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Accessing the Foxtel/Telstra Network: an Open and Shut Case

Accessing the Foxtel/Telstra Network: an Open and Shut Case. Communications Research & Strategy Forum 2005, Sydney. Chronology (1): Pay Television Delivery. Chronology (2): Access-related Events. Chronology (3): Access-related Events.

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Accessing the Foxtel/Telstra Network: an Open and Shut Case

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  1. Accessing the Foxtel/Telstra Network: an Open and Shut Case Communications Research & Strategy Forum 2005, Sydney

  2. Chronology (1): Pay Television Delivery

  3. Chronology (2): Access-related Events

  4. Chronology (3): Access-related Events

  5. How did the Foxtel/Telstra pay tv network achieve closed access? • Unrestricted business entry • Telstra faced none of the restrictions then prevalent in the US and UK

  6. How did the Foxtel/Telstra pay tv network achieve closed access? • Unrestricted business entry • Minimal competitive threat • Telstra’s ‘telephony defence’ neutralised Optus network • Foxtel/Optus programming agreement neutralised Optus content • Only broadcasters sought pay tv access, not Telcos, and both defeated • No Telco or ISP ever sought cable modem access

  7. How did the Foxtel/Telstra pay tv network achieve closed access? • Unrestricted business entry • Minimal competitive threat • Delayed access • Insufficient analogue channel capacity • Persistent legal and regulatory delays whilst market position consolidated, competitors wasted away and analogue technology replaced by digital

  8. How did the Foxtel/Telstra pay tv network achieve closed access? • Unrestricted business entry • Minimal competitive threat • Delayed access • Dictated terms of access • Arbitration prolonged until ready for access undertakings • Analogue agreement useless • Digital agreement competitively neutered • ACCC worn down by labyrinthine process

  9. What political and legal opportunities were exploited? • Carrier Associates Direction (1995 - 1997) • Optus subterfuge in avoiding common carrier obligations • Government caught over a barrel by Optus threat not to invest in alternative telephony infrastructure • Digital technology would alleviate capacity constraint by around 1997 anyway?

  10. What political and legal opportunities were exploited? • Carrier Associates Direction (1995 - 1997) • Protected Contractual Right (1996/97 – 2001/2) • Telstra and Foxtel signed Broadband Cooperation Agreement July 1996; lobbied new Howard government for protection from third party access > TPA amendment • Applicable if a contract in force as at 13 September 1996 • All court cases based on PCR were defeated, but delay the prime goal

  11. What political and legal opportunities were exploited? • Carrier Associates Direction (1995 - 1997) • Protected Contractual Right (1996/97 – 2001/2) • Anticipatory Exemption (2002 – 2004?) • PC & government: reduced regulatory uncertainty would foster new telecommunications investment • Telecommunications Competition Bill: Access providers can seek exemption from standard access obligations even prior to investment being made > ACCC granted orders • Seven Network appealed to Competition Tribunal and set aside orders

  12. Conclusions • Cable television has been the most significant new wireline access network investment since the PSTN. • Governments have never really committed to third party access. • Regulatory process for access is now labyrinthine and wide open to gaming. • Fibre to the Home, the next (& last) wireline access network, is highly likely to remain closed to third party access > a monopolist’s dream!

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