Proposed legislation requiring the disclosure of carriers' commercially sensitive information brings the National Broadband Network one step closer

The Government's plan to start the rollout of its proposed $8 billion National Broadband Network, a fibre to the node ("FTTN") network, is gaining momentum with the introduction of a new bill to compel carriers to disclose commercial in confidence information. This information would enable organisations to submit responses to the Government's proposed Request for Proposal ("RFP") to build the Network.

An FTTN is a network that allows delivery of broadband services by using optical fibre to replace the usual copper local loop from a cabinet serving a neighbourhood of several hundred customers. Customers then use existing cables to connect the "last mile" from the optical fibre to their premises.

As the Network will be using existing telecommunications infrastructure, much of which is owned by Telstra, any proposals to build the Network would need to be based on existing infrastructure information. Accordingly, the Government has approached over twenty carriers requesting the voluntarily provision of certain infrastructure information to facilitate the design and cost of the proposed Network. While a number of carriers have agreed to provide such information, others have refused on the grounds that the information is commercially sensitive.

Accordingly, the Government has introduced the Telecommunications Legislation Amendment (National Broadband Network) Bill 2008 ("Bill"). The Bill proposes to amend the Telecommunications Act 1997 by introducing the following:

  • The making of a disallowable instrument specifying the particular information to be provided by specified carriers ("protected information"), the manner and the form in which the information is to be provided, and the time within which that information is to be provided.
  • Carriers will be given three business days to comment on the draft disallowable instrument.
  • Compliance with the disallowable instrument would become a condition of the carrier's licence (breach of a condition of a carrier licence could result in a fine of up to $10 million).
  • A disclosure scheme to ensure a carrier's protected information will only be disclosed under certain pre-conditions, including:
  • a complicated system of "entrusted officers" to whom a carrier's protected information could be disclosed;
  • the publication of a request for proposal ("RFP") in relation to the Network;
  • the recipient notifying the Government of its intention to respond to the RFP;
  • the recipient providing any information and meeting any conditions specified by the Minister in a determination;
  • the recipient complying with any requirements or conditions set out in the RFP; and
  • the proposed amendments will only operate for 12 months, to ensure that provision of protected information will not be a continuing obligation.

Responses to the proposed RFP will be considered by a panel of experts appointed by the Government in March this year, which consists of seven members. It is anticipated that the expert panel will be assisted by the Department of Broadband Communications and the Digital Economy, as well as other specialist advisers who will give specific support in relation to technical, legal and other matters.

Although it was originally anticipated that the Network tender would be awarded in June, it is now anticipated that the rollout of the Network will commence by the end of 2008, with some users being able to take advantage of the Network by the end of the year with the Network being switched on, according to the Minister, "street by street, suburb by suburb, town by town".

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