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TELECOMMUNICATIONS ACT 1997 - SECT 577J

Limits on allocation of certain spectrum licences to Telstra

  (1)   If the excluded spectrum regime applies to Telstra, the ACMA must not allocate a spectrum licence to Telstra if the licence relates to a designated part of the spectrum.

Note:   For excluded spectrum regime, see section   577GA.

  (2)   However, the rule in subsection   (1) does not apply if:

  (a)   both:

  (i)   an undertaking given by Telstra is in force under section   577A; and

  (ii)   the undertaking is covered by subsection   (2A); and

  (b)   either:

  (i)   an undertaking given by Telstra is in force under section   577C; or

  (ii)   a declaration is in force under subsection   (3); and

  (c)   either:

  (i)   an undertaking given by Telstra is in force under section   577E; or

  (ii)   a declaration is in force under subsection   (5).

Note 1:   Section   577A deals with undertakings about structural separation.

Note 2:   Section   577C deals with undertakings about hybrid fibre - coaxial networks.

Note 3:   Section   577E deals with undertakings about subscription television broadcasting licences.

  (2A)   This subsection covers a section   577A undertaking if:

  (a)   the following conditions are satisfied:

  (i)   the undertaking requires Telstra to give the ACCC a draft migration plan;

  (ii)   in accordance with the undertaking, Telstra has given the ACCC a draft migration plan;

  (iii)   the ACCC has approved the draft migration plan under section   577BD, 577BDA, 577BDB or 577BDC; or

  (b)   the undertaking does not require Telstra to give the ACCC a draft migration plan.

  (3)   The Minister may declare, in writing, that Telstra is exempt from the requirement to have an undertaking under section   577C.

  (4)   The Minister must not make a declaration under subsection   (3) unless the ACCC has made a decision to accept an undertaking given by Telstra under section   577A, and:

  (a)   if the undertaking is in force--the Minister is satisfied that the undertaking is sufficient to address concerns about the degree of Telstra's power in telecommunications markets; or

  (b)   if the undertaking is not in force--the Minister is satisfied that, subject to the undertaking coming into force, the undertaking is sufficient to address concerns about the degree of Telstra's power in telecommunications markets.

  (4A)   A declaration under subsection   (3) comes into force:

  (a)   if paragraph   (4)(a) applies--when the declaration is made; or

  (b)   if paragraph   (4)(b) applies--when the undertaking comes into force.

  (4B)   If:

  (a)   paragraph   (4)(b) applies to a declaration; and

  (b)   as a result of subsection   577AA(7) or (8), this Act (other than subclause   76(4) of Schedule   1) has effect as if the undertaking had never been accepted by the ACCC;

this Act has effect as if the declaration had never been made by the Minister.

  (5)   The Minister may declare, in writing, that Telstra is exempt from the requirement to have an undertaking under section   577E.

  (6)   The Minister must not make a declaration under subsection   (5) unless the ACCC has made a decision to accept an undertaking given by Telstra under section   577A, and:

  (a)   if the undertaking is in force--the Minister is satisfied that the undertaking is sufficient to address concerns about the degree of Telstra's power in telecommunications markets; or

  (b)   if the undertaking is not in force--the Minister is satisfied that, subject to the undertaking coming into force, the undertaking is sufficient to address concerns about the degree of Telstra's power in telecommunications markets.

  (6A)   A declaration under subsection   (5) comes into force:

  (a)   if paragraph   (6)(a) applies--when the declaration is made; or

  (b)   if paragraph   (6)(b) applies--when the undertaking comes into force.

  (6B)   If:

  (a)   paragraph   (6)(b) applies to a declaration; and

  (b)   as a result of subsection   577AA(7) or (8), this Act (other than subclause   76(4) of Schedule   1) has effect as if the undertaking had never been accepted by the ACCC;

this Act has effect as if the declaration had never been made by the Minister.

  (6C)   A declaration made under subsection   (3) or (5) cannot be revoked.

  (7)   A declaration made under subsection   (3) or (5) is not a legislative instrument.

  (8)   In this section:

"telecommunications market" has the same meaning as in Part   XIB of the Competition and Consumer Act 2010 .


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