AUSTRALIAN COMPETITION TRIBUNAL Application by Chime Communications Pty Ltd (No 3) [2009] ACompT 4 TRADE PRACTICES – telecommunications access regime – market share condition imposed on exemption orders – meaning of "competition" and "market power" Trade Practices Act 1974 (Cth) Pt XIC Application by Chime Communications Pty Ltd (No 2) [2009] ACompT 2 Queensland Co Operative Milling Association Ltd, Re (1976) 8 ALR 481 Baldwin, R and Cave, M Understanding Regulation – Theory, Strategy, and Practice (1999) Cave, M 'Encouraging infrastructure competition via the ladder of investment' (2006) 30 Telecommunications Policy 223 Schmalensee, R 'Ease of Entry: Has the Concept Been Applied Too Readily?', in H First, E Fox and R Pitofsky (eds), Revitalizing Antitrust in Its Second Century 338 APPLICATION UNDER SECTION 152AV OF THE TRADE PRACTICES ACT 1974 (THE ACT) FOR A REVIEW OF AN EXEMPTION ORDER DECISION (INDIVIDUAL EXEMPTION ORDERS 1-4 OF 2008) MADE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION (COMMISSION) IN RELATION TO TELSTRA CORPORATION LIMITED PURSUANT TO SECTION 152AT at (3)(a) OF THE ACT BY CHIME COMMUNICATIONS PTY LTD File No 2 of 2008 justice finkelstein (president) r davey PROFESSOR ROUND 24 august 2009 MELBOURNE IN THE AUSTRALIAN COMPETITION TRIBUNAL File No 2 of 2008 rE: APPLICATION UNDER SECTION 152AV OF THE TRADE PRACTICES ACT 1974 (THE ACT) FOR A REVIEW OF AN EXEMPTION ORDER DECISION (INDIVIDUAL EXEMPTION ORDERS 1-4 OF 2008) MADE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION (COMMISSION) IN RELATION TO TELSTRA CORPORATION LIMITED PURSUANT TO SECTION 152AT(3)(a) OF THE ACT: BY CHIME COMMUNICATIONS PTY LTD (CHIME) Applicant TRIBUNAL: JUSTICE FINKELSTEIN (PRESIDENT) R DAVEY PROFESSOR D ROUND DATE OF ORDER: 24 august 2009 WHERE MADE: MELBOURNE THE TRIBUNAL ORDERS THAT: 1. Title This Order may be cited as the Tribunal's 2009 LCS Individual Exemption Order. 2. Nature of Order 2.1 This order operates to vary Individual Exemption Orders No 1 and No 3 of 2008 made by the Commission on or about 22 August 2008 in "Telstra's local carriage service and wholesale line rental exemption applications – final decision and class exemption". 2.2 A copy of this Order, marked up to show each variation to the Commission's orders, is on the Tribunal's file and available for inspection. 3. Commencement and Expiry 3.1 This Order comes into effect on the date this Order is made. 3.2 This Order will expire: (a) five years after the date of the making of this Order; or (b) upon the revocation of either the LCS Declaration or the ULLS Declaration, whichever first occurs. 4. Interpretation Unless the contrary intention appears, in this Order a word or a phrase has the meaning given to it in the Act, the Telecommunications Act 1997 (Cth) or the LCS Declaration. Act means the Trade Practices Act 1974 (Cth). Aggregate Market Share means in respect of each Attachment A ESA the ULLS-based competitors' aggregated share of SIOs, expressed as a percentage, using the following formula: (ULLS + ULLS Spare Capacity + WLR SIOs) ÷ (Total SIOs) Where: ULLS in relation to an Attachment A ESA means the number of "Total ULLS" reported in compliance with the CAN RKR. ULLS Spare Capacityin relation to an Attachment A ESA means a number to be ascertained in accordance with this Order. WLR SIOs in relation to an Attachment A ESA means a number to be ascertained in accordance with this Order. Total SIOs in relation to an Attachment A ESA means the sum of "SIO POTS Only", "SIO (POTS + xDSL)", "Telstra xDSL no POTS" and "Total ULLS" as reported in compliance with the CAN RKR. If there is a change to the CAN RKR so that Telstra is no longer required to provide any of the data required to calculate Aggregate Market Share, then Telstra must, within 28 Business days after each Ascertainment Date, provide that data to the Commission by way of a statutory declaration sworn by its proper officer. Ascertainment Date means the six month anniversary of the Practical Commencement Date and each six months thereafter. Where the Ascertainment Date would otherwise fall on a Saturday, on a Sunday or on a day which is a national public holiday in Australia, the Ascertainment Date is the next Business day. Attachment A ESA means an ESA which is listed in Attachment A to this Order. Bundled Fixed Voice and Broadband Service means a fixed voice service provided together with a broadband service to an end-user both of which are supplied by means of Telstra's metallic-based public switched telephone network. Business day means a day that is not a Saturday, a Sunday or a national public holiday in Australia. CAN RKR means the Telstra Customer Access Network Record Keeping and Reporting Rules as in force on the date of the making of this Order. Capped Exchange means an Exchange Building which Telstra has determined is not available for access by an access seeker for any reason, including an Exchange Building listed by Telstra in the TEBA Capped List as 'MDF capped', 'Racks capped' or 'Racks and MDF capped'. Commencement Date means the date on which this Order comes into effect in accordance with clause 3.1. Constructively Capped Exchange means an Exchange Building, other than a Capped Exchange, in respect of which the Commission has determined that Telstra requires as a condition of access that the access seeker undertake works at its own cost which are out-of-the-ordinary works. Deemed Capacity means, with respect to an Attachment A ESA, a number to be calculated in accordance with the following formula: 0.75 x (ULLS ÷ Number of ULLS-based competitors) Where: ULLS in relation to that Attachment A ESA means the number of "Total ULLS" reported in compliance with the most recent CAN RKR. Number of ULLS-based competitors means the number of ULLS-based competitors in that Attachment A ESA. If there is a change to the CAN RKR so that Telstra is no longer required to provide any of the data required to calculate Deemed Capacity, then Telstra must, within 28 Business days after each Ascertainment Date, provide that data to the Commission by way of a statutory declaration sworn by its proper officer. DSLAM means a digital subscriber line access multiplexer, a multi-service access node or other equipment capable of supplying a service via the ULLS. DSLAM Capacity means, with respect to an ULLS-based competitor, its aggregate number of Spare Ports in an Attachment A ESA. end-user means an end-user of carriage services or other services supplied by means of carriage services, not a supplier of those services. Exchange Service Area (ESA) has the meaning given to the expression "Exchange Serving Area" by the Australian Communications Industry Forum Limited Code, ACIF C559:2006, Part 1. Exchange Building means a telecommunications exchange building owned, operated or controlled by Telstra. Exemption means the exemption specified in clause 5 of this Order. Exemption ESA means an Attachment A ESA with: (a) three or more ULLS-based competitors; (b) an Aggregate Market Share equal to or greater than 30%; and (c) ULLS Spare Capacity equal to or greater than 40% of the aggregate number of WLR SIOs in that ESA. Subject to clauses 6.3, 6.5 and 6.6, once an ESA meets the requirements of an Exemption ESA, it will remain an Exemption ESA whether or not it subsequently meets the requirements of an Exemption ESA. Exemption ESA List means the list of Exemption ESAs published on the Commission's website pursuant to clause 6.1 of this Order. First Queued Access Seeker means, in respect of an Attachment A ESA, the Queued Access Seeker that lodged its PSR for an Exchange Building within the ESA first in respect of that ESA. Joint Completion Inspection (JCI) means an inspection of an Exchange Building by representatives of Telstra and an access seeker conducted following the completion of construction works in that Exchange Building by the access seeker. LCS means the Local Carriage Service declared by the Commission under section 152AL(3) of the Act pursuant to the LCS Declaration. LCS Declaration means the declaration made by the Commission under section 152AL(3) of the Act in respect of the LCS with effect from 1 August 2006 and published in the Commonwealth of Australia Gazette No. GN 31 of 9 August 2006, as varied or extended. LSS means the Line Sharing Service declared by the Commission under section 152AL(3) of the Act pursuant to the LSS Declaration. LSS Declaration means the declaration made by the Commission under section 152AL(3) of the Act in respect of the LSS, the extension of which became effective on 29 October 2007 and was published in the Commonwealth of Australia Gazette No. S214 of 29 October 2007, as varied or extended. MDF means Main Distribution Frame. Minimum Characteristics means the following characteristics of a Prescribed LSS to ULLS Migration Process: (a) any period in which an end-user is unable to receive a broadband service by means of the copper pair servicing the end-user's Standard Telephone Service by reason of that migration is no longer than three (3) hours or such other period determined by the Commission in an access arbitration; and (b) end-user involvement in the process (including without limitation the making of a telephone call or correspondence by the end-user to Telstra) is not required. Potentially Capped Exchange means a Telstra Exchange Building which Telstra has determined may be unavailable for access by an access seeker for any reason including an Exchange Building listed in the TEBA Capped List as 'Potential'. Practical Commencement Date means the first Reporting Date following the Commencement Date. Preliminary Study Request (PSR) means a request by an access seeker to Telstra for access to an Exchange Building. Prescribed LSS to ULLS Migration Process means one or other of the following: (a) a process established by Telstra for the migration by Telstra, at the request of an access seeker, of an end-user from the LSS to the ULLS in an Attachment A ESA, the terms of which are agreed with the access seeker; or (b) a process developed by Telstra for the migration by Telstra, at the request of an access seeker, of end-users from LSS to ULLS in Attachment A ESAs the terms of which are approved to the reasonable satisfaction of the Commission in accordance with the following procedure: Telstra must notify the Commission, if it develops a LSS to ULLS migration process, such notice to: (i) be in writing; (ii) be addressed to the Group General Manager, Communications Group (or such other person as notified by the Commission); (iii) include certification by an officer of Telstra that its LSS to ULLS migration process satisfies the Minimum Characteristics; (iv) detail each aspect of the LSS to ULLS migration process (including without limitation details of how the LSS to ULLS migration will be engineered, timeframes within which the LSS to ULLS migration will take place and details of any administrative processes to be undertaken in conjunction with the LSS to ULLS migration); (v) be in a form appropriate for publication by the Commission on its website; and (vi) not contain any confidential information; or (c) a process established by Telstra for the migration by Telstra, at the request of an access seeker, of an end-user from the LSS to the ULLS in an Attachment A ESA, the terms of which are determined by the Commission (subject to all rights of review and appeal being exhausted) in an access arbitration under Part XIC of the Act, provided that: (i) the reasonable legal costs of any access seeker who participates in the arbitration process are paid by Telstra; and (ii) the LSS to ULLS migration process satisfies the Minimum Characteristics. Publishing Date means a date three months after the Ascertainment Date. Where the Publishing Date would otherwise fall on a Saturday, on a Sunday or on a day which is a national public holiday in Australia, the Publishing Date is the next Business day. Queued Access Seeker means, in respect of an Attachment A ESA, an access seeker, including a First Queued Access Seeker, who before the Practical Commencement Date submitted a PSR in respect of an Exchange Building within the ESA that: (a) is under consideration by Telstra; or (b) has not been rejected by Telstra; or (c) has not been withdrawn by the access seeker; and (d) has not passed a JCI in relation to the PSR. Reporting Date means the last day of each calendar quarter, i.e. 31 March, 30 June, 30 September, and 31 December. SIO means service in operation. Spare Ports means the ports actually installed on a DSLAM that are not in use but are capable of providing a service via the ULLS. Standard Telephone Service has the meaning given by section 6 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth). TEBA Capped List means the document published by Telstra that lists each Exchange Building that Telstra regards as a Capped Exchange or a Potentially Capped Exchange. Telstra means Telstra Corporation Limited (ACN 051 775 556). ULLS means the Unconditioned Local Loop Service declared by the Commission under section 152AL(3) of the Act pursuant to the ULLS Declaration. ULLS-based competitor means an access seeker using the ULLS in an Attachment A ESA to supply a service to an end-user in the ESA. For the avoidance of doubt, Telstra is not an access seeker. ULLS Declaration means the declaration made by the Commission under section 152AL(3) of the Act in respect of the ULLS with effect from 1 August 2006 and published in the Commonwealth of Australia Gazette No. GN 31 of 9 August 2006, as varied or extended. ULLS Spare Capacity means, in respect of an Attachment A ESA that has not been listed on an Exemption ESA List, a number equal to the aggregate DSLAM Capacity of ULLS-based competitors in each Attachment A ESA, as at the Ascertainment Date, determined in accordance with the following procedure: (a) if within 28 Business days after each Ascertainment Date, an ULLS-based competitor gives to the Commission a statutory declaration sworn by its proper officer which verifies the following information, as at the relevant Ascertainment Date, in the format specified in Attachment B to this Order, in respect of every Attachment A ESA that has not been listed on an Exemption ESA List and in which it has a DSLAM installed: (i) the number of DSLAMs installed in each such ESA; and (ii) its DSLAM Capacity for each such ESA, its DSLAM Capacity will be as stated in the statutory declaration; and (b) if an ULLS-based competitor does not give to the Commission a statutory declaration in accordance with, and within the time set out in, preceding clause (a), the ULLS-based competitor's DSLAM Capacity for each Attachment A ESA in which it has installed a DSLAM will be the Deemed Capacity. WLR means the Line Rental Service (also known as Wholesale Line Rental) declared by the Commission under section 152AL(3) of the Act pursuant to the WLR Declaration. WLR Declaration means the declaration made by the Commission under section 152AL(3) of the Act in respect of the WLR with effect from 1 August 2006 and published in the Commonwealth of Australia Gazette No. GN 31 of 9 August 2006, as varied or extended. WLR SIOs in relation to an Attachment A ESA means the number of the ULLS-based competitors' WLR services in operation in that Attachment A ESA which must be reported by Telstra to the Commission, in the format specified in Attachment C and verified by a statutory declaration sworn by its proper officer, which attests to the accuracy and completeness of that information, within 28 Business days after each Ascertainment Date. 5. Exemption Subject to the conditions and limitations specified in clause 6, Telstra is exempt from any standard access obligation in respect of the supply of the LCS within an Exemption ESA. 6. Conditions and Limitations 6.1 The Exemption does not have effect with respect to an ESA until the Commission: (a) makes the necessary calculations to determine which ESAs are Exemption ESAs as at each Ascertainment Date; and (b) publishes on its website a list of those Exemption ESAs by the following Publishing Date. 6.2 The Exemption does not have effect with respect to an ESA until 6 months after the Publishing Date by which the Commission is to publish the Exemption ESA List on which that ESA first appears. 6.3 The Exemption does not have effect with respect to the supply by Telstra of the LCS to a Queued Access Seeker in an Exemption ESA. 6.4 The Exemption is subject to the condition that Telstra is required to provide to the Commission within three Business days of Telstra making a determination that an Exchange Building within an Attachment A ESA is a Capped Exchange or Potentially Capped Exchange, written notice of its determination which notice shall: (a) specify the Attachment A ESA, the Exchange Building and whether it has become a Capped Exchange or Potentially Capped Exchange and the date on which it became such an exchange; (b) provide an explanation of why it made the determination; (c) be in a form appropriate for publication by the Commission on its website; and (d) not contain any confidential information. 6.5 The Exemption does not have effect within an Exemption ESA from the date on which an Exchange Building within the Exemption ESA first becomes a Capped Exchange, Potentially Capped Exchange or a Constructively Capped Exchange. 6.6 The Exemption does not have effect within an Exemption ESA from the date on which Telstra ceases to supply the ULLS in the ESA whether to itself or to another person. For the purposes of this limitation, Telstra is deemed to have ceased to supply the ULLS if it ceases to be an access provider of the ULLS in the ESA. 6.7 The Exemption does not have effect with respect to the supply by Telstra of the LCS to an access seeker under an agreement which is in force as at the Practical Commencement Date for so long as that agreement remains in force. 6.8 The Exemption does not have effect in relation to, and only to, the supply by Telstra of the LCS to an access seeker in respect of an end-user who, immediately prior to the Practical Commencement Date, was supplied with a Bundled Fixed Voice and Broadband Service by the access seeker using the LSS, the WLR service and the LCS supplied by Telstra until the date that a Prescribed LSS to ULLS Migration Process is established. 6.9 In so far as the Exemption has effect as a result of the application of clause 6.8 of this Order in relation to an end-user supplied with a Bundled Fixed Voice and Broadband Service by an access seeker using the LSS, the WLR service and the LCS supplied by Telstra, the Exemption is subject to the condition that Telstra complies with the Prescribed LSS to ULLS Migration Process established for that access seeker. 7. Reporting Format Where applicable, information that is provided to the Commission under this Order must be provided in the reporting format specified in Attachments B or C. ATTACHMENT A ESA NAME ESA CODE STATE Acacia Ridge AARE QLD Avoca Beach ABCH NSW Albany Creek ABCK QLD Albion ABON QLD Ascot ACOT QLD Albury ALBY NSW Alexandra Hills ALXH QLD Aspley APLY QLD Applecross APPX WA Armadale ARMD WA Ascot ASCT VIC Ashfield ASHF NSW Ashmore ASHM QLD Ascot ASOT WA Attadale ATTA WA Avalon Beach AVAL NSW Balaclava BALC VIC Balgowlah BALG NSW Balmain BALM NSW Bankstown BANK NSW Bateman BATA WA Baulkham Hills BAUL NSW Bayswater BAYR VIC Burns BBCH WA Bundaberg BBEG QLD Beechboro BCHS WA Broadmeadows BDWS VIC Beenleigh BEEL QLD Belgrave BELG VIC Belmont BELM VIC Belmont BELT NSW Bendigo BEND VIC Brighton BGON VIC Brooklyn BKLN VIC Blackwood BKWD SA Blacktown BLAC NSW Blakehurst BLAK NSW Blackburn BLBN VIC Belconnen BLCN ACT Balcatta BLCT WA Ballajura BLJA WA Boolaroo BLRO NSW Bulimba BMBA QLD Bundall BNDL QLD Bondi BOND NSW Botany BOTA NSW Box Hill BOXL VIC Ballarat BRAT VIC Brighton BRIH SA Brunswick BRUK VIC Bassendean BSDN WA Bathurst BTST TAS Burwood BURD NSW Burleigh Heads BURL QLD Caboolture CABO QLD Campsie CAMP NSW Cannington CANN WA Carlingford CARL NSW Carramar CARR NSW Castle Hill CAST NSW Caulfield CAUL VIC Coburg CBRG VIC Campbelltown CBTN NSW Coffs Harbour CFSH NSW Chatswood CHAT NSW Chermside CHDE QLD Charlestown CHLS NSW Chapel Hill CHPL QLD Clayton CLAY VIC Cleveland CLVL QLD Coromandel Valley CLVY SA Camberwell CMLL VIC Canning Vale CNVL WA Concord CONC NSW Coogee COOG NSW Corio CORI VIC Capalaba CPBA QLD Camp Hill CPHL QLD Coorparoo CPRO QLD Craigieburn CRBN VIC Canterbury CRBY VIC Crace CRCF ACT Cardiff CRDF NSW Cremorne CREM NSW Currambine CRMS WA Croydon CROH VIC Cronulla CRON NSW Cairns CRSX QLD Croydon CRYD SA Chelsea CSEA VIC Cheltenham CTAM VIC Cottesloe CTOE WA Carlton CTON VIC Civic CVIC ACT Collingwood CWOD VIC City Beach CYTB WA Davey DAEY TAS Dandenong DAND VIC Dandenong North DANN VIC Doubleview DBLV WA Dee Why DEEW NSW Deakin DKIN ACT Doncaster East DNCT VIC Doncaster DONC VIC Darra DRRA QLD Drummoyne DRUM NSW Darwin DRWN NT Dural DURA NSW East EAST NSW Edgecliff EDGE NSW Edwardstown EDWN SA Elsternwick ELSK VIC Eltham ELTM VIC Eight Mile Plains EMPS QLD Endeavour Hills ENDS VIC Engadine ENGA NSW Everton Park ENPK QLD Epping EPPG VIC Epping EPPI NSW Edensor Park ERPK NSW Erskine Park ESPK NSW Eastwood EWOO NSW Elizabeth EZBH SA Ferny Hills FHLS QLD Five Dock FIVE NSW Fremantle FMTL WA Frenchs Forest FREN NSW Forrestfield FRFD WA Frankston FRTN VIC Footscray FSRY VIC Flemington FTON VIC Greensborough GBRH VIC Geelong GEEM VIC Girrawheen GIRR WA Glebe GLEB NSW Glenelg GLLG SA Golden Grove GNGE SA Glenroy GNRY VIC Gosnells GOSN WA Gepps Cross GPCS SA Granville GRAN NSW Greenmount GRMT WA Gosford GSFD NSW Glenunga GUGA SA Gulliver GULL QLD Hamilton HAMN NSW Hamersley HAMS WA Harbord HARB NSW Hawthorn HAWN VIC Heidelberg HDBG VIC Highett HGTT VIC Hilton HILN WA Henley Beach HNLY SA Holsworthy HOLS NSW Homebush HOME NSW Hornsby HORN NSW Hampstead HPSD SA Hartwell HTLL VIC Hunters Hill HUHL NSW Hurstville HURS NSW Inala IALA QLD Ingleburn INGL NSW Ipswich IPSW QLD Joondalup JDLP WA Jandakot JKOT WA Jamboree Heights JREE QLD Jandakot South JTSX WA Karingal KALG VIC Kambah KBAH ACT Kewdale KEDL WA Kellyville KELL NSW Kelmscott KELM WA Kensington KENS NSW Kew KEWE VIC Kangaroo Flat KGRO VIC Killara KILL NSW Kingsgrove KING NSW Kallangur KLGR QLD Kogarah KOGA NSW Kingsley KSLY WA Kooyong KYNG VIC Lakemba LAKE NSW Lane Cove LANE NSW Lavington LAVN NSW Lutwyche LCHE QLD Landsdale LDLE WA Lesmurdie LESM WA Lidcombe LIDC NSW Lindfield LIND NSW Lismore LISM NSW Liverpool LIVE NSW Loganholme LNHE QLD Lanyon LNYN ACT Lonsdale LSDE SA Lyndhurst LYNH VIC Maddington MADD WA Maitland MAIT NSW Malvern MALV VIC Manly MANL NSW Maroubra MARO NSW Mascot MASC NSW Matraville MATR NSW Mayfield MAYF NSW Maylands MAYM WA Mitchelton MCHN QLD Modbury MDBY SA Midland MDLD WA Maida Vale MDLE WA Medina MDNA WA Menai MENA NSW Mount Gravatt MGAT QLD Mount Hawthorn MHAW WA Mildura MILD VIC Miller MILL NSW Minto MINT NSW Miranda MIRA NSW Mitcham MITM VIC Mackay MKAY QLD Melba MLBA ACT Morley MLEY WA Moreland MLND VIC Mordialloc MLOC VIC Mullaloo MLOO WA Mindarie MNDE WA Manuka MNKA ACT Manning MNNG WA Monash MNSH ACT Moolap MOLP VIC Mona Vale MONA NSW Mosman MOSM NSW Merrimac MRAC QLD Mount Eliza MTEA VIC Mawson MWSN ACT Maroochydore MYDE QLD North Adelaide NALE SA Narre Warren NAWN VIC Northbridge NBRI NSW Northcote NCOE VIC Nundah NDAH QLD Nudgee NDGE QLD Nedlands NDLN WA Nerang NERG QLD North Essendon NESS VIC Newtown NEWT NSW North Geelong NGLG VIC New Lambton NLTN NSW North Melbourne NMEL VIC Newmarket NMKT QLD Noosa Heads NOOS QLD North Parramatta NPAR NSW Newport NPRT VIC Narangba NRBA QLD Norwood NRWD SA North Ryde NRYD NSW North Sydney NSYD NSW New Farm NWFM QLD Oakleigh OAKL VIC Orange ORGF NSW Ormond ORMD VIC Parramatta PARR NSW Paddington PDTN QLD Peakhurst PEAK NSW Pendle Hill PEND NSW Pennant Hills PENN NSW Petersham PETE NSW Petrie PETR QLD Port Kembla PKEM NSW Port Melbourne PMEL VIC Palmyra PMYA WA Penrith PNTH NSW Paradise PRDS SA Prospect PROT SA Preston PRTN VIC Port Adelaide PTAD SA Pymble PYMB NSW Quinns Rocks QINS WA Quakers Hill QUAK NSW Ramsgate RAMS NSW Randwick RAND NSW Robina RBNA QLD Richmond RCMD VIC Redcliffe REDC QLD Redfern REDF NSW Reynella RELA SA Revesby REVE NSW Riverton RIVT WA Rockingham RKHM WA Rockdale ROCK NSW Rooty Hill ROOT NSW Rose Bay ROSE NSW Reservoir RSVR VIC Rothwell RTWL QLD Ringwood RWOD VIC Rydalmere RYDA NSW Ryde RYDE NSW Salisbury SALA SA St Albans SALB VIC Scarborough SCBH WA Scullin SCLN ACT Scoresby SCOY VIC Seaford SEAF VIC Seaford SEFD SA Sefton SEFT NSW Semaphore SEMC SA Seven Hills SEVE NSW Shalvey SHAL NSW Shepparton SHPN VIC Silverwater SILV NSW Slacks Creek SLAC QLD South Melbourne SMEL VIC South Morang SMRN VIC Sandringham SNDM VIC South Oakleigh SOAK VIC Southport SOPT QLD South Brisbane SOTH QLD Springvale SPLE VIC Strathpine SPNE QLD Sebastopol SPOL VIC Spearwood SPRD WA South Perth SPTH WA Saratoga SRTA NSW Sherwood SRWD QLD Salisbury SSBY QLD South Strathfield SSTR NSW Stirling STIC SA St John STJN TAS St Kilda STKA VIC St Leonards STLE NSW St Marys STMA NSW St Marys STMF SA St Peters STPE SA Subiaco SUBT WA Surfers Paradise SURF QLD Sutherland SUTH NSW Sunnybank SYBK QLD South Yarra SYRA VIC Tamworth TAMH NSW Tingalpa TGPA QLD The Gap THGP QLD Thomastown THTN VIC Tullamarine TMNE VIC Thornbury TNBY VIC Tarneit TNIT VIC Townsville TNSF QLD Toowoomba TOBF QLD Toorak TRAK VIC Toronto TRTO NSW Tuart Hill TUTT WA Toowong TWOG QLD Tally Ho TYHO VIC Undercliffe UNDE NSW Unley UNLY SA Vaucluse VAUC NSW Victoria Park VICP WA Valley VLLY QLD Wacol WACL QLD Wagga Wagga WAGA NSW Wahroonga WAHR NSW Wanneroo WANO WA Waverley WAVE NSW Woodville WDVL SA Wendouree WEND VIC Wellington Point WEPN QLD West Adelaide WESA SA Wetherill Park WETH NSW Whyalla Jenkins WHJS SA Wheelers Hill WHLL VIC Willoughby WILL NSW Windsor WIRC VIC Wollongong WLGG NSW Wembley WMBY WA Woolloongabba WOBB QLD Wolfe WOLF NSW Woy Woy WOYY NSW Warilla WRLA NSW Wantirna WRNA VIC Waterford WTFD QLD Wynnum WYNM QLD Yeronga YRGA QLD Zillmere ZMRE QLD ATTACHMENT B - SPARE CAPACITY REPORTING INFORMATION 1 Information provided by an ULLS-based competitor under paragraph (a) of the ULLS Spare Capacity definition in clause 4 of this Order must: (a) be current as at the relevant Ascertainment Date; (b) be provided to the Commission within 28 business days after the relevant Ascertainment Date; (c) be prepared and submitted in Microsoft Excel format using the template at Table 1: Spare Capacity Reporting Template; (d) be provided to the Commission on CD-ROM, either: (i) by post: to the attention of: Group General Manager Communications Group ACCC PO Box 520 Melbourne 3001 Victoria; or (ii) by hand delivery: to the attention of: Group General Manager Communications Group ACCC 360 Elizabeth Street Melbourne. and be accompanied by the original of a statutory declaration, made under the Statutory Declarations Act 1959 (Cth) and sworn by its proper officer, attesting to the accuracy and completeness of the information; and (d) also be provided to the Commission electronically by email addressed to CommsExemptions@accc.gov.au. 2 The formats referred to in 1(b), (c)(i), (c)(ii) and (d) may be amended by the Group General Manager of the Communications Group from time to time. The Commission shall provide notice of any such amendment on its website. 3 Unless otherwise defined in the Order the column headings have the same meaning as in the CAN RKR. Table 1: Spare Capacity Reporting Template ESA Code Number of DSLAMs installed DSLAM Capacity ATTACHMENT C - TELSTRA REPORTING INFORMATION 1 Information required to be provided by Telstra under this Order in order to calculate Aggregate Market Share or Deemed Capacity, must: (a) be current as at the relevant Ascertainment Date; (b) be provided to the Commission within 28 business days after the relevant Ascertainment Date; (c) be prepared and submitted in Microsoft Excel format using the template at Table 1: Telstra Reporting Template; (d) be provided to the Commission on CD-ROM, either: (i) by post: to the attention of: Group General Manager Communications Group ACCC PO Box 520 Melbourne 3001 Victoria; or (ii) by hand delivery: to the attention of: Group General Manager Communications Group ACCC 360 Elizabeth Street Melbourne. and be accompanied by the original of a statutory declaration, made under the Statutory Declarations Act 1959 (Cth) and sworn by its proper officer, attesting to the accuracy and completeness of the information; and (d) also be provided to the Commission electronically by email addressed to CommsExemptions@accc.gov.au. 2 The formats referred to in 1(b), (c)(i), (c)(ii) and (d) may be amended by the Group General Manager of the Communications Group from time to time. The Commission shall provide notice of any such amendment on its website. 3 Unless otherwise defined in the Order the column headings have the same meaning as in the CAN RKR. Table 1: Telstra Reporting Template ESA Code WLR SIO IN THE AUSTRALIAN COMPETITION TRIBUNAL File No 2 of 2008 rE: APPLICATION UNDER SECTION 152AV OF THE TRADE PRACTICES ACT 1974 (THE ACT) FOR A REVIEW OF AN EXEMPTION ORDER DECISION (INDIVIDUAL EXEMPTION ORDERS 1-4 OF 2008) MADE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION (COMMISSION) IN RELATION TO TELSTRA CORPORATION LIMITED PURSUANT TO SECTION 152AT(3)(a) OF THE ACT: BY CHIME COMMUNICATIONS PTY LTD (CHIME) Applicant TRIBUNAL: JUSTICE FINKELSTEIN (PRESIDENT) R DAVEY PROFESSOR D ROUND DATE OF ORDER: 24 august 2009 WHERE MADE: MELBOURNE THE TRIBUNAL ORDERS THAT: 1. Title This Order may be cited as the Tribunal's 2009 WLR Individual Exemption Order. 2. Nature of Order 2.1 This order operates to vary Individual Exemption Orders No 2 and No 4 of 2008 made by the Commission on or about 22 August 2008 in "Telstra's local carriage service and wholesale line rental exemption applications – final decision and class exemption". 2.2 A copy of this Order, marked up to show each variation to the Commission's orders, is on the Tribunal's file and available for inspection. 3. Commencement and Expiry 3.1 This Order comes into effect on the date this Order is made. 3.2 This Order will expire: (a) five years after the date of the making of this Order; or (b) upon the revocation of either the WLR Declaration or the ULLS Declaration, whichever first occurs. 4. Interpretation Unless the contrary intention appears, in this Order a word or a phrase has the meaning given to it in the Act, the Telecommunications Act 1997 (Cth) or the WLR Declaration. Act means the Trade Practices Act 1974 (Cth). Aggregate Market Share means in respect of each Attachment A ESA the ULLS-based competitors' aggregated share of SIOs, expressed as a percentage, using the following formula: (ULLS + ULLS Spare Capacity + WLR SIOs) ÷ (Total SIOs) Where: ULLS in relation to an Attachment A ESA means the number of "Total ULLS" reported in compliance with the CAN RKR. ULLS Spare Capacityin relation to an Attachment A ESA means a number to be ascertained in accordance with this Order. WLR SIOs in relation to an Attachment A ESA means a number to be ascertained in accordance with this Order. Total SIOs in relation to an Attachment A ESA means the sum of "SIO POTS Only", "SIO (POTS + xDSL)", "Telstra xDSL no POTS" and "Total ULLS" as reported in compliance with the CAN RKR. If there is a change to the CAN RKR so that Telstra is no longer required to provide any of the data required to calculate Aggregate Market Share, then Telstra must, within 28 Business days after each Ascertainment Date, provide that data to the Commission by way of a statutory declaration sworn by its proper officer. Ascertainment Date means the six month anniversary of the Practical Commencement Date and each six months thereafter. Where the Ascertainment Date would otherwise fall on a Saturday, on a Sunday or on a day which is a national public holiday in Australia, the Ascertainment Date is the next Business day. Attachment A ESA means an ESA which is listed in Attachment A to this Order. Bundled Fixed Voice and Broadband Service means a fixed voice service provided together with a broadband service to an end-user both of which are supplied by means of Telstra's metallic-based public switched telephone network. Business day means a day that is not a Saturday, a Sunday or a national public holiday in Australia. CAN RKR means the Telstra Customer Access Network Record Keeping and Reporting Rules as in force on the date of the making of this Order. Capped Exchange means an Exchange Building which Telstra has determined is not available for access by an access seeker for any reason, including an Exchange Building listed by Telstra in the TEBA Capped List as 'MDF capped', 'Racks capped' or 'Racks and MDF capped'. Commencement Date means the date on which this Order comes into effect in accordance with clause 3.1. Constructively Capped Exchange means an Exchange Building, other than a Capped Exchange, in respect of which the Commission has determined that Telstra requires as a condition of access that the access seeker undertake works at its own cost which are out-of-the-ordinary works. Deemed Capacity means, with respect to an Attachment A ESA, a number to be calculated in accordance with the following formula: 0.75 x (ULLS ÷ Number of ULLS-based competitors) Where: ULLS in relation to that Attachment A ESA means the number of "Total ULLS" reported in compliance with the most recent CAN RKR. Number of ULLS-based competitors means the number of ULLS-based competitors in that Attachment A ESA. If there is a change to the CAN RKR so that Telstra is no longer required to provide any of the data required to calculate Deemed Capacity, then Telstra must, within 28 Business days after each Ascertainment Date, provide that data to the Commission by way of a statutory declaration sworn by its proper officer. DSLAM means a digital subscriber line access multiplexer, a multi-service access node or other equipment capable of supplying a service via the ULLS. DSLAM Capacity means, with respect to an ULLS-based competitor, its aggregate number of Spare Ports in an Attachment A ESA. end-user means an end-user of carriage services or other services supplied by means of carriage services, not a supplier of those services. Exchange Service Area (ESA) has the meaning given to the expression "Exchange Serving Area" by the Australian Communications Industry Forum Limited Code, ACIF C559:2006, Part 1. Exchange Building means a telecommunications exchange building owned, operated or controlled by Telstra. Exemption means the exemption specified in clause 5 of this Order. Exemption ESA means an Attachment A ESA with: (a) three or more ULLS-based competitors; (b) an Aggregate Market Share equal to or greater than 30%; and (c) ULLS Spare Capacity equal to or greater than 40% of the aggregate number of WLR SIOs in that ESA. Subject to clauses 6.3, 6.5 and 6.6, once an ESA meets the requirements of an Exemption ESA, it will remain an Exemption ESA whether or not it subsequently meets the requirements of an Exemption ESA. Exemption ESA List means the list of Exemption ESAs published on the Commission's website pursuant to clause 6.1 of this Order. First Queued Access Seeker means, in respect of an Attachment A ESA, the Queued Access Seeker that lodged its PSR for an Exchange Building within the ESA first in respect of that ESA. Joint Completion Inspection (JCI) means an inspection of an Exchange Building by representatives of Telstra and an access seeker conducted following the completion of construction works in that Exchange Building by the access seeker. LCS means the Local Carriage Service declared by the Commission under section 152AL(3) of the Act pursuant to the LCS Declaration. LCS Declaration means the declaration made by the Commission under section 152AL(3) of the Act in respect of the LCS with effect from 1 August 2006 and published in the Commonwealth of Australia Gazette No. GN 31 of 9 August 2006, as varied or extended. LSS means the Line Sharing Service declared by the Commission under section 152AL(3) of the Act pursuant to the LSS Declaration. LSS Declaration means the declaration made by the Commission under section 152AL(3) of the Act in respect of the LSS, the extension of which became effective on 29 October 2007 and was published in the Commonwealth of Australia Gazette No. S214 of 29 October 2007, as varied or extended. MDF means Main Distribution Frame. Minimum Characteristics means the following characteristics of a Prescribed LSS to ULLS Migration Process: (a) any period in which an end-user is unable to receive a broadband service by means of the copper pair servicing the end-user's Standard Telephone Service by reason of that migration is no longer than three (3) hours or such other period determined by the Commission in an access arbitration; and (b) end-user involvement in the process (including without limitation the making of a telephone call or correspondence by the end-user to Telstra) is not required. Potentially Capped Exchange means a Telstra Exchange Building which Telstra has determined may be unavailable for access by an access seeker for any reason including an Exchange Building listed in the TEBA Capped List as 'Potential'. Practical Commencement Date means the first Reporting Date following the Commencement Date. Preliminary Study Request (PSR) means a request by an access seeker to Telstra for access to an Exchange Building. Prescribed LSS to ULLS Migration Process means one or other of the following: (a) a process established by Telstra for the migration by Telstra, at the request of an access seeker, of an end-user from the LSS to the ULLS in an Attachment A ESA, the terms of which are agreed with the access seeker; or (b) a process developed by Telstra for the migration by Telstra, at the request of an access seeker, of end-users from LSS to ULLS in Attachment A ESAs the terms of which are approved to the reasonable satisfaction of the Commission in accordance with the following procedure: Telstra must notify the Commission, if it develops a LSS to ULLS migration process, such notice to: (i) be in writing; (ii) be addressed to the Group General Manager, Communications Group (or such other person as notified by the Commission); (iii) include certification by an officer of Telstra that its LSS to ULLS migration process satisfies the Minimum Characteristics; (iv) detail each aspect of the LSS to ULLS migration process (including without limitation details of how the LSS to ULLS migration will be engineered, timeframes within which the LSS to ULLS migration will take place and details of any administrative processes to be undertaken in conjunction with the LSS to ULLS migration); (v) be in a form appropriate for publication by the Commission on its website; and (vi) not contain any confidential information; or (c) a process established by Telstra for the migration by Telstra, at the request of an access seeker, of an end-user from the LSS to the ULLS in an Attachment A ESA, the terms of which are determined by the Commission (subject to all rights of review and appeal being exhausted) in an access arbitration under Part XIC of the Act, provided that: (i) the reasonable legal costs of any access seeker who participates in the arbitration process are paid by Telstra; and (ii) the LSS to ULLS migration process satisfies the Minimum Characteristics. Publishing Date means a date three months after the Ascertainment Date. Where the Publishing Date would otherwise fall on a Saturday, on a Sunday or on a day which is a national public holiday in Australia, the Publishing Date is the next Business day. Queued Access Seeker means, in respect of an Attachment A ESA, an access seeker, including a First Queued Access Seeker, who before the Practical Commencement Date submitted a PSR in respect of an Exchange Building within the ESA that: (a) is under consideration by Telstra; or (b) has not been rejected by Telstra; or (c) has not been withdrawn by the access seeker; and (d) has not passed a JCI in relation to the PSR. Reporting Date means the last day of each calendar quarter, i.e. 31 March, 30 June, 30 September, and 31 December. SIO means service in operation. Spare Ports means the ports actually installed on a DSLAM that are not in use but are capable of providing a service via the ULLS. Standard Telephone Service has the meaning given by section 6 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth). TEBA Capped List means the document published by Telstra that lists each Exchange Building that Telstra regards as a Capped Exchange or a Potentially Capped Exchange. Telstra means Telstra Corporation Limited (ACN 051 775 556). ULLS means the Unconditioned Local Loop Service declared by the Commission under section 152AL(3) of the Act pursuant to the ULLS Declaration. ULLS-based competitor means an access seeker using the ULLS in an Attachment A ESA to supply a service to an end-user in the ESA. For the avoidance of doubt, Telstra is not an access seeker. ULLS Declaration means the declaration made by the Commission under section 152AL(3) of the Act in respect of the ULLS with effect from 1 August 2006 and published in the Commonwealth of Australia Gazette No. GN 31 of 9 August 2006, as varied or extended. ULLS Spare Capacity means, in respect of an Attachment A ESA that has not been listed on an Exemption ESA List, a number equal to the aggregate DSLAM Capacity of ULLS-based competitors in each Attachment A ESA, as at the Ascertainment Date, determined in accordance with the following procedure: (a) if within 28 Business days after each Ascertainment Date, an ULLS-based competitor gives to the Commission a statutory declaration sworn by its proper officer which verifies the following information, as at the relevant Ascertainment Date, in the format specified in Attachment B to this Order, in respect of every Attachment A ESA that has not been listed on an Exemption ESA List and in which it has a DSLAM installed: (i) the number of DSLAMs installed in each such ESA; and (ii) its DSLAM Capacity for each such ESA, its DSLAM Capacity will be as stated in the statutory declaration; and (b) if an ULLS-based competitor does not give to the Commission a statutory declaration in accordance with, and within the time set out in, preceding clause (a), the ULLS-based competitor's DSLAM Capacity for each Attachment A ESA in which it has installed a DSLAM will be the Deemed Capacity. WLR means the Line Rental Service (also known as Wholesale Line Rental) declared by the Commission under section 152AL(3) of the Act pursuant to the WLR Declaration. WLR Declaration means the declaration made by the Commission under section 152AL(3) of the Act in respect of the WLR with effect from 1 August 2006 and published in the Commonwealth of Australia Gazette No. GN 31 of 9 August 2006, as varied or extended. WLR SIOs in relation to an Attachment A ESA means the number of the ULLS-based competitors' WLR services in operation in that Attachment A ESA which must be reported by Telstra to the Commission, in the format specified in Attachment C and verified by a statutory declaration sworn by its proper officer, which attests to the accuracy and completeness of that information, within 28 Business days after each Ascertainment Date. 5. Exemption Subject to the conditions and limitations specified in clause 6, Telstra is exempt from any standard access obligation in respect of the supply of the WLR within an Exemption ESA. 6. Conditions and Limitations 6.10 The Exemption does not have effect with respect to an ESA until the Commission: (a) makes the necessary calculations to determine which ESAs are Exemption ESAs as at each Ascertainment Date; and (b) publishes on its website a list of those Exemption ESAs by the following Publishing Date. 6.11 The Exemption does not have effect with respect to an ESA until 6 months after the Publishing Date by which the Commission is to publish the Exemption ESA List on which that ESA first appears. 6.12 The Exemption does not have effect with respect to the supply by Telstra of the WLR to a Queued Access Seeker in an Exemption ESA. 6.13 The Exemption is subject to the condition that Telstra is required to provide to the Commission within three Business days of Telstra making a determination that an Exchange Building within an Attachment A ESA is a Capped Exchange or Potentially Capped Exchange, written notice of its determination which notice shall: (a) specify the Attachment A ESA, the Exchange Building and whether it has become a Capped Exchange or Potentially Capped Exchange and the date on which it became such an exchange; (b) provide an explanation of why it made the determination; (c) be in a form appropriate for publication by the Commission on its website; and (d) not contain any confidential information. 6.14 The Exemption does not have effect within an Exemption ESA from the date on which an Exchange Building within the Exemption ESA first becomes a Capped Exchange, Potentially Capped Exchange or a Constructively Capped Exchange. 6.15 The Exemption does not have effect within an Exemption ESA from the date on which Telstra ceases to supply the ULLS in the ESA whether to itself or to another person. For the purposes of this limitation, Telstra is deemed to have ceased to supply the ULLS if it ceases to be an access provider of the ULLS in the ESA. 6.16 The Exemption does not have effect with respect to the supply by Telstra of the WLR to an access seeker under an agreement which is in force as at the Practical Commencement Date for so long as that agreement remains in force. 6.17 The Exemption does not have effect in relation to, and only to, the supply by Telstra of the WLR to an access seeker in respect of an end-user who, immediately prior to the Practical Commencement Date, was supplied with a Bundled Fixed Voice and Broadband Service by the access seeker using the LSS, the WLR service and the LCS supplied by Telstra until the date that a Prescribed LSS to ULLS Migration Process is established. 6.18 In so far as the Exemption has effect as a result of the application of clause 6.8 of this Order in relation to an end-user supplied with a Bundled Fixed Voice and Broadband Service by an access seeker using the LSS, the WLR service and the LCS supplied by Telstra, the Exemption is subject to the condition that Telstra complies with the Prescribed LSS to ULLS Migration Process established for that access seeker. 7. Reporting Format Where applicable, information that is provided to the Commission under this Order must be provided in the reporting format specified in Attachments B or C. ATTACHMENT A ESA NAME ESA CODE STATE Acacia Ridge AARE QLD Avoca Beach ABCH NSW Albany Creek ABCK QLD Albion ABON QLD Ascot ACOT QLD Albury ALBY NSW Alexandra Hills ALXH QLD Aspley APLY QLD Applecross APPX WA Armadale ARMD WA Ascot ASCT VIC Ashfield ASHF NSW Ashmore ASHM QLD Ascot ASOT WA Attadale ATTA WA Avalon Beach AVAL NSW Balaclava BALC VIC Balgowlah BALG NSW Balmain BALM NSW Bankstown BANK NSW Bateman BATA WA Baulkham Hills BAUL NSW Bayswater BAYR VIC Burns BBCH WA Bundaberg BBEG QLD Beechboro BCHS WA Broadmeadows BDWS VIC Beenleigh BEEL QLD Belgrave BELG VIC Belmont BELM VIC Belmont BELT NSW Bendigo BEND VIC Brighton BGON VIC Brooklyn BKLN VIC Blackwood BKWD SA Blacktown BLAC NSW Blakehurst BLAK NSW Blackburn BLBN VIC Belconnen BLCN ACT Balcatta BLCT WA Ballajura BLJA WA Boolaroo BLRO NSW Bulimba BMBA QLD Bundall BNDL QLD Bondi BOND NSW Botany BOTA NSW Box Hill BOXL VIC Ballarat BRAT VIC Brighton BRIH SA Brunswick BRUK VIC Bassendean BSDN WA Bathurst BTST TAS Burwood BURD NSW Burleigh Heads BURL QLD Caboolture CABO QLD Campsie CAMP NSW Cannington CANN WA Carlingford CARL NSW Carramar CARR NSW Castle Hill CAST NSW Caulfield CAUL VIC Coburg CBRG VIC Campbelltown CBTN NSW Coffs Harbour CFSH NSW Chatswood CHAT NSW Chermside CHDE QLD Charlestown CHLS NSW Chapel Hill CHPL QLD Clayton CLAY VIC Cleveland CLVL QLD Coromandel Valley CLVY SA Camberwell CMLL VIC Canning Vale CNVL WA Concord CONC NSW Coogee COOG NSW Corio CORI VIC Capalaba CPBA QLD Camp Hill CPHL QLD Coorparoo CPRO QLD Craigieburn CRBN VIC Canterbury CRBY VIC Crace CRCF ACT Cardiff CRDF NSW Cremorne CREM NSW Currambine CRMS WA Croydon CROH VIC Cronulla CRON NSW Cairns CRSX QLD Croydon CRYD SA Chelsea CSEA VIC Cheltenham CTAM VIC Cottesloe CTOE WA Carlton CTON VIC Civic CVIC ACT Collingwood CWOD VIC City Beach CYTB WA Davey DAEY TAS Dandenong DAND VIC Dandenong North DANN VIC Doubleview DBLV WA Dee Why DEEW NSW Deakin DKIN ACT Doncaster East DNCT VIC Doncaster DONC VIC Darra DRRA QLD Drummoyne DRUM NSW Darwin DRWN NT Dural DURA NSW East EAST NSW Edgecliff EDGE NSW Edwardstown EDWN SA Elsternwick ELSK VIC Eltham ELTM VIC Eight Mile Plains EMPS QLD Endeavour Hills ENDS VIC Engadine ENGA NSW Everton Park ENPK QLD Epping EPPG VIC Epping EPPI NSW Edensor Park ERPK NSW Erskine Park ESPK NSW Eastwood EWOO NSW Elizabeth EZBH SA Ferny Hills FHLS QLD Five Dock FIVE NSW Fremantle FMTL WA Frenchs Forest FREN NSW Forrestfield FRFD WA Frankston FRTN VIC Footscray FSRY VIC Flemington FTON VIC Greensborough GBRH VIC Geelong GEEM VIC Girrawheen GIRR WA Glebe GLEB NSW Glenelg GLLG SA Golden Grove GNGE SA Glenroy GNRY VIC Gosnells GOSN WA Gepps Cross GPCS SA Granville GRAN NSW Greenmount GRMT WA Gosford GSFD NSW Glenunga GUGA SA Gulliver GULL QLD Hamilton HAMN NSW Hamersley HAMS WA Harbord HARB NSW Hawthorn HAWN VIC Heidelberg HDBG VIC Highett HGTT VIC Hilton HILN WA Henley Beach HNLY SA Holsworthy HOLS NSW Homebush HOME NSW Hornsby HORN NSW Hampstead HPSD SA Hartwell HTLL VIC Hunters Hill HUHL NSW Hurstville HURS NSW Inala IALA QLD Ingleburn INGL NSW Ipswich IPSW QLD Joondalup JDLP WA Jandakot JKOT WA Jamboree Heights JREE QLD Jandakot South JTSX WA Karingal KALG VIC Kambah KBAH ACT Kewdale KEDL WA Kellyville KELL NSW Kelmscott KELM WA Kensington KENS NSW Kew KEWE VIC Kangaroo Flat KGRO VIC Killara KILL NSW Kingsgrove KING NSW Kallangur KLGR QLD Kogarah KOGA NSW Kingsley KSLY WA Kooyong KYNG VIC Lakemba LAKE NSW Lane Cove LANE NSW Lavington LAVN NSW Lutwyche LCHE QLD Landsdale LDLE WA Lesmurdie LESM WA Lidcombe LIDC NSW Lindfield LIND NSW Lismore LISM NSW Liverpool LIVE NSW Loganholme LNHE QLD Lanyon LNYN ACT Lonsdale LSDE SA Lyndhurst LYNH VIC Maddington MADD WA Maitland MAIT NSW Malvern MALV VIC Manly MANL NSW Maroubra MARO NSW Mascot MASC NSW Matraville MATR NSW Mayfield MAYF NSW Maylands MAYM WA Mitchelton MCHN QLD Modbury MDBY SA Midland MDLD WA Maida Vale MDLE WA Medina MDNA WA Menai MENA NSW Mount Gravatt MGAT QLD Mount Hawthorn MHAW WA Mildura MILD VIC Miller MILL NSW Minto MINT NSW Miranda MIRA NSW Mitcham MITM VIC Mackay MKAY QLD Melba MLBA ACT Morley MLEY WA Moreland MLND VIC Mordialloc MLOC VIC Mullaloo MLOO WA Mindarie MNDE WA Manuka MNKA ACT Manning MNNG WA Monash MNSH ACT Moolap MOLP VIC Mona Vale MONA NSW Mosman MOSM NSW Merrimac MRAC QLD Mount Eliza MTEA VIC Mawson MWSN ACT Maroochydore MYDE QLD North Adelaide NALE SA Narre Warren NAWN VIC Northbridge NBRI NSW Northcote NCOE VIC Nundah NDAH QLD Nudgee NDGE QLD Nedlands NDLN WA Nerang NERG QLD North Essendon NESS VIC Newtown NEWT NSW North Geelong NGLG VIC New Lambton NLTN NSW North Melbourne NMEL VIC Newmarket NMKT QLD Noosa Heads NOOS QLD North Parramatta NPAR NSW Newport NPRT VIC Narangba NRBA QLD Norwood NRWD SA North Ryde NRYD NSW North Sydney NSYD NSW New Farm NWFM QLD Oakleigh OAKL VIC Orange ORGF NSW Ormond ORMD VIC Parramatta PARR NSW Paddington PDTN QLD Peakhurst PEAK NSW Pendle Hill PEND NSW Pennant Hills PENN NSW Petersham PETE NSW Petrie PETR QLD Port Kembla PKEM NSW Port Melbourne PMEL VIC Palmyra PMYA WA Penrith PNTH NSW Paradise PRDS SA Prospect PROT SA Preston PRTN VIC Port Adelaide PTAD SA Pymble PYMB NSW Quinns Rocks QINS WA Quakers Hill QUAK NSW Ramsgate RAMS NSW Randwick RAND NSW Robina RBNA QLD Richmond RCMD VIC Redcliffe REDC QLD Redfern REDF NSW Reynella RELA SA Revesby REVE NSW Riverton RIVT WA Rockingham RKHM WA Rockdale ROCK NSW Rooty Hill ROOT NSW Rose Bay ROSE NSW Reservoir RSVR VIC Rothwell RTWL QLD Ringwood RWOD VIC Rydalmere RYDA NSW Ryde RYDE NSW Salisbury SALA SA St Albans SALB VIC Scarborough SCBH WA Scullin SCLN ACT Scoresby SCOY VIC Seaford SEAF VIC Seaford SEFD SA Sefton SEFT NSW Semaphore SEMC SA Seven Hills SEVE NSW Shalvey SHAL NSW Shepparton SHPN VIC Silverwater SILV NSW Slacks Creek SLAC QLD South Melbourne SMEL VIC South Morang SMRN VIC Sandringham SNDM VIC South Oakleigh SOAK VIC Southport SOPT QLD South Brisbane SOTH QLD Springvale SPLE VIC Strathpine SPNE QLD Sebastopol SPOL VIC Spearwood SPRD WA South Perth SPTH WA Saratoga SRTA NSW Sherwood SRWD QLD Salisbury SSBY QLD South Strathfield SSTR NSW Stirling STIC SA St John STJN TAS St Kilda STKA VIC St Leonards STLE NSW St Marys STMA NSW St Marys STMF SA St Peters STPE SA Subiaco SUBT WA Surfers Paradise SURF QLD Sutherland SUTH NSW Sunnybank SYBK QLD South Yarra SYRA VIC Tamworth TAMH NSW Tingalpa TGPA QLD The Gap THGP QLD Thomastown THTN VIC Tullamarine TMNE VIC Thornbury TNBY VIC Tarneit TNIT VIC Townsville TNSF QLD Toowoomba TOBF QLD Toorak TRAK VIC Toronto TRTO NSW Tuart Hill TUTT WA Toowong TWOG QLD Tally Ho TYHO VIC Undercliffe UNDE NSW Unley UNLY SA Vaucluse VAUC NSW Victoria Park VICP WA Valley VLLY QLD Wacol WACL QLD Wagga Wagga WAGA NSW Wahroonga WAHR NSW Wanneroo WANO WA Waverley WAVE NSW Woodville WDVL SA Wendouree WEND VIC Wellington Point WEPN QLD West Adelaide WESA SA Wetherill Park WETH NSW Whyalla Jenkins WHJS SA Wheelers Hill WHLL VIC Willoughby WILL NSW Windsor WIRC VIC Wollongong WLGG NSW Wembley WMBY WA Woolloongabba WOBB QLD Wolfe WOLF NSW Woy Woy WOYY NSW Warilla WRLA NSW Wantirna WRNA VIC Waterford WTFD QLD Wynnum WYNM QLD Yeronga YRGA QLD Zillmere ZMRE QLD ATTACHMENT B - SPARE CAPACITY REPORTING INFORMATION 1. Information provided by an ULLS-based competitor under paragraph (a) of the ULLS Spare Capacity definition in clause 4 of this Order must: (a) be current as at the relevant Ascertainment Date; (b) be provided to the Commission within 28 business days after the relevant Ascertainment Date; (c) be prepared and submitted in Microsoft Excel format using the template at Table 1: Spare Capacity Reporting Template; (d) be provided to the Commission on CD-ROM, either: (i) by post: to the attention of: Group General Manager Communications Group ACCC PO Box 520 Melbourne 3001 Victoria; or (ii) by hand delivery: to the attention of: Group General Manager Communications Group ACCC 360 Elizabeth Street Melbourne. and be accompanied by the original of a statutory declaration, made under the Statutory Declarations Act 1959 (Cth) and sworn by its proper officer, attesting to the accuracy and completeness of the information; and (d) also be provided to the Commission electronically by email addressed to CommsExemptions@accc.gov.au. 2.The formats referred to in 1(b), (c)(i), (c)(ii) and (d) may be amended by the Group General Manager of the Communications Group from time to time. The Commission shall provide notice of any such amendment on its website. 3.Unless otherwise defined in the Order the column headings have the same meaning as in the CAN RKR. Table 1: Spare Capacity Reporting Template ESA Code Number of DSLAMs installed DSLAM Capacity ATTACHMENT C - TELSTRA REPORTING INFORMATION 1. Information required to be provided by Telstra under this Order in order to calculate Aggregate Market Share or Deemed Capacity, must: (e) be current as at the relevant Ascertainment Date; (f) be provided to the Commission within 28 business days after the relevant Ascertainment Date; (g) be prepared and submitted in Microsoft Excel format using the template at Table 1: Telstra Reporting Template; (h) be provided to the Commission on CD-ROM, either: (ii) by post: to the attention of: Group General Manager Communications Group ACCC PO Box 520 Melbourne 3001 Victoria; or (ii) by hand delivery: to the attention of: Group General Manager Communications Group ACCC 360 Elizabeth Street Melbourne. and be accompanied by the original of a statutory declaration, made under the Statutory Declarations Act 1959 (Cth) and sworn by its proper officer, attesting to the accuracy and completeness of the information; and (d) also be provided to the Commission electronically by email addressed to CommsExemptions@accc.gov.au. 2. The formats referred to in 1(b), (c)(i), (c)(ii) and (d) may be amended by the Group General Manager of the Communications Group from time to time. The Commission shall provide notice of any such amendment on its website. 3. Unless otherwise defined in the Order the column headings have the same meaning as in the CAN RKR. Table 2: Telstra Reporting Template ESA Code WLR SIO in the australian competition tribunal File No 2 of 2008 RE: APPLICATION UNDER SECTION 152AV OF THE TRADE PRACTICES ACT 1974 (THE ACT) FOR A REVIEW OF AN EXEMPTION ORDER DECISION (INDIVIDUAL EXEMPTION ORDERS 1-4 OF 2008) MADE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION (COMMISSION) IN RELATION TO TELSTRA CORPORATION LIMITED PURSUANT TO SECTION 152AT(3)(a) OF THE ACT by: CHIME COMMUNICATIONS PTY LTD Applicant TRIBUNAL: JUSTICE FINKELSTEIN (PRESIDENT) R DAVEY PROFESSOR D ROUND DATE: 24 august 2009 PLACE: MELBOURNE REASONS FOR DETERMINATION Introduction 1 In its reasons published on 27 May 2009 (Application by Chime Communications Pty Ltd (No 2) [2009] ACompT 2 (Chime No 2)) the Tribunal informed the parties of the conditions upon which it proposed to grant Telstra Corporation Limited (Telstra) exemption from the standard access obligations mentioned in s 152AR of the Trade Practices Act 1974 (Cth) (the Act) in respect of two declared services, the wholesale line rental (WLR) service and the local carriage service (LCS). The Tribunal provided proposed orders to the parties for their comment. There were two reasons for this. First, the proposed orders contained conditions not discussed during the hearing. Second, the proposed orders were complex, carrying the risk of unforseen and unintended consequences. As regards the second reason, as the parties know, the Tribunal is dependent upon the integrity of the parties' lawyers to point out mistakes and deficiencies of which they are aware. 2 The parties took up the opportunity to make submissions. They did this orally at a further hearing convened for that purpose and in writing. The Tribunal is indebted to the parties for their assistance, as a result of which it is now in a position to finalise these applications. 3 The parties' submissions can be divided into two main categories. There are submissions which concern matters of drafting. It is not proposed to discuss those submissions. For the most part, the suggested changes have been adopted, either as proffered or in a modified form. 4 There are also submissions about substantive aspects of the proposed orders. Those submissions primarily concern the two conditions which were not the subject of argument, the so-called "pair gain" condition and the "market share" condition (which in essence would make deregulation conditional upon at least three entrants capturing a certain percentage of end-users in - but not defined by - the relevant market(s)). Telstra submits that the new conditions are unnecessary. Chime Communications Pty Ltd (Chime) supports them and suggests that the market share condition should be strengthened. 5 It is appropriate for the Tribunal to explain the basis upon which it has decided to maintain the market share condition, albeit in a significantly modified form, and drop the pair gain condition. It is also necessary briefly to say something about the substantive submissions concerned with other conditions imposed by the Tribunal. The market share condition 6 Before turning to this condition, a few introductory comments are in order. According to Professor Cave: "Almost everyone believes that 'competition is the best regulator'. It promotes consumer welfare by offering choice, variety, keen prices and innovation": M Cave, 'Encouraging infrastructure competition via the ladder of investment' (2006) 30 Telecommunications Policy 223, 223. The Tribunal agrees with Professor Cave. And, so it seems, does the Parliament. The first of the objectives that lie behind the regime for access to telecommunication services is the promotion of competition: see s 152AB(2)(c). We are, however, at variance with Telstra as regards precisely what is encompassed by "competition" in the context of Pt XIC of the Act. 7 We recognise that the word "competition" is used by economists to mean different things. For the purposes of s 152AB(2)(c) the Tribunal is of opinion that competition refers to a process of actual rivalry in telecommunications market(s). Part XIC establishes a regime to promote competition in telecommunications market(s), to achieve any-to-any connectivity, and to encourage efficient investment in telecommunications infrastructure. These goals are achieved via the medium of access. The desired outcome is to create, through facilitating access, market(s) in which there is sufficient competition between rivals to produce the stated efficiencies. There will be sufficient or effective competition (as opposed to the unobtainable concept of perfect competition) if market(s) experience at least a reasonable degree of genuine rivalry between the constituent firms, each of which suffers some constraint imposed by competitors, customers and suppliers. When there is actual competition (ie when there is a sufficient number of sellers or there is present other indicia of interactive rivalry) each seller has the strongest incentive to offer customers the best (most efficient) price, the best possible quality in its product and the best service. Under competitive market conditions sellers also have the strongest incentive to innovate and develop new products or services: R Baldwin and M Cave Understanding Regulation – Theory, Strategy, and Practice (1999) 211. 8 Telstra's submissions tend to conflate the notion of competition and market power. Specifically, it concentrates attention on market power and only on the potential for competition. Telstra argues that the unconditioned local loop service (ULLS) is substitutable for the LCS and WLR service in providing services to end-users. It contends that barriers to ULLS-based competition are low, as evidenced by the mere entry of one rival with one digital subscriber line multiplexer (DSLAM) into a large number of exchange service areas (ESAs). This, so it says: (a) constrains Telstra's ability to exercise any market power it may have with regard to the LCS and WLR service; and (b) means a market share threshold is not required as a condition of deregulation in any ESA where one entrant exists with one DSLAM. 9 Telstra goes on to assert that the appropriate test for deregulation is whether it has market power. It submits that if it can be shown that Telstra no longer has market power in a particular market, there is no need for regulation. Telstra puts it this way: "Market share is not generally determinative of market power in that it has not been used as a trigger for de-regulation. A large market share may or may not give market power. Rather, it is the presence or absence of barriers to entry that is regarded, in Australian case law, as the ultimate determinant of whether a firm possesses market power". 10 Telstra seeks to derive support for its submission from the well-known passage from the Trade Practices Tribunal's decision in Re Queensland Co Operative Milling Association Ltd (1976) 8 ALR 481 (QCMA). There the Tribunal observed (at 516) that: Competition is a process rather than a situation. Nevertheless, whether firms compete is very much a matter of the structure of the markets in which they operate. The elements of market structure which we would stress as needing to be scanned in any case are these:— (1) the number and size distribution of independent sellers, especially the degree of market concentration; (2) the height of barriers to entry, that is the ease with which new firms may enter and secure a viable market; (3) the extent to which the products of the industry are characterized by extreme product differentiation and sales promotion; (4) the character of "vertical relationships" with customers and with suppliers and the extent of vertical integration; and (5) the nature of any formal, stable and fundamental arrangements between firms which restrict their ability to function as independent entities. Of all these elements of market structure, no doubt the most important is (2), the condition of entry. For it is the ease with which firms may enter which establishes the possibilities of market concentration over time; and it is the threat of the entry of a new firm or a new plant into a market which operates as the ultimate regulator of competitive conduct. 11 The Tribunal is of opinion that it is necessary to review the relatively static and uni-directional model that guided the Tribunal in QCMA. QCMA was decided at a time when industrial organisation economists emphasised the causal flow from industry structure (eg number of sellers, concentration, entry conditions etc) via conduct (eg price and non-price behaviour) to performance (eg profits, efficiency, innovation etc). This approach has been overtaken by developments in economic theory and by empirical assessments of competition in modern markets which attest to the fact that this causal flow is by no means the dominant mechanism to explain market behaviour. Thus, the QCMA paradigm is no longer an infallible guide to assessing the behaviour of firms and markets. Sole reliance on this method has the potential to provide misleading conclusions about market behaviour. 12 It is often necessary to examine the forces that explain industry structure rather than to regard structure primarily as the determinant of conduct and performance. It is now widely recognised that firms behave strategically in order to shape the market environment to their own competitive advantage. For example, strategic barriers to entry or expansion (ie conduct deliberately engaged in by an incumbent that is designed to deter, or increase the cost of, entry or expansion) affects the structure of a market, rather than being conduct that can be explained only by the structure of the market. This shift in thinking recognises the realities of modern markets and the observed strategic behaviour of firms. 13 Turning to the market share condition, we note it is to operate on an ESA-by-ESA basis. The condition has three limbs, each of which must be satisfied for an ESA to be exempt from regulation. The first limb is a three plus rule (a rule that requires an ESA to have at least three ULLS-based competitors in addition to Telstra, each providing an ULLS-based service). Three entrants plus Telstra is the minimum number of sellers that the Tribunal believes are needed in an ESA for the purposes of promoting competition. In this connection it is necessary to keep distinct the concepts of competition and market power. The competition with which Pt XIC is concerned is rivalry between an incumbent and new entrants. Part XIC assumes (correctly in the Tribunal's opinion) that if as a result of actual rivalry in the relevant market(s) there is sufficient or effective competition in the sense we have described it (as to which see Chime No 2), that will constrain the market power of the incumbent. 14 The second limb is that the aggregate market share of the ULLS-based competitors in an ESA be at least 30 per cent of the total services in operation (SIOs) in that ESA. The aggregate market share in an ESA is the sum of the ULLS-based competitors' ULLS SIOs, installed spare capacity (i.e. the number of ports actually installed in DSLAMs which are not in use) and WLR SIOs, divided by total SIOs. Initially, the Tribunal's approach to the calculation of market share ignored ULLS-based competitors' installed spare capacity. Telstra submitted that it should be taken into account. The Tribunal agrees. An ULLS-based competitor who installs spare capacity has made an investment (albeit not necessarily great) in the expectation that it will attract new business. This is evidence from which it may be inferred that the competitor intends to remain in the market. 15 The Tribunal also considered whether to take into account potential installed capacity (i.e. the total number of ports that ULLS-based competitors' DSLAMs are capable of supporting although the cards for those ports have not yet been installed). In the end, the Tribunal did not adopt this standard for two reasons. First, too many areas of uncertainty and difficulties are involved in assessing potential installed capacity. Second, over time, as additional cards are installed, potential installed capacity will be reflected in the calculation of installed spare capacity. 16 Because ULLS-based competitors are under no obligation to provide the ACCC with information about their installed spare capacity, incorporating that capacity in the calculation of aggregate market share presents a difficulty. A variety of methods of overcoming the difficulty were suggested. In the end the Tribunal has proceeded as follows. Each ULLS-based competitor will be given an opportunity, periodically, to advise the ACCC of its actual installed spare capacity in each ESA in which that ULLS-based competitor has installed at least one DSLAM. If this information is provided it will be used to calculate the ULLS-based competitors' aggregate market share in each ESA. The Tribunal, however, has no means of compelling the provision of this information. Therefore, if the information is not provided by an individual ULLS-based competitor then the Tribunal thinks it appropriate for that ULLS-based competitor's installed spare capacity to be treated as being 75 per cent of a number equal to the total ULLS SIOs in each relevant ESA divided by the number of ULLS-based competitors in that ESA. 17 We should explain how we have arrived at the figure of 75 per cent. According to Telstra's evidence (which is disputed), the spare capacity of ULLS-based competitors in each ESA at the time of the ACCC decision was, on average, approximately 60 per cent. The Tribunal has opted for a somewhat higher percentage so as to encourage ULLS-based competitors to provide details of their actual installed spare capacity. Telstra suggested a figure of 100 per cent, but this figure is unreasonably high. 18 The second limb is not, as Telstra believes, imposed to reduce its market share to a point at which it may be said its market power is reduced. The condition is complementary to the first limb, and is designed to ensure that, prior to exemption, ULLS-based competitors have built a market presence and developed a reputation sufficient to ensure that, post-exemption, they are likely to remain in the market as viable entities and continue to invest in ULLS infrastructure. Put another way, the purpose in introducing the second limb is to enable the Tribunal to be satisfied that the ULLS-based competitors who have entered an ESA are likely to be commercially meaningful competitors who can constrain Telstra in the long-run. The Tribunal does not accept that the mere fact of entry, especially on a small scale, will necessarily have any socially-useful long-run impact on competition. It is necessary to take into account what an ULLS-based competitor is able to accomplish in the market over time, rather than focusing on a simple, structural, snap-shot factor such as the ease of (small-scale) entry. 19 As Schmalensee explains, new competitors must put "real pressure on established firms' profits", as only then will the incumbents be forced to behave competitively: R Schmalensee 'Ease of Entry: Has the Concept Been Applied Too Readily?', in H First, E Fox and R Pitofsky (eds), Revitalizing Antitrust in Its Second Century 338, 342. 20 By imposing the second limb the Tribunal is not suggesting that if ULLS-based competitors have taken, say, a 30 per cent market share, that this necessarily bears on the existence or otherwise of Telstra's market power. The Tribunal accepts that the use of market share and market concentration is but a crude method of determining market power. Too much attention on market share can obscure those other behavioural and structural characteristics of the market that will determine the actual market power held by a firm. On the other hand, market share analysis can be a useful first step in the investigation of market power. The second, and often more complex, step is how to interpret market share statistics in the light of market conditions. A market share of over 70 per cent may frequently be considered prima facie evidence of market power and a firm with a market share below 30 per cent is unlikely to have any significant long-lasting monopoly power, especially when entry to the market is not foreclosed. Generally, however, when looking at market power, market share data serves most usefully as a preliminary screening device, to be used in conjunction with other market indicia. 21 The third limb is that the ULLS-based competitors' aggregate installed spare capacity in each ESA is equal to or greater than 40 per cent of their WLR SIOs in that ESA. There is a risk that in the absence of this requirement, the second limb could be satisfied where ULLS-based competitors have, in aggregate, a substantial number of WLR SIOs but an insignificant number of ULLS SIOs. The Tribunal is eager to ensure that ULLS-based competitors have a sufficient market share (the second limb) and that ULLS SIOs comprise a not-insignificant proportion of that market share, giving the ULLS-based competitors the ability to expand and take market share away from Telstra. The figure of 40 per cent has been adopted to reflect the fact that the third limb only takes into account ULLS spare capacity, ignoring ULLS SIOs. 22 The second and third limbs will together ensure that prior to the exemption taking effect in an ESA, ULLS-based competitors will have the installed spare capacity to transfer a not-insignificant number of their end-users from the WLR service to ULLS-based services (third limb), and an incentive to install the necessary infrastructure to transfer their remaining end-users (the second limb). The pair gain condition 23 The second condition concerns pair gain. A pair gain system consists of an electronic box that permits a single line to service multiple end-users. A prerequisite to the supply of the ULLS is an unconditioned wire between an exchange and an end-user's premises. Where a pair gain system has been installed on the wire the prerequisite is not met. In Chime (No 2) the Tribunal said at [156] that: "Having regard to the significant number of SIOs that are, and may be, affected by pair gain systems, the Tribunal is not satisfied that it would be in the long-term interests of end-users for the matter to be addressed simply as an MES [minimum efficient scale] issue. It is appropriate that there be a condition to the effect that the exemptions do not apply to an SIO in respect of which an end-user cannot be supplied by way of the ULLS". 24 Telstra objected to the imposition of such a condition principally for the reason that it would be enormously complex, costly and impracticable, and that any benefit to be derived from the condition would be outweighed by those costs and difficulties. Notwithstanding what was said in Chime (No 2), in light of this submission, the Tribunal accepts that the imposition of the condition would be disproportionately expensive. Other conditions 25 In the ACCC's orders, there was a condition dealing with the migration of end-users being supplied with an LSS (line sharing service)-based service to the ULLS. The evidence suggests that migration from the LSS to the ULLS is both costly and time consuming, with some end-users being left without a broadband service for significant periods. This is a barrier to entry for access seekers currently using the LSS in combination with the LCS/WLR service for the provision of voice and broadband services, who may wish to provide those services via the ULLS. 26 The Tribunal's order provides the following three alternatives: (a) a migration path established by agreement between an access seeker and Telstra; (b) a migration path proposed by Telstra and approved by the ACCC; and (c) a migration path determined in an arbitration under Pt XIC. The third alternative is included to cover the possible but unlikely event that the second alternative is an impermissible delegation. It should be noted that, as regards the third alternative, the reasonable legal costs of an access seeker who participates in arbitration are to be paid by Telstra. This requirement has been imposed to put access seekers who go to arbitration in no worse a position than they would be under the other processes. 27 As to timing, the orders do not come into effect for about 15 months at which point ESAs that satisfy the conditions will become exempt. Thereafter exemptions for any further ESAs will be determined on a bi-annual basis. Chime proposed that the exemptions be determined annually. The Tribunal is of opinion that this is too long. Orders 28 The Tribunal now publishes its orders. I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Determination of the Australian Competition Tribunal. Associate: Dated: 24 August 2009 Counsel for the Applicant: Mr N J O'Bryan SC Mr M J Hoyne Solicitor for the Applicant: Herbert Geer Counsel for Telstra Corporation: Dr J Griffiths SC Solicitor for Telstra Corporation: Mallesons Stephen Jacques Counsel for the Australian Competition and Consumer Commission: Mr C Caleo SC Mr P Gray Solicitor for the Australian Competition and Consumer Commission DLA Phillips Fox Date of Hearing: 21 July 2009 Date of Determination: 24 August 2009