Applications by Telstra Corporation Limited and TPG Telecom Limited (No 2) [2023] ACompT 2

AUSTRALIAN COMPETITION TRIBUNAL

Applications by Telstra Corporation Limited and TPG Telecom Limited (No 2) [2023] ACompT 2 Review from: Applications by Telstra Corporation Limited and TPG Telecom Limited for review of Australian Competition and Consumer Commission Merger Authorisation Determination MA1000021

File numbers: ACT 1 of 2022

Determination of: Justice O'Bryan (President) Dr J Walker (Member) Ms D Eilert (Member)

Date of determination: 21 June 2023

Catchwords: COMPETITION – applications under s 101 of the Competition and Consumer Act 2010 (Cth) (CCA) for review of merger authorisation determination made by the Australian Competition and Consumer Commission (ACCC) – network sharing arrangement entered into between Telstra Corporation Limited and TPG Telecom Limited in respect of regional areas of Australia – conduct sought to be authorised comprised one element of the network sharing arrangement, being Telstra's use of TPG's spectrum licences in regional areas – where authorised use of spectrum licences is deemed to be an acquisition of an asset for the purposes of s 50 of the CCA – where ACCC refused authorisation – review of the ACCC's determination on the basis of the information, documents and evidence provided to the ACCC – whether Tribunal satisfied that Telstra's use of TPG's spectrum licences in regional areas would not be likely to have the effect of substantially lessening competition in the retail and wholesale markets for mobile telecommunications services – whether Tribunal satisfied that Telstra's use of TPG's spectrum licences in regional areas would be likely to result in benefits to the public that outweigh any detriments to the public likely to result from that use – in the alternative, whether Tribunal satisfied that the proposed network sharing arrangement as a whole would not be likely to have the effect of substantially lessening competition in the retail and wholesale markets for mobile telecommunications services – whether Tribunal satisfied that the proposed network sharing arrangement as whole would be likely to result in benefits to the public that outweigh any detriments to the public likely to result from that use - determination of the ACCC affirmed STATUTORY INTERPRETATION – proper construction of the conditions for authorisation stated in s 90(7) of the CCA - the meaning and application of the "future with and without" test in the context of the authorisation conditions in s 90(7)