Telstra takes ACCC’s side in court battle with Vodafone

Telstra has confirmed that it intends to oppose an application for judicial review lodged by Vodafone Hutchison Australia in the Federal Court earlier this month.

Vodafone is challenging the Australian Competition and Consumer Commission’s inquiry process as the competition regulator works towards a decision on whether to declare a wholesale domestic mobile roaming service.

If the ACCC was to declare such a service, telcos such as Vodafone would potentially be able to access the mobile network infrastructure of Telstra to deliver services.

Vodafone has argued that mobile roaming would increase telco choice in regional areas; Telstra has argued that it would kill investment in regional infrastructure. The ACCC in May issued a draft decision that indicated it was not inclined to declare a service.

“Telstra has joined the judicial review application as we have a direct interest in the outcome of the ACCC’s mobile roaming declaration inquiry and intend to oppose VHA’s application,” a Telstra spokesperson told Computerworld.

Optus, too, is seeking to participate in the case, lodging an interlocutory application with the court.

Vodafone has argued that mobile roaming could save Australian consumers $658 million per year.

“That’s an extraordinary amount of money that could be staying in the wallets of consumers, instead of lining Telstra’s pockets with no added value,” Vodafone chief strategy officer Dan Lloyd said earlier this month.

“The benefits are so large that regulated domestic roaming is a ‘no-brainer’ for regional Australia.”

“We found the ACCC’s draft decision baffling, particularly since many of its comments strongly support the case for regulated domestic roaming,” the Vodafone executive said.

“We couldn’t agree more with the ACCC that roaming wouldn’t undermine Telstra’s incentives for expanding coverage, as taxpayers have been footing the bill for that for years. The ACCC also admitted that regional Australians are paying too much for mobile services.”

The crux of Vodafone’s legal argument is that the ACCC has failed to take into account a number of relevant considerations in its inquiry process. Vodafone’s application for judicial review argues that the ACCC has erred because in holding its public inquiry it has not “specified” the “eligible service” that it is considering declaring.

Vodafone argues that the ACCC as part of its inquiry process is required to provide a detailed description of a potential domestic mobile roaming service, which would define the scope of such a service. In the past, the ACCC has specifically set out the proposed service description that is the subject of the inquiry, Vodafone argues.

Prior to the draft decision of the competition regulator Vodafone “made a submission identifying a specified eligible service that should be considered for declaration, that submission has been ignored or rejected by the ACCC, and there is no reason to think that the position will change between the Draft Decision and the Final Decision,” the company’s application states.

The ACCC is required by law to take its draft decision into account when making its final decision, and for that reason the draft decision should be set aside, Vodafone states. The ACCC should be prevented from holding any public inquiry based on the draft decision, Vodafone argues.

The ACCC earlier this year emerged victorious from a Federal Court battle with Telstra. Telstra had challenged a decision by the commission to cut the prices the telco can charge for a range of its wholesale fixed-line services. In that case, TPG, Optus, Macquarie Telecom, MyNetFone and Telcoinabox took the ACCC’s side against Telstra.

Copyright © 2017 IDG Communications, Inc.

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