Vodafone loses mobile roaming fight against ACCC

The Federal Court has an rejected an attempt by Vodafone to challenge the Australian Competition and Consumer Commission’s decision to not introduce a regulated mobile roaming regime.

The ACCC last year launched its inquiry into whether a mobile roaming service should be declared. In May this year the ACCC issued a draft decision to not declare a roaming service; in October it confirmed that decision.

Declaring a mobile roaming service could have forced Telstra to open up its mobile network to rivals on default terms set by the ACCC. Telstra and Optus argued that the decision would have a negative impact on investment in mobile infrastructure in regional areas.

Vodafone filed its application for judicial review after the ACCC handed down its draft decision. Telstra and Optus appeared in court alongside the ACCC to oppose the application.

Vodafone’s application argued that the ACCC had erred in its inquiry process by not detailing the service it was proposing to potentially declare.

The telco’s application centred on the argument that the “ACCC’s failure to date to direct itself, or the public inquiry, to a 'specified' eligible service means that a valid public inquiry within the meaning of Pt 25 of the Telecommunications Act had not yet commenced or, alternatively, could not be concluded without legal error,” Justice Griffiths noted in his judgement, issued today.

Justice Griffiths found that Vodafone’s primary argument “sits uncomfortably with the breadth of the provisions in Pt 25 of the Telecommunications Act”.

The provisions in the act give the ACCC “considerable flexibility in initiating and conducting public inquiries, which is scarcely surprising having regard to what one would expect from the notion of an ‘inquiry’, which is intended to inform the ACCC’s decision-making.”

“Merely because it is essential that a declaration have a high and precise degree of specificity does not mean that the same specificity is required throughout the entire course of a Pt 25 public inquiry,” the judgement notes.

The judge called for the parties to seek agreement on the awarding of costs within 28 days.

“We respect the decision of the Federal Court, and we thank Justice Griffiths for his consideration of this matter,” Vodafone chief strategy officer Dan Lloyd said.

“We will review the judgement in detail, and consider our next steps.

“Our initial reaction is one of concern about the potential implications for the clarity and robustness required of the ACCC when making important decisions which affect millions of Australians.”

“Our domestic roaming campaign and subsequent legal action have always been about the best interests of regional Australia,” he added.

“Despite the court’s decision, there is clearly still a problem that needs to be solved. The status quo is hurting regional Australia.”

Domestic roaming remains “Australia’s best opportunity to boost coverage and competition in areas where it doesn’t currently exist.”

Copyright © 2017 IDG Communications, Inc.

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