Judgement reserved in Telstra underground duct access pricing dispute

Judgement has been reserved in the Telstra (ASX: TLS) case versus Australian Competition and Consumer Commission (ACCC), Vocus Communications (ASX: VOC) and iiNet (ASX: IIN) subsidiaries as Telstra continues to maintain that it acted in accordance with its underground duct access pricing contract.

Judgement has been reserved for a court sitting later in 2014.

The dispute dates back to 2013 when Vocus Fibre, iiNet's Adam Internet and Chime Communications appealed the underground access price to the ACCC.

Presiding at the New South Wales Federal Court today, Justices Besanko, Middleton and Griffiths heard arguments from lawyers acting on behalf of Telstra, Vocus and the ACCC.

The court heard that Telstra was entitled to increase the underground duct access pricing 12 per cent over the consumer price index (CPI) under its contract with Vocus.

Telstra’s defence team also pointed out that in clause 63 of the <i>Telecommunications Act</i>, the telco can make price increases within a 12 month period.

Justices Besanko, Middleton and Griffiths asked Mr Archibald, representing Telstra, what the telco would do if its appeal was dismissed and court costs needed to be paid.

“We shouldn’t have to pay the ACCC’s costs,” Archibald replied.

The original dispute went to court in January 2014 after the ACCC determined that it had jurisdiction to act as arbitrator in the dispute.

At the time, a Telstra spokesman said the price increase was applied under the standard terms of a wholesale contract with the ISPs.

In March, Justice Flick rejected Telstra’s argument that the ACCC had no jurisdiction to arbitrate the dispute and ordered the telco to pay the costs of the respondents.

ACCC chairman Rod Sims said the watchdog organisation welcomed the clarification of its jurisdiction to arbitrate access disputes.

"The arbitration of these disputes will now proceed. As the arbitrations are conducted in private, the ACCC will not be making any further public comment," he said in a statement during March.

An iiNet spokesperson said the ISP would now cooperate with the ACCC in an attempt to end the long-running dispute over fair and reasonable access to the "incumbent’s legacy network".

However, in April, Telstra lodged a formal appeal in the NSW Federal Court.

At the time, a Telstra spokeswoman told Computerworld Australia that it was appealing the judgement because it disagreed with the decision by Justice Flick.

“We are seeking clarification on some important points relating to our contractual relationship with these customers,” the spokeswoman said.

“We have acted in accordance with our contract and as such we believe there are no grounds for the dispute.”

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