Seven Network Limited (No 4) [2004] ACompT 11

AUSTRALIAN COMPETITION TRIBUNAL

Seven Network Limited (No 4) [2004] ACompT 11 TRADE PRACTICES – telecommunications access regime – digital subscription television services – review of anticipatory exemption orders – exemptions from standard access provisions granted to carrier and carriage service provider by ACCC pursuant to s 152ATA of the Trade Practices Act 1974 (Cth) – undertakings pursuant to s 87B of the Act – terms of access capable of falling within the ambit of s 152CBA – whether exemption orders should be made under power conferred by s 152ATA – digitisation of network – whether digitisation would have occurred in same or similar timeframe regardless of exemption orders – whether it is the exemption orders or the terms of undertakings that must promote the long term interests of end‑users – whether an exemption order is in the long term interests of end‑users. EVIDENCE – admissibility – documents – Tribunal limited to review of documents before the Commission. Trade Practices Act 1974 (Cth): ss 87B, 152AB, 152AH, 152AR, 152AT, 152ATA, 152AW, 152CBA and 152CBD R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, not followed Downey v Transwaste Pty Ltd (1991) 172 CLR 167, referred to Re Sydney Airports Corporation Ltd (2000) 156 FLR 10, followed Re Queensland Co‑operative Milling Association Ltd and Defiance Holding Ltd (1976) 25 FLR 169, followed Re QIW Ltd (1995) 132 ALR 225, followed FOXTEL Management Pty Ltd v Seven Cable Television Pty Ltd and Others [2000] 102 FCR 555, referred to File No 10 of 2003 RE: APPLICATION FOR REVIEW OF THE DECISION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 12 DECEMBER 2003 ON THE SECTION 152ATA DIGITAL PAY TV ANTICIPATORY INDIVIDUAL EXEMPTION APPLICATIONS LODGED BY TELSTRA CORPORATION AND TELSTRA MULTIMEDIA BY: SEVEN NETWORK LIMITED (ACN 052 816 789) and C7 PTY LIMITED (ACN 082 901 442) File No 11 of 2003 RE: APPLICATION FOR REVIEW OF THE DECISION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 12 DECEMBER 2003 ON THE SECTION 152ATA DIGITAL PAY TV ANTICIPATORY INDIVIDUAL EXEMPTION APPLICATION LODGED BY FOXTEL MANAGEMENT PTY LIMITED (FOR AND ON BEHALF OF THE FOXTEL PARTNERSHIP AND FOXTEL CABLE TELEVISION) BY: SEVEN NETWORK LIMITED (ACN 052 816 789) and C7 PTY LIMITED (ACN 082 901 442) JUSTICE GOLDBERG (President), MR G F LATTA and MR R F SHOGREN 23 DECEMBER 2004 MELBOURNE