The Australian Competition and Consumer Commission yesterday accepted a joint functional separation undertaking from Uniti Group, the first undertaking the ACCC has accepted since the new separation rules came into effect in late August this year.
Under the new rules, superfast broadband network operators are no longer required to operate on a wholesale-only basis if they obtain ACCC approval to operate separate wholesale and retail businesses on a functionally separated basis. This is intended to provide greater commercial flexibility for superfast network operators and promote infrastructure-based competition.
Following the ACCC’s acceptance of the undertaking, Uniti must offer wholesale access to third-party access seekers on the same terms as it provides to its own retail service providers.
Uniti is required to maintain strict arms-length separation arrangements between its wholesale and retail business units and has committed to strong protections to prevent confidential information being passed between these business units, including the use of separate business and operating systems.
These commitments should ensure equivalence of network access for RSPs and promote downstream competition over the ten year duration of the undertaking.
The new separation rules also empower the ACCC to determine a model set of terms for standard functional separation undertakings and a class exemption for small operators.
On 16 October 2020, the ACCC released a final deemed functional separation undertaking instrument. Superfast broadband network operators supplying services to no more than 50,000 residential customers may elect to be bound by this instrument instead of submitting their own customised undertakings to the ACCC for approval.
The ACCC also made a class exemption instrument in August this year. This instrument allows corporations that supply fixed-line carriage services to no more than 2000 residential customers to elect to be exempt from the new separation requirements.
The ACCC will publish a list of all functional separation undertakings that it has accepted, including from corporations that have elected to be bound by the deemed undertaking, and a list of network operators electing to be bound by the class exemption, on our public registers.