Govt seeks to limit Telstra advantage in NBN Co data flows

The federal government is seeking to remove any perceived or actual advantage to Telstra as a result of the information it receives from NBN Co on the network rollout.

Communications Minister Malcolm Turnbull has asked the ACCC to consult with industry on a proposed carrier license condition for NBN Co which would govern the way it provides rollout information to Telstra and retail service providers (RSPs).

Turnbull and the Government are concerned that Telstra, as a result of its role as the owner of the copper and HFC networks being bought by NBN Co, may either have or be perceived to have an advantage resulting from the information it receives from NBN Co over other RSPs.

The move is the result of long-term lobbying by RSPs - such as  Optus and iiNet - to ensure confidential NBN data disclosed to Telstra Wholesale can't be abused by Telstra Retail.

A carrier licence condition would represent an escalation of the issue. Until now, the information sharing standards have been covered by the Telstra migration plan.

In order to "ensure symmetry" between Telstra and other RSPs in relation to NBN-relevant information, the Communications Department has drafted a new carrier licence condition for NBN Co, which today went to industry for consultation.

The licence condition would not include rules on fibre-to-the-premise (FTTP) information sharing, as Telstra is already required to ring-fence FTTP information internally under its structural separation undertaking and migration plan, the ACCC said.

It would, however, lay out regulatory rules on the sharing of information relating fibre-to-the-node (FTTN), fibre-to-the-basemet (FTTB) and hybrid-fibre coaxial (HFC) work, to oblige NBN Co to share equivalent information on  with retail service providers as it does with Telstra.

"The proposed carrier licence condition will require NBN Co to share rollout related information with all retail service providers," the ACCC wrote in a discussion paper [pdf].

"The department considers this will ensure that Telstra does not have any actual or perceived information advantage by virtue of its role as the owner of copper and HFC networks being acquired by NBN Co."

NBN Co's position as the sole provider of fixed-line access services in the areas it operates - alongside objectives to meet rollout targets - means the company could not necessarily be trusted to share information fairly should the new condition not be imposed, the ACCC said.

The communications regulator also said there was a risk Telstra could use the information it receives from NBN Co as part of the pair's definitive agreements to gain an advantage against its retail competitors.

"The information Telstra receives could include advance details of the timing for the rollout or the particular technology mix to be used at a given location," the ACCC said in its discussion paper.

"Telstra could use this information to inform its own retail activities in that area, such as by deciding which technologies to target for marketing."

Not only would equal access to rollout information help RSPs make informed decision about marketing and product development, the ACCC said, it would also help promote a positive experience for users migrating to the NBN.

"In the initial NBN rollout regions, many consumers risked losing continuity of service as a result of not migrating to the NBN during the migration period," the regulator wrote.

"Retail service providers have stated that an absence of reliable information about the timing and availability of NBN services contributed to these outcomes."

The information to be classified under the NBN Co licence condition could be categorised as 'infrastructure information' and 'services information', according to the ACCC.

It would be split into data relating to NBN Co's use of Telstra's facilities, and details about connecting or switching over services at a premise as it is connected to the NBN.

The ACCC has proposed laying out a set of 'guiding principles' for the licence condition, rather than a list of specific and individual pieces of information to be covered.

"A large amount of disaggregated information is disclosed by NBN Co to Telstra, and information is disclosed at different points in time, and in different formats," it wrote.

"The full suite of information to be disclosed has not yet been identified, and it is highly likely that the information requirements will change over time.

"For instance, the extent to which retail service providers will be involved in NBN construction activities, and therefore have access to NBN information, is not yet settled."

Developing a set of principles for the licence would allow the objectives of the condition to be met in times when circumstances change, the ACCC said.

It suggested the principles outline:

• that any information made available by NBN Co to one RSP be offered to all
• that Telstra not gain a competitive advantage by the information it is given by NBN Co, and
• that the information should be supplied in a timely and accurate way so RSPs can make use of it, among other points.

The ACCC is seeking industry feedback on a range of issues from the carrier licence condition, including costs and benefits, limitations or obstacles, appropriate underlying principles, what information would be most useful, how the information should be provided, and whether any information should not be disclosed.

Submission are due by April 24.