Lawyers representing Vodafone, the Australian Competition and Consumer Commission and Telstra appeared in Federal Court in Sydney yesterday in a fight over the ACCC’s inquiry into mobile roaming.
The ACCC in May released its draft decision on mobile roaming. The competition watchdog said it was disinclined to declare a mobile roaming service. Declaring a service would allow it to regulate the conditions of access to telcos’ infrastructure in regional parts of Australia where there is reduced competition between mobile carriers.
Vodafone has come out strongly in favour of introducing regulated roaming, which could allow it to piggyback off competitors’ mobile infrastructure in regional Australia, while Optus and Telstra have opposed the idea.
Regulated roaming would be “unambiguously bad” for rural and regional Australia, Telstra CEO Andrew Penn said earlier this year. Vodafone, by contrast, has argued that the size of Australia and its low population density mean that many parts of the country are unlikely to support duplicate infrastructure and that roaming would boost competition.
Following the ACCC’s draft decision, Vodafone in June filed a Federal Court action against the commission. Telstra and Optus are both entering appearances opposing Vodafone.
Vodafone’s primary argument is that the ACCC erred in its inquiry into the issue by not detailing the specific service that it was proposing to declare and it has asked the court to quash the draft decision.
“It has not complied with the mandatory requirement for conducting such an inquiry, being that it be about a proposal to make a declaration,” Vodafone’s counsel, Noel Hutley SC, argued in court yesterday.
The ACCC when considering whether to declare a service is required to consider the long-term interests of end-users (LTIE). However, “you can’t undertake an LTIE [assessment] without a particular thing in mind,” Hutley argued.
Counsel for ACCC argued that it was not required to know the “ideal specified service” it may eventually declare at the start of any particular inquiry. “The ACCC doesn’t have to start with a proposal; it can develop a proposal” after receiving submissions during the course of an inquiry, the ACCC argued.
It would be “bizarre” for the ACCC to identify one specific permutation of mobile roaming to inquire into if it turned out that none would serve the LTIE. The ACCC argued that a public inquiry could commence merely with a discussion paper.
“Of course, sometimes the general inquiry will show… the whole general idea is not a good one,” the ACCC argued.
The ACCC indicated it intends to proceed with issuing a final decision on roaming in mid to late October.
Telstra began its oral submissions yesterday, with the telco continuing its appearance this morning. Optus will also deliver arguments today.