NBN Co revealed objections to the proposed updated non-discrimination guidelines for superfast fixed-line networks.

The new and updated guidelines are set to replace those that have been issued in 2021. The updates encompass two tests to assess potential discrimination between access seekers. The first one intends to determine explicit discrimination by evaluating whether all access seekers have a “reasonable opportunity” to “acquire the same services on the same terms”. The second one intends to identify implicit discrimination: “does an access provider provide services in a way that impedes access seekers’ ability to compete in a relevant telecommunications market.”

According to NBN Co, this new approach implemented by ACCC will “create practical difficulties for NBN to implement new products, pricing initiatives, and operational processes”. These innovations intend to promote the long-term interests of end-users. In addition to this, NBN Co also claimed that the updated guidelines on discrimination will only impose additional obligations on access providers that are beyond those originally contemplated by parliament.

NBN Co told the ACCC: “The proposed additional requirement to take into account each access seeker’s unique circumstances will further fetter NBN’s ability to update the terms and conditions of its products in a timely manner, contrary to the LTIE which is a key objective of the [non-discrimination obligations].”

NBN Co also argued that: “This will hamper NBN’s ability to respond to competition in the market and will dampen investment and competition. The proposed test will also stifle innovation by limiting NBN to pursuing only those projects that can reasonably be taken up by all access seekers. Further, the proposed test favours certain large retail service providers by operating to prevent or delay the implementation of programs that will benefit other access seekers, particularly new entrants.”

Still, according to the NBN, the test for implicit discriminatory conduct would not promote the LTIE. The test was also not supported by the history of the part of the Competition and Consumer Act. This act outlined the non-discrimination obligations. “This is because the test will capture any conduct that potentially impedes an access seeker’s ability to compete.” NBN Co argued that this is regardless of whether an access seeker intended to compete in a particular market segment.

NBN Co warned that “The introduction of a broad test for implicit discriminatory conduct is a blunt tool which will come to treat almost all differentiation as anti-competitive.”

Meanwhile, the Australian Competition and Consumer Commission has rebuffed these objections. The ACCC responded in a consultation report stating that: “We consider that the possibility of NBN Co favouring certain access seekers is something the non-discrimination provisions are intended to address, without seeking to differentiate whether this is done explicitly or implicitly.”