[LINK] Oz: 'ACCAN criticises NBN's gag clause on Optus'

Roger Clarke Roger.Clarke at xamax.com.au
Tue Oct 11 08:35:29 AEDT 2011

Consumer body hits gag on Optus in NBN deal
The Australian
October 11, 2011 12:00AM

A CONSUMER group [which has previously been savaged by The Australian 
because its] funding is controlled by the federal government has 
attacked plans by the company rolling out the National Broadband 
Network to gag Optus from criticising the $36 billion project, 
warning that this will dampen competition.

[News Corp hates the NBN even more than it hates ACCAN, and in 
politics - which is all the Oz seems to be about, these days - 'the 
enemy of the enemy is my friend [for now]'.]

The Australian Communications Consumer Action Network has said a 
controversial provision in the NBN Co's $800 million deal with Optus, 
which stops the country's second-largest telco from criticising the 
NBN for 15 years when marketing its own wireless services, would be 
bad for consumers.

"Restraints on marketing practices that are part and parcel of a 
healthy competitive market would have a negative effect on consumers 
by dampening the competition that would otherwise occur," ACCAN told 
a competition regulator review.

The warning came as Australian Competition & Consumer Commission 
chairman Rod Sims yesterday raised concerns about the potential for 
competition to be distorted while the NBN is being rolled out.

NBN Co has struck a deal with Optus to shore up traffic on the 
ultra-fast network, under which the company will migrate its hybrid 
fibre coaxial cable customers on to the NBN.

ACCAN says that is "not in our judgment a valid reason for silencing 
criticism of the NBN that might be made by way of marketing 

"There are existing laws prohibiting misleading and deceptive 
conduct, and these laws should be sufficient to address any concerns 
NBN Co may have about marketing claims by Optus."

ACCAN, which was set up to be the nation's peak independent body on 
telecommunications, receives $2m from a federal levy on 
telecommunications companies distributed by the government.

Under the deal, Optus has agreed not to conduct a marketing campaign 
that is disparaging about the performance of the NBN in areas where 
Optus is shutting down its cable network, which passes 2.4 million 

Telstra has signed a deal to transfer its fixed-line customers to the 
NBN, under which it has agreed not to promote wireless internet as a 
substitute for the NBN for 20 years.

There are expectations the ACCC will force the provisions in both 
deals to be overhauled. Finalisation of the deals depends on them 
being cleared by the consumer watchdog.

Mr Sims said yesterday he was concerned about the rollout phase of 
the NBN, as service providers such as Optus, iinet and AAPT would 
continue to rely on access to Telstra's copper network to supply 
their services. It was crucial there was "a level playing field so 
the competitive landscape is not distorted as the NBN is rolled out".

The ACCC was working with Telstra on parts of its $11bn deal with NBN 
Co and the government to ensure there was "equivalence" among 

"The same approach will be taken to regulating the NBN," Mr Sims said.

Optus spokeswoman Liz Greene said the company welcomed all submissions.

NBN Co spokeswoman Rhonda Griffin pointed to previous comments that 
Optus would still be able to market its wireless services, and that 
the restriction applies only where the Optus cable network operates.

Roger Clarke                                 http://www.rogerclarke.com/
Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
                    Tel: +61 2 6288 1472, and 6288 6916
mailto:Roger.Clarke at xamax.com.au                http://www.xamax.com.au/

Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW
Visiting Professor in Computer Science    Australian National University

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