GENERAL DISTRIBUTION
FEDERAL COURT OF AUSTRALIA
[2000] FCA 1161
FOXTEL MANAGEMENT PTY LTD & ANOTHER
V
THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
SUMMARY
In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a brief summary to accompany the reasons for judgment that are to be delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment. This summary is only intended to assist in understanding the main issues arising and the principal conclusions reached by the Court, and is thus necessarily incomplete.
18 August 2000
GENERAL DISTRIBUTION
FEDERAL COURT OF AUSTRALIA
[2000] FCA 1161
FOXTEL MANAGEMENT PTY LTD & ANOTHER
V
THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
SUMMARY OF REASONS FOR JUDGEMENT GIVEN ON 18 AUGUST 2000
This is a summary of the judgment of the Full Court in an appeal that was heard together with a number of related appeals, in which judgment is also given today. Those appeals have raised several important and previously unconsidered questions as to the meaning and operation of some of the provisions of Part XIC of the Trade Practices Act 1974 (Cth) (“the TPA”).
The appellants are related to parties that operate a ‘pay TV’ business in Australia known as ‘FOXTEL’. That business uses the Telstra Broadband Cable Network in order to broadcast pay TV programs to subscribers. The appellants are two related FOXTEL entities.
The present appeal revolves around a matter of construction or interpretation of certain terms in the Telecommunications Act 1997 (Cth) as these are used in the TPA. Part XIC of the TPA establishes a national telecommunications access regime. The TPA provides that the ACCC, in accordance with the terms of the TPA, may declare what are defined as carriage services (and related services) to be ‘declared services’. By two procedures undertaken in 1997 and 1999 (pursuant to the relevant legislation), the ACCC declared that the analogue subscription television (pay TV) carriage service in question, which included Telstra’s national cable network and the FOXTEL broadcast and operating system, was a ‘declared service’. The TPA provides that telecommunications ‘carriers’ and ‘carriage service providers’ who provide such declared services are required to comply with ‘standard access obligations’ in relation to those services. The term ‘carriage service provider’ is defined in the Telecommunications Act.
The appellants, during the course of the related litigation, sought a declaration of the Court that neither of them was a ‘carriage service provider’ within the meaning of that term under the relevant legislation, and so were not required to comply with the standard access obligations of Part XIC.
The trial judge held that, as the suppliers of the service known as “FOXTEL subscription television service”, the two appellants together constitute a ‘carriage service provider’ within the meaning of the relevant legislation. The effect of this would be that they are required to comply, in certain circumstances, with the access obligations of Part XIC.
The appellants both appealed this finding at the same time as other appeals were brought in related proceedings. The ACCC cross-appealed in relation to the form of the trial judge’s order. The Full Court (Justices Beaumont, Moore and Gyles) has today delivered a joint judgment in which the appellants’ appeal is dismissed (along with the ACCC’s cross-appeal), so that the original order stands, viz, the appellants are ‘carriage service providers’ for the purposes of the relevant legislation.
