12 November 2019
Mr M. Wilkinson (MG)
Sent via email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Ref: 1920/35.02
Dear Mr Wilkinson
nbn FOI request
I am writing in relation to your request to
nbn under the
Freedom of Information Act 1982 (
FOI Act).
FOI Request Terms
On 30 October 2019,
nbn’s FOI Team received a request from “MG” (
the Applicant) via the “Right to Know”
website. In that request, the Applicant sought:
On 13 September 2017, NBNCo received a written Question on Notice from the Joint Standing Committee on
the National Broadband Network (45th Parliment) (sic):
"There are concerns for consumers who are in theory located in fixed line areas but are too far from the node
to guarantee the minimum speeds. In some of these cases nbn is assigning these consumers to satellite
technology. Due to potential interference these consumers may not be able to keep ADSL services. It is
understood that POTS is compatible but that ADSL and FTTN cause interference issues. After the ‘co-existence’
period the legacy ADSL services may have to be switched off to ensure FTTN services can function. This would
leave these premises with Sky Muster as their only potential fixed line service. Other consumers with Sky
Muster are able to keep their ADSL. "
"3. What is the future of Telstra fixed line services in this scenario which share the same lines that nbn is using
to deliver FTTN/B services? How many lines are estimated to be in this situation and what is the impact likely
to be?"
The answer provided by NBNCo states:
"As at August 2017, approximately 1,500 services outside the fixed-line footprint are potentially impacted by
this scenario. "
In the Joint Standing Committee on the National Broadband Network hearing held on 1 August 2017, NBN CEO
Mr Bill Morrow stated nbn was still looking into the options to address this impact:
“there is a rare circumstance where a home that is served by satellite, while the majority of the 400,000 can
still elect to stay on the ADSL through the Telstra network if it's available there, these few will not be able to.
That's where we are looking to see if that's reasonable and fair, and what the other options are.”
Can you please provide information/documents on the following:
As at August 2017:
1. A breakdown of the number of premises by State (please also include Suburb name if readily available in the
data) of the approximately 1500 premises that were identified by NBNCo outside the fixed line footprint that
will not be able to stay on the ADSL network.
As at the time of this request (30 October 2019):
a. The number of premises outside the fixed line footprint that will not be able to stay on the ADSL network.
b. For (a) above, how many of this number comprises of the "original" ~1500 premises identified by NBNco in
2017? (Have any of the "original" 1500 premises been moved off Satellite to alternate technologies? Have any
more premises that will not be able to stay on the ADSL network been identified since August 2017?)
c. For (a) above, a breakdown of the number of premises by State (please also include Suburb name if readily
available in the data).
Background information and findings
Following receipt of the Applicant’s request, I undertook discussions with relevant subject matter experts within
nbn in relation to the terms of your FOI application and statements made by
nbn’s past CEO, Mr Bill Morrow
during Senate Hearings in 2017. In that regard, I was informed that
nbn has never made definitive statements
that certain premises “will not be able to stay on the ADSL network”. In addition, I was informed of the following:
• Potentially Impacted Premises – Mr Morrow’s comments referred to an estimated 1500 premises outside
nbn’s fixed line footprint (
FLF) that may have been potentially impacted (
Potentially Impacted Premises)
by the possible degradation of legacy ADSL services that may co-exist with
nbn™ network connections.
• Link to Long Copper Tails – The Potentially Impacted Premises would have been located outside the FLF
and, in the main, would have had long copper lines. These are commonly referred to as long copper tails
(
LCTs). It is my understanding that the 2017 estimate of the 1500 Potentially Impacted Premises
corresponds to an estimate of premises with LCTs outside the FLF.
• Inside FLF – There is a mandatory discontinuation of legacy services, such as ADSL, (roughly) 18 months
after a premises has been declared ready-for-service (
RFS) inside the FLF.
• Outside FLF –
o There is no mandatory discontinuation of legacy services.
o Legacy services may co-exist with
nbn services after a premises has been declared RFS and even
after being connected to an
nbn™ broadband access network service.
o
nbn does not have control over the continuation of legacy services, such as ADSL.
o It is incumbent upon
nbn to ensure that premises (outside the FLF) have access to
nbn satellite or
fixed wireless services prior to retail service providers’ (
RSP) withdrawal of legacy ADSL services.
o However,
nbn is not responsible for discontinuing or terminating legacy services outside the FLF.
o Providing legacy services (outside the FLF) is a commercial matter for the legacy RSP.
• No testing or diagnostics, nor data –
nbn does not test or run diagnostics over legacy services, nor does
nbn collect related data. If faults exist with legacy ADSL products delivered over
nbn’s copper assets
outside the FLF,
nbn only becomes aware of such issues after an RSP has lodged a service incident with
nbn. At that point,
nbn would seek to rectify the fault.
No documents
I refer you to the points above. In particular,
nbn does not actively collect data regarding the viability of legacy
services, such as ADSL, outside the FLF. As such,
nbn holds no documents within the terms of your request. In that
regard, I also refer you to
section 24A of the FOI Act.
nbn’s FOI Team spent approximately five hours reviewing and considering relevant information, making enquiries
of relevant
nbn personnel and drafting this FOI decision. This is in addition to the time spent searching for
documents, which were ultimately found not to exist.
nbn has determined not to impose any charges in relation
to this FOI request per the
Freedom of Information (Charges) Regulations 2019 (Cth).
An FOI decision may be reviewed, subject to sections 53A and 54 of the FOI Act. Please refer to the Office of the
Australian Information Commissioner’s (
OAIC) website at the following
link, which provides details about your
rights of review and other avenues of redress under the FOI Act.
nbn’s Commercial Activities Carve-out The FOI Act provides members of the public with a general right of access to specific documents, subject to
certain exemptions. P
er section 15(2) of the FOI Act, a valid FOI request must provide such information
concerning the requested document/s as is reasonably necessary to enable
nbn to identify them, among other
things. In circumstances where the scope of an FOI application is unclear,
nbn will neither formally acknowledge,
nor commence the processing of such requests. If you wish to make further FOI requests, I would ask that you
review in detail the following paragraphs and links concerning
nbn’s commercial activities carve-out (
the CAC).
nbn’s commercial activities are carved-out from the application of the FOI Act pe
r section 7(3A) and
Part II of
Schedule 2 of the Act. Documents that relate to
nbn’s current or future commercial activities are not subject to
the operation of the FOI Act and would be exempt from release. The following link provid
es general background
document (GB Document) concerning
nbn’s CAC. The GB Document refers to two Australian Information
Commissioner Reviews that considered
nbn’s commercial carve-out –
Internode Pty Ltd and NBN Co Ltd [2012]
AICmr 4 and th
e Battersby and NBN Co Ltd [2013] AICmr 61. In practical terms, the CAC ensures that
nbn is not exposed to disadvantage in the marketplace and similar
commercial environments. The CAC also enables
nbn to function as any other commercial player in Australia’s
highly competitive telecommunications industry. If
nbn were required to release commercially-related
information under the FOI regime, this would undermine
nbn’s ability to protect the company’s valuable
intellectual property, negotiate competitive contracts, develop products and services, grow market share and
manage its staff, among other adverse effects. Disclosure of commercially-related information would also
undermine
nbn’s capacity to generate revenues, while driving up rollout costs. Ultimately, Australian taxpayers
would have to bear those cost increases and other potentially adverse consequences.
In addition, I would flag the fact that
nbn has previously refused FOI requests for documents and information
concerning
nbn’s contractual relations with its business and delivery partners, as well as RSPs. In addition,
nbn has made previous FOI decisions refusing access to information regarding prospective rollout data, quality
assurance processes and related data regarding
nbn™ broadband access network connections. Similarly,
nbn has
refused access to information about business decisions/cases regarding changes to access technology.
FOI Processing Period and Charges
The statutory period for processing an FOI request is 30 days, subject to any suspension of the processing period or
extension of the time period for deciding the application. Please also note that
nbn may impose processing charges
in relation to FOI requests. For your reference, processing charges for FOI applications are set by regulation and
may be found at
nbn’s website – and, in particular,
its FOI page. The hyperlink below outlines
nbn’s approach to
processing charges: Submission to the OAI
C Charges Review. More information about charges under the FOI Act is
set out in part 4 of the OAI
C FOI Guidelines.
Disclosure Log
nbn is required to publish documents provided to FOI applicants within 10 working days after release. The
information you seek may be published in full (as released to you) or with some additional redactions as per section
11C of the FOI Act. For further information, please visit
the Disclosure Log on
nbn’s website.
Yours sincerely
David Mesman
General Counsel
FOI, Privacy & Knowledge Management
