Tony Dooley

Case study: NBN Co v PIPE Networks [2015] NSWSC 475

Tony Dooley

30 April 2015

Telecommunications

Summary

 

In a case decided on 28 April 2015, PIPE Networks (PIPE) successfully defended NBN Co’s claim that PIPE engaged in misleading and deceptive conduct by representing that the carrier rights in Schedule 3 of the Telecommunications Act allowed PIPE to connect facilities to a building’s electricity supply and draw electricity without the building owner’s consent.¬† This decision is useful to any carrier that wants to use its carrier rights to roll out networks or install facilities requiring electricity.

 

Background

 

As part of its rollout of a Fibre to the Basement network, PIPE served notices on the owners of multi-tenanted dwelling units (MDUs) pursuant to Schedule 3 of the Act, which stated that PIPE was installing facilities in the MDU. Schedule 3 allows carriers to install low-impact facilities without the building owner’s consent, without a licence agreement, and without paying rent. PIPE’s notice stated that its facilities would be connected to the MDU and that it would pay $1/day to the building owner in compensation for the electricity used.

 

The relevant legislation

 

Schedule 3 grants carriers rights to inspect land, install low-impact facilities, and maintain facilities. There was no argument that PIPE had the right to install its facilities, the questions were whether it had the right to plug into the MDU’s electricity supply and use the MDU’s electricity.

 

The Court’s decision

 

The NSW Supreme Court considered that connection to electricity is a necessary part of a facility’s installation, comparing it to the installation of a washing machine which as a matter of course requires an electrical connection to work rather than just being placed in a laundry. The Court found that once the facility was installed, Schedule’s 3 maintenance provisions permit PIPE to use the MDU’s electricity. This decision was on the basis that clause 7(3)(c) of Schedule 3 states that maintenance of a facility includes ‘ensuring the proper functioning of the original facility’.

 

The impact of the decision

 

The need for an electrical connection has been viewed as an impediment to relying on Schedule 3 rights. This decision clarifies that it should not be and that if carriers have a right to install a facility then they also have a right to draw power for the facility from an available power supply, subject to paying for their electricity usage.

 

As well as obviously helping carriers installing fixed line networks and facilities, this could help carriers rolling out WiFi or other wireless networks, where for example they could draw power from sources such as buildings, light poles or electricity transmission assets.  There is potential that it could also be argued as a means to install and power facilities in data centres and possibly even exchange buildings.

 

A link to the case can be found here.

 

If you have any questions, please contact:

 

Tony Dooley | Partner | +61 3 9641 8713 | tdooley@tglaw.com.au