NBN Co has received a slap down from the ACCC for discriminating between RSPs and for providing Macquarie Telecom with pricing details months ahead of its competitors.
The government-owned wholesaler has been given a formal warning over the discrimination with the ACCC accepting a court enforceable undertaking from NBN that it will put in measures to ensure similar doesn’t happen again.
The action, which relates to NBN’s enterprise Ethernet offerings, is the first time the ACCC has used its power to issue a formal warning for a contravention of the service providers. NBN Co is prohibited under Competition and Consumer Act obligations from discriminating among retail service providers in the supply of regulated wholesale services and related activities.
The ACCC says from at least January 2018, NBN offered ‘materially different’ commercial terms to different RSPs as it upgraded its infrastructure to support high-speed, business-grade services. It also provided Macquarie Telecom (which ACCC says did nothing wrong) with indicative pricing information for its new enterprise ethernet service in January 2018. It wouldn’t be until May 2018 that other RSPs would see that same information.
ACCC chair Rod Sims says NBN Co failed to comply with its non-discrimination obligations on a number of fronts.
“These legal obligations were enacted to ensure that NBN Co does not distort competition in the market for retail NBN services, such as by favouring larger RSPs.”
The ACCC says it found no evidence that NBN’s actions resulted in specific harm or competitive detriment and that market feedback found NBN’s entry to the wholesale markets had increased competition, particularly in areas where Telstra was the only other fixed-line infrastructure provider.
Sims says the action was nonetheless a serious breach of NBN’s non-discrimination obligations.
“The undertaking we have accepted from NBN Co is intended to ensure that all access seekers can compete on an equal footing going forward.”
In its undertaking to the ACCC, NBN co admits it didn’t have appropriate processes in place to ensure compliance with transparency and non-discrimination obligations. It has committed to offering consistent contract terms and to providing information at the same time to all access seekers, as well as implementing ‘extensive compliance processes’. An external audit of its compliance will also be required.
“We will be closely monitoring NBN Co’s conduct under the enforceable undertaking, and reserve our right to take further action if we are not satisfied,” Mr Sims says.