International Trade Law Implications of Australia's National Broadband Network

By Voon, Tania; Mitchell, Andrew D. | Melbourne University Law Review, August 2011 | Go to article overview

International Trade Law Implications of Australia's National Broadband Network


Voon, Tania, Mitchell, Andrew D., Melbourne University Law Review


[Australia's National Broadband Network has come under intense domestic scrutiny and is also being closely monitored by international stakeholders. However, the focus on local political and legal issues obscures a broader potential problem: ensuring compliance with Australia's obligations under the Worm Trade Organization agreements and bilateral trade arrangements. In an attempt to reveal the nuances of international trade law and its relationship to the government's plans, this article highlights several areas of possible complication, including the creation of NBN Co as a government business enterprise, the identification of points of interconnection to NBN Co 's network, and the policy goal of achieving uniform national wholesale pricing for NBN Co's services. International trade law deserves greater consideration and more transparent discussion in the implementation of Australia's National Broadband Network, which may also offer lessons for other countries pursuing analogous projects.]

CONTENTS

   I Introduction
  II NBN Co as a Government Business Enterprise
 III The NBN Offering: Wholesale Layer 2 Bitstream Services
  IV Interconnection to the NBN
     A Policy Debate and NBN Co's Original Proposal
     B NBN Co's Revised Proposal and Its Reception
     C Potential for a Domestic Claim on Interconnection
     D ACCC Recommendation and NBN Co's Final Proposal
     E Australia's Interconnection Obligations Regarding NBN Co
       1 Reference Paper s 2.1 : Applicability of the Interconnection
         Obligations
       2 Reference Paper s 2.2: Ensuring Interconnection
       3 Modifications to the Pol List, the New Zealand Experience
         and Reference Paper s 5
   V Defining Universal Service and Classifying Broadband
     A Reference Paper s 3: Right to Maintain Universal Service
       Obligation
     B Scope of Universal Service and Related Classification
       Difficulties
     C The United States Experience: Characterising Broadband
  VI Achieving a Nationwide Network through NBN
     A Uniform National Wholesale Pricing
     B Levelling the Playing Field, or Preventing Cherrypicking
 VII Exceptions to GATS Obligations
VIII Conclusion

I INTRODUCTION

On 7 April 2009, Australia's federal government announced plans to establish a company to build and operate the National Broadband Network ('NBN') to deliver superfast broadband services to homes and businesses across Australia. (1) The government would be the majority shareholder of the company (investing up to A$43 billion over eight years), joining with private investors, and ultimately selling down its interest five years after the NBN becomes operational. (2) The declared objectives of the NBN included increasing competition and investment, improving communication speed and quality for businesses and rural Australians in particular, and raising Australia's international ranking with respect to telecommunications indicators such as broadband take-up, accessibility of digital content, and competition in the Internet Service Provider ('ISP') sector. (3) However, the truth and validity of these objectives has been queried from several quarters, particularly in view of the enormous expense involved, (4) and even more so following the devastating floods in Queensland in late 2010 that have imposed substantial recovery costs on the country. (5)

In announcing the NBN, then Prime Minister Kevin Rudd went so far as to describe Australia as a 'broadband backwater' (6) on the basis of its allegedly low speeds and high costs compared to many other countries of the Organisation for Economic Co-Operation and Development ('OECD'). (7) Against this background, according to the Australian Competition and Consumer Commission ('ACCC'), the proposed NBN offered

   the potential to start a new wave of infrastructure investment,
   technological change and product innovation in the
   telecommunications sector. Its announcement ushers in arguably the
   most important policy initiative in the telecommunications sector
   in both metropolitan and regional Australia since competition began
   in the industry more than a decade ago. … 

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