the only term or condition contained in the other undertaking--paragraph 152CBD(2)(d) does not apply to the other undertaking; and

                     (k)  if the corresponding fixed principles term or condition is not the only term or condition contained in the other undertaking--subparagraph 152CBD(2)(d)(ii) does not require the Commission to consider any submissions to the extent to which they relate to:

                              (i)  the corresponding fixed principles term or condition; or

                             (ii)  the notional fixed period for the corresponding fixed principles term or condition; or

                            (iii)  if there are qualifying circumstances in relation to the corresponding fixed principles term or condition--those circumstances.

Consequences--variation of undertaking

             (6)  If:

                     (a)  a special access undertaking given by a person in relation to a particular service contains a fixed principles term or condition (the original fixed principles term or condition ); and

                     (b)  the undertaking has been accepted by the Commission; and

                     (c)  during the notional fixed period for the original fixed principles term or condition, the person gives the Commission a variation of the undertaking; and

                     (d)  the varied undertaking contains a fixed principles term or condition (the corresponding fixed principles term or condition ) that is identical to the original fixed principles term or condition; and

                     (e)  the notional fixed period for the corresponding fixed principles term or condition is identical to the notional fixed period for the original fixed principles term or condition; and

                      (f)  if there are qualifying circumstances in relation to the original fixed principles term or condition:

                              (i)  there are qualifying circumstances in relation to the corresponding fixed principles term or condition; and

                             (ii)  those qualifying circumstances are identical to the qualifying circumstances in relation to the original fixed principles term or condition; and

                     (g)  if there are qualifying circumstances in relation to the original fixed principles term or condition--none of those circumstances exist;

the Commission must not reject the variation for a reason that concerns:

                     (h)  the corresponding fixed principles term or condition; or

                      (i)  the notional fixed period for the corresponding fixed principles term or condition; or

                      (j)  if there are qualifying circumstances in relation to the corresponding fixed principles term or condition--the specification of those circumstances.



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