Telstra cries foul on ACCC’s court action

David Quilty, group managing director Public Policy and Communications at Telstra, said it was a complete waste of court time and taxpayer money.

"The ACCC is suing us for something we proactively and voluntarily reviewed and fixed a year ago," he said.

 "This case relates to a small number of inadvertent process issues. There was an issue and we fixed it - without the involvement of the ACCC.

"Since we fixed the problem a year ago, the ACCC has not once suggested it had problems with our new processes."

Quilty said in recent years, there has been tremendous growth in the number of access seekers to Telstra exchanges, and Telstra has accommodated - and heavily subsidised - these competitors.

There are now nearly 1.2 million unbundled local loop and spectrum sharing services in operation through Telstra exchanges.

In July 2003, there were just 18,000 unbundled local loop and only seven spectrum sharing services.

The ACCC was informed about Telstra's review of access to its exchanges. In July 2008, the ACCC instituted a reporting regime to keep an eye on the process, said Quilty.

"To Telstra's knowledge, no issues have been identified by the ACCC under its current processes," he said.

"Now, some nine months later, the ACCC has sued Telstra for a past failure to allow access to a handful of exchanges.

"Taking court action a year after this issue was resolved is a clear demonstration of what is wrong with the current regime and the way it is administered."

The ACCC instituted proceedings in the Federal Court in Melbourne against Telstra for alleged contraventions of the Trade Practices Act 1974 (TPA) and the Telecommunications Act 1997 in mid-March.

It alleges that Telstra has refused access seeker requests for interconnection at seven key metropolitan exchanges by claiming that they were "capped".

The ACCC said the telco claimed there was no capacity on the main distribution frames available for access seekers to interconnect their equipment to the copper wires running to customer homes.

It also alleges that there was capacity available, or that could have been made available, on Telstra's main distribution frames.

According to the ACCC Telstra has breached the access regime in the Telco Act which requires Telstra to provide access to its facilities.

Both the standard access obligations and the access regime in the Telco Act are conditions of Telstra's carrier licence.

The ACCC alleged that Telstra has engaged in misleading and deceptive conduct in contravention of section 52 of the TPA, by representing to access seekers individually and on lists of "capped" exchanges published on the Telstra Wholesale website.

The ACCC is seeking declarations, pecuniary penalties and injunctions.

This matter has been listed for a directions hearing in the Federal Court, Melbourne at 10.15 a.m. on Friday, 17 April 2009 before Justice Middleton.