Under the new regulatory settings, developers are still able to choose their own provider to install telecommunications infrastructure, however, if the telecommunications infrastructure provider is also contracted to connect premises within the development to that infrastructure, that provider will now be obliged to act as the default wholesale service provider for the development (with an obligation to connect every premises in the development). That provider will also be required to ensure the telecommunications services in the development meet minimum service standards. If a developer does not appoint a telecommunications infrastructure provider to this role, nbn Co will be the default provider in nbn rollout regions and neighbouring regions, regardless of the size of the development.

What has changed?

The Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 (Cth) introduced a statutory infrastructure provider (SIP) regime which, for the first time in Australia, creates the equivalent of a universal broadband service guarantee, an obligation to supply basic broadband services to all premises in new developments.

Telstra is no longer the default telecommunications infrastructure provider for developments of 100 lots or less. However, Telstra still retains its universal service obligation at the retail level for standard telephone services.

Other changes are designed to increase competition in the sector. The legislation is consistent with the federal government’s revised Telecommunications In New Developments (TIND) policy, which took effect on 1 September 2020. Most significantly, the revised TIND policy supports providers overbuilding and duplicating available infrastructure, even nbn Co.

Introduction of a Statutory Infrastructure Provider (SIP) regime – what does this mean for developers?

Where a developer has an agreement in place (or enters into an agreement) for telecommunications infrastructure to be provided to each premises in a development and the work under that agreement will be completed after 1 July 2020, the telecommunications infrastructure provider becomes the Statutory Infrastructure Provider (SIP) for the development.

If no other commercial agreement is in place, nbn Co will become the SIP. At first nbn will be the default SIP only in areas served by its network (fixed, wireless or satellite). However, once the nbn is declared built and fully operational, nbn Co will be the default SIP in all areas across Australia.

What are the SIP’s obligations?

The SIP is required to:

• notify the relevant agreement with a developer to the Australian Communications and Media Authority (ACMA) within specified time frames
• connect all premises in a development to their telecommunications network
• supply wholesale services to retail carriage services providers to support the provision of broadband and voice services (except where the SIP uses satellite).

The SIP obligations are technology neutral (meaning the SIP can choose which technology it will offer to fulfil its obligations), however a SIP must provide infrastructure and offer wholesale services that support broadband services with at least 25 Mbps peak download transmission speed and at least 5 Mbps peak upload transmission speed.

The services must also support voice calls (although where the SIP supplies services using satellite, it is not obliged to support voice calling).

There is no requirement to ensure that wireless (mobile) coverage is available in a development.

The Minister for Communications has powers to make further standards, rules and benchmarks that can be expected to expand the requirements for the services a SIP must provide.

Otherwise, the ACMA will monitor and enforce SIP obligations under the regime.