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Ministers for the Department of Communications and the Arts

Regulatory instruments for NBN Migration Plan finalised

27 January 2015

The Government today announced the finalisation of the Telecommunications (Migration Plan Principles) Determination 2015 and the Telecommunications (Migration Plan – Specified Matters) Instrument 2015

These instruments will allow Telstra to lodge its revised Migration Plan with the Australian Competition and Consumer Commission (ACCC) for consideration. The making of the revised Migration Plan is a key step in moving to the multi-technology mix (MTM) National Broadband Network (NBN).

The instruments set out the matters that Telstra's Migration Plan must cover and the manner in which the Migration Plan must deal with those matters. These instruments replace two previous instruments made in 2011. 

Telstra's Migration Plan supports its structural separation by outlining the steps the company must take to disconnect voice and broadband services on its copper and hybrid fibre-coaxial (HFC) networks in the course of migrating customers to the fixed-line NBN. Telstra is required to update the plan for the MTM rollout model.

The new instruments were developed in consultation with Telstra and NBN Co and were released for public consultation in December 2014. The Government gave careful consideration to each of the issues raised in the submissions, including concerns about information security arising from Telstra's potential use of confidential information, Telstra's potential role in design, construction and maintenance of the NBN, industry costs and HFC arrangements.

While all submissions were considered, some comments went beyond the statutory scope of the Migration Plan, did not recognise other existing regulatory measures or did not reflect the terms of the agreements between the parties. Other comments represented opinions about the effectiveness of existing measures which do not reflect the Government's view.  

Addressing a number of the key concerns:

  • Telstra and NBN Co's handling of information is a critical issue in realising the competition objectives of the Government's NBN reforms. The approach to Telstra's information handling for fibre-to-the-premises connections will not be changed under the revised Migration Plan. Consistent with the Government's policy announcement of 16 December 2014, it is intended that information security for other MTM technologies will be addressed in a number of ways, including by the imposition of a new licence condition requiring NBN Co to share rollout related information with all retail service providers in an equitable and non-discriminatory manner, the continuation of the restrictions on use of information by Telstra under the Structural Separation Undertaking and contractual provisions in the Definitive Agreements which restrict Telstra's misuse of information.

  • Competition concerns about Telstra's role in planning, design and construction activities for the MTM NBN are not able to be addressed through the Migration Plan, which deals only with migration. The ACCC will have the opportunity to assess the planning, design and construction contracts that may be negotiated between Telstra and NBN Co under its usual competition practices. In addition, the revised Migration Plan Principles continue to require that the Migration Plan prohibits Telstra from carrying out marketing where it undertakes activity at the premises of an end user who is not a Telstra retail customer.

  • Calls for the Migration Plan to allow for the possible declaration of Telstra's HFC services are not supported. Industry has not sought declaration of Telstra's HFC services in the past.  In the timetable for the MTM NBN rollout there would be insufficient time for other retail service providers to develop retail products in respect of both Telstra's HFC services and the NBN HFC network.

  • Finally, a limited number of submissions expressed concern that the Definitive Agreements permit Telstra to use all of the augmented HFC network constructed by NBN Co in circumstances where other retail service providers are not entitled to do so.  Telstra does not have a general right under the revised Definitive Agreements to use the augmented HFC network before other retail service providers.  Instead, Telstra has a limited right to access lead-ins constructed by NBN Co within Telstra's existing HFC footprint.  In accessing those lead-ins Telstra will be no better off than if it had built the additional lead-ins itself.

Importantly, industry is also involved in developing a Migration Assurance Process, which will enable a uniform industry-wide approach to migrating consumers to the NBN. This process recognises that ensuring a positive migration experience is not only the responsibility of NBN Co and Telstra, but also other industry participants, particularly other retail service providers to support service continuity for consumers in the transition to the NBN. 

The Government is confident the revised Migration Plan, together with an effective Migration Assurance Process, will ensure the transition to the NBN is smoother for consumers.

The final instruments are available at: www.communications.gov.au/broadband/national_broadband_network

Date:  Tuesday, 27 January 2015

Media contact:

David Bold: 0427 784 451

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