Telecommunications (ACCC Inquiry into Access to Regional Towers and Associated Infrastructure) Direction 2022

The Telecommunications (ACCC Inquiry into Access to Regional Towers and Associated Infrastructure) Direction 2022 is a Commonwealth legislative instrument made under subsection 496(1) of the Telecommunications Act 1997. Its role is specific. It directs the ACCC to hold a public inquiry under Division 3 of Part 25 of that Act.

The inquiry had to cover two broad subjects. First, access to towers and associated passive and active infrastructure provided by telecommunications and other infrastructure providers in regional, rural, remote and peri-urban areas within Australia, where that infrastructure can be used in supplying mobile telecommunications and other radiocommunications services. Second, the feasibility of temporary mobile roaming services during natural disasters and other such emergencies.

That means this instrument is mainly about setting the scope and requirements of an ACCC inquiry. It is not, by itself, a direct access regime, a pricing code, or a rule that automatically requires co-location or emergency roaming. Its practical importance comes from the fact that it tells the ACCC what to investigate, what matters it must consider, and who it must consult.

The instrument uses broad concepts, so the potentially affected group is wider than major mobile carriers alone. The inquiry concerns towers and associated passive and active infrastructure provided by telecommunications and other infrastructure providers. A note to the direction says this includes specialist tower operators, neutral host operators, telecommunications carriers, owners of other suitable infrastructure, utilities, and emergency service organisations.

The definition of towers is also broad. It includes NBN towers, radio and television broadcasting towers, and other suitable towers or similar structures that could be used to improve mobile coverage. So a business may be relevant even if it does not think of itself as a tower company in the ordinary commercial sense.

The instrument also explains that likely users include telecommunications carriers, telecommunications service providers, utilities, emergency service organisations, and other operators of radiocommunications equipment. In practice, a business can be in scope because it owns infrastructure that others may want to use, because it wants access to infrastructure owned by someone else, or because it is part of the broader regional communications environment the ACCC was required to consult.

The main trigger point is not that the instrument creates a direct new duty for every business. The trigger is that the ACCC was directed to conduct a public inquiry and consult a wide range of stakeholders. If your business provides relevant infrastructure, uses it, or has practical experience of coverage gaps or emergency communications issues, you may be drawn into consultation, submissions or requests for information.

Another trigger point is where your business has commercial arrangements for access to towers or related infrastructure. The direction specifically requires the ACCC to consider existing commercial and other fee arrangements, the considerations that contribute to those arrangements, and the effectiveness of current commercial and regulatory settings in enabling access. Businesses with access agreements, co-location arrangements or internal pricing models should expect those topics to be central.

A further trigger point is any sale, separation or restructuring of tower assets. The direction expressly tells the ACCC to consider the implications of mobile carriers divesting tower and associated infrastructure businesses, including the scope of access offered, terms and conditions, fee arrangements, and the considerations behind those arrangements.

The direction sets out a detailed list of matters the ACCC had to have regard to in conducting the inquiry. This list is important because it shows the exact commercial and operational issues the inquiry was required to test.

On infrastructure access, the ACCC had to consider the costs of providing towers and associated passive and active infrastructure that can be used by third-party telecommunications providers and others. It also had to consider the costs of accessing land to provide that infrastructure. These are practical issues for regional deployment because land access, site conditions and supporting infrastructure can materially affect whether access is commercially viable.

The ACCC also had to consider existing commercial and other fee arrangements under which third-party telecommunications providers and other likely users can access the relevant towers and infrastructure. The direction goes further by requiring attention to the considerations that contribute to those fee arrangements, including the costs of providing access as distinct from the costs of providing the towers and associated infrastructure themselves.

The inquiry also had to look at whether current commercial and regulatory arrangements are effective in enabling access. It was not limited to asking what the market currently does. It was directed to assess whether those arrangements actually work in practice for access seekers and infrastructure providers.

Another required topic was provider decision-making. The ACCC had to examine the kinds of matters, including the impact of costs, that providers consider when deciding whether to provide towers and associated infrastructure and whether to provide access to them. It also had to consider how those matters may affect the provision of greater mobile coverage.

A distinct part of the direction concerns temporary mobile roaming services during natural disasters and other such emergencies. The instrument does not require roaming to be offered. Instead, it requires the ACCC to examine whether temporary roaming is feasible.

The direction says the ACCC must have regard to the feasibility of providing temporary mobile roaming services, including the technical feasibility, the support systems and business processes required, and the associated time and costs expected in providing those services. This is a practical and operational inquiry, not just a high-level policy question.

For carriers, infrastructure operators and emergency-related organisations, this means the inquiry was directed to test whether emergency roaming could work in real conditions, what systems would be needed to support it, and what time and cost burdens would be involved. For regional businesses and communities, this part of the instrument matters because it recognises emergency connectivity as a specific issue requiring structured examination.

The formal legal obligations in the instrument fall mainly on the ACCC. The ACCC was directed to hold the inquiry, to commence it no later than 1 July 2022, to have regard to the listed matters, and to consult specified groups. The instrument itself does not impose a general direct duty on ordinary businesses to provide access, change pricing, or implement emergency roaming.

Even so, businesses should not treat the instrument as irrelevant. In practice, it identifies the topics on which businesses may need to explain themselves. If you own relevant infrastructure, you should be able to describe what infrastructure you provide, what access is available, how fees are set, what technical or safety constraints apply, and what land access issues affect deployment. If you seek access, you should be able to explain where current arrangements create barriers, delays or excessive cost.

For businesses involved in tower transactions or restructures, the direction makes divestment impacts a specific inquiry topic. It is sensible to keep clear records of how access scope, terms and pricing were set before and after any transaction affecting tower assets.

If your business is likely to be consulted or affected commercially, the most useful preparation is documentary readiness. The direction focuses on costs, fee arrangements, access terms, provider decision-making and emergency feasibility. Those are all areas where unsupported assumptions can create problems.

Infrastructure owners should make sure access documents are current and internally consistent. Access seekers should keep records of requests, delays, pricing proposals and technical objections. Businesses involved in regional deployment should also keep practical records of land access costs and constraints, because the direction specifically identifies those costs as a matter the ACCC had to consider.

For emergency planning, businesses should be able to explain what systems and processes would be needed if temporary roaming or temporary shared use were considered. The instrument does not require a business to have a particular emergency roaming model in place, but it does make feasibility, systems, processes, time and cost relevant topics.

The instrument was made on 25 March 2022 and registered on 31 March 2022. Under its commencement clause, the whole instrument commenced the day after registration, which means 1 April 2022.

The direction required the ACCC to commence the public inquiry no later than 1 July 2022. A note to the direction states that, under section 505 of the Telecommunications Act 1997, the ACCC must prepare a report setting out its findings and give a copy to the Minister. The note also states that the ACCC is expected to provide the report as soon as reasonably practicable, or otherwise within 12 months from the commencement of the inquiry.

Before relying on this page for a current compliance position, businesses should check the current status of the ACCC inquiry, any report issued, and whether later policy, regulatory or legislative developments have changed the practical landscape for tower access or emergency roaming.

The safest way to read this instrument is as an inquiry-setting measure with commercial and regulatory consequences, rather than as a direct conduct rule. It tells you what issues the ACCC was required to investigate and therefore what issues may attract scrutiny, consultation or later reform attention.

For infrastructure owners, the key question is whether your access terms, pricing approach and technical conditions are clear and can be explained. For access seekers, the key question is whether you can identify concrete barriers in current arrangements. For utilities, emergency service organisations and other infrastructure owners, the key question is whether your structures or systems may be relevant to improved mobile coverage or emergency communications. For regional businesses and communities, the instrument confirms that mobile coverage and emergency connectivity were treated as matters requiring formal public inquiry.

If your business is making decisions about regional infrastructure access, co-location, emergency planning or tower transactions, you should read this instrument together with current ACCC materials and any later developments, not in isolation.