Vodafone Hutchison ‘s bid to overturn the competition regulator’s ruling governing access to mobile phone networks in regional areas has been dismissed by the Federal Court.
The telecommunications company had taken legal action against the n Competition and Consumer Commission after the regulator in May said it would not “declare” wholesale domestic roaming.
If the ACCC had made the declaration, it would have forced Telstra, Optus and Vodafone to let rival carriers access their entire networks at regulated prices.
In particular, this would have allowed the telco’s access to Telstra’s extensive regional network in areas where they didn’t have their own coverage.
Telstra had long previously said it was dedicated to providing mobile networks nationally – provided the current regulatory settings remained.
Vodafone claimed consumers would collectively save more than $650 million a year if Telstra were forced to share its regional network and drop its prices to remain competitive.
It asked the Federal Court to review the ACCC’s inquiry process, which it did not believe had been carried out properly as a specific domestic roaming service was not defined by the regulator.
This was rejected on Thursday by Justice John Griffiths, who said he did not accept “that such specificity at the outset of the public inquiry process is necessary to give effect to statutory provisions relating to public consultation”.
“It is revealing that Vodafone availed itself of the opportunity to make submissions as invited by the ACCC in the discussion paper without any complaint that it was disabled from doing so because of the alleged absence of specificity in the concept of a wholesale domestic mobile roaming service,” he said in his judgment.
“Nor did Vodafone complain, prior to the commencement of these proceedings, that the ACCC lacked power to conduct the public inquiry which occurred. This is not a case where the subject matter of the public inquiry was expressed at such a high and imprecise level of generality that the public consultation process was meaningless.”
Vodafone chief strategy officer Dan Lloyd said the company was considering its next steps.
“Our initial reaction is one of concern about the potential implications for the clarity and robustness required of the ACCC when making important decisions which affect millions of ns,” Mr Lloyd said in a statement.
“Despite the court’s decision, there is clearly still a problem that needs to be solved. The status quo is hurting regional .
“Taxpayers have largely funded Telstra’s regional mobile network, but people in these areas do not have the mobile coverage and choice they want, need and deserve.”
He said the company still believed domestic roaming would be the country’s best opportunity to boost coverage and competition.
ACCC chairman Rod Sims was “pleased” with the outcome, saying the regulator needed “significant flexibility” to undertake inquiries.
Mr Sims had previously said there was “insufficient evidence” a declaration would improve competition overall.
“We are extremely conscious of the fact that in regional, rural and remote areas, mobile coverage and choice of service provider are vital issues,” he said.
“However, the effect declaration would have on competition in regional, rural and remote areas is uncertain. While declaration may deliver choice for more consumers, declaration has the potential to make some consumers worse off.”
A Telstra spokesman said the decision confirmed that the ACCC inquiry was valid and lawful.
“It also confirms the ACCC’s decision in October not to regulate mobile roaming which was good news for customers in regional and gave us the certainty we needed to continue our significant investment to ensure more people, businesses and communities across regional can benefit from a world-leading mobile network,” he said.
Final costs are still to be decided.