Telecommunications Act 1997 Parts 7 and 8 requirements and exemptions
The requirements established by Parts 7 and 8 of the Telecommunications Act 1997 apply to:
a fixed-line local access network or
part of a fixed-line local access network that's built, upgraded, altered or extended to residential or small business users after 1 January 2011, with a usual download speed of more than 25 megabits per second (known as 'superfast' services).
Wholesale Layer 2 bitstream services
The Australian Competition and Consumer Commission (ACCC) regulates the provision of Layer 2 bitstream services to ensure that these services are offered on an open and equivalent access basis.
Prior to 26 May 2020, wholesale Layer 2 bitstream services were regulated by Part 7 of the Telecommunications Act 1997. The Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 (TLA Act) repealed Part 7 and associated provisions of the Competition and Consumer Act 2010 (CCA).
Importantly, even though Part 7 has been repealed, relevant ACCC declarations and access determinations (set out below) remain in force.
The ACCC has declared a layer 2-bitstream service. This service is called the local bitstream access service (LBAS). The ACCC declared the LBAS in February 2012, and subsequently made a final access determination for the LBAS declaration. For more details on these decisions, see the links below.
On 29 July 2016, the ACCC also declared the Superfast Broadband Access Service (SBAS), which is a superfast layer 2 bitstream service, or in the case of Telstra, a Fibre Access Broadband Service. The SBAS applies to a number of specific types of network controllers, including those that were exempted from Part 7, meaning the LBAS did not apply to them. More information on the ACCC SBAS declaration and associated Access Determination can be found at the links below:
The TLA Act provides for existing exemption instruments that had been granted under Part 7 of the Act to continue to have effect, and preserves the power for the instruments to be varied by the Minister. This ensures that relevant networks continue to be regulated by either the LBAS or SBAS as previously envisaged. However, the Minister cannot make a new exemption instrument from 26 May 2020.
The wholesale-only requirement (Part 8)
As a general rule, Part 8 requires fixed-line superfast capable lines servicing residential customers to be wholesale only. However, from 26 August 2020:
networks servicing predominantly small business areases will no longer be subject to the separation rules
lines and networks that would otherwise be subject to structural separation requirements will be able to operate on a functionally separated basis subject to the approval of the Australian Competition and Consumer Commission (ACCC); and
the ACCC will be able to make class exemptions for small providers (up to 2,000 services, which could be raised by regulation to 12,000).
Ministerial exemptions from structural separation requirements in the Telecommunications Act 1997
There are currently five ministerial exemptions from the structural separation requirements in the Telecommunications Act 1997 in force: