Hutchison 3G Australia Public submission to the Commission regarding proposed changes to the RAF RKR's

Transcription

1 Hutchison 3G Australia Public submission to the Commission regarding proposed changes to the RAF RKR's Table of Contents 1. Introduction 1 2. Executive Summary 1 3. Commercial-in-confidence 1 4. Timing 2 5. Proposals for additional reporting 4 6. The reporting requirements 7 1. Introduction Hutchison 3G Australia Pty Ltd (Hutchison) welcomes the opportunity to respond to the Australian Competition and Consumer Commission's (the Commission's) discussion paper of September 2008 regarding proposed changes to the regulatory accounting framework (RAF) record-keeping rules (RKRs). The Commission has indicated to Hutchison that it intends to notify Hutchison under clause 5(1) of the RAF, resulting in the revised RKRs applying to Hutchison. 2. Executive Summary Hutchison: 1. expects to be in a position to commence its first reporting period on 1 January 2010; 2. submits that the RAF should be amended so that it is consistent with the Corporations Act 2001 (Cth) and international accounting standards; 3. does not object to the extension of the RAF to include MTAS and 3G services; and 4. does not support the expansion of the RAF to include reporting of international mobile roaming or mobile data, as these additional reporting requirements go well beyond the purpose of the RKRs and would impose an unnecessary burden on mobile carriers. 3. Commercial-in-confidence Hutchison has redacted commercial-in-confidence material from this public version of its submission to the Commission. Where material has been redacted, it has been replaced by the symbol: [c-i-c material redacted]. jvgs A v Page 1

2 4. Timing 4.1 The need for certainty The cost to Hutchison of establishing new automated reporting systems necessary to comply with the RAF will be considerable. Hutchison therefore requires the Commission to provide greater clarity as to when Hutchison's first reporting period will begin. For the reasons set out below, Hutchison requests that its first reporting period does not commence before 1 January The rules governing timing In essence the RKRs apply to a carrier when the Commission notifies the carrier that it is subject to the RKRs. 1 Under the RAF, the first report a carrier is required to lodge relates to the first complete reporting period starting after the RKRs commence application to a carrier. 2 The Commission may alter this first reporting period by notification in writing. 3 There are two reporting periods for a carrier: the first six months of the financial year and the second six months of the financial year. 4 Carriers must lodge with the Commission a report covering each six monthly period, as well as a full year report covering the entire financial year. 5 A complete reporting period is therefore a full financial year. The financial year is that applying in respect of the individual carrier. 6 Hutchison's financial year is 1 January to 31 December. 4.3 Possible timing for Hutchison There are two factors which will affect the commencement of Hutchison's reporting under the RAF. These are: (a) (b) the date on which the Commission notifies Hutchison that the RAF applies to Hutchison; and the date on which the RAF is amended to include 3G services. 1 See: the Australian Competition and Consumer Commission "Telecommunications Industry Regulatory Accounting Framework (Record-keeping rules)" s5(1) 2 (Record-keeping rules)" s5(3) 3 (Record-keeping rules)" s5(4) 4 (Record-keeping rules)" s14(1)(a) 5 (Record-keeping rules)" s14(1) 6 See: The Australian Competition and Consumer Commission "Telecommunications Industry Regulatory Accounting Framework (Record-keeping rules)" s3(1); Corporations Act 2001 (Cth) ss 9 and 323D jvgs A v Page 2

3 4.4 Hutchison's first reporting period Given the expected time and cost of reconfiguring Hutchison's internal reporting systems, and the significant penalties for non-compliance, 7 Hutchison is currently scoping the necessary revisions to its reporting systems. Subject to the comments in section 4.5 below, Hutchison expects to be in a position to commence its first reporting period on 1 January Alignment with of the RAF with recognised accounting standards In order to minimise the regulatory burden on carriers, it is important the Commission amend the RAF so that it is consistent with the Corporations Act 2001(Cth), Australian International Financial Reporting Standards (AIFRS), and the International Accounting Standards (IAS). 8 Hutchison is keen to assist the Commission with this at a practical level. Where the Commission intends to amend the RAF to make it consistent with these standards, and Hutchison strongly advocates such an approach, Hutchison's first reporting period should not begin until after the RAF is amended. Otherwise Hutchison will expend considerable time and resources reconfiguring its internal systems to comply with an obsolete reporting regime. 7 The TPA imposes significant penalties on carriers, and on individuals, for failing to comply with the RKRs (see: Trade Practices Act 1974 (Cth) Part XIB Division 7). For example, if a person makes a record of any matter or thing in such a way that it does not correctly record the matter or thing, in purported compliance with a requirement imposed by the RKRs, that person is guilty of an offence punishable on conviction by imprisonment for a term not exceeding six months (Trade Practices Act 1974 (Cth) s151bv). 8 See section 6 below jvgs A v Page 3

4 5. Proposals for additional reporting 5.1 The Commission's proposals The Commission proposes to amend the RAF to: (a) (b) (c) require specific reporting on the mobile terminating access service (MTAS) to aid in the identification of the cost of supplying the MTAS on different networks and by different Mobile Network Operators (MNOs); 9 insert technology specific references to services provided on mobile networks into the RAF (to introduce specific 2G and 3G reporting); 10 obtain more detailed reporting on international mobile roaming; 11 and (d) provide more detailed reporting on mobile data usage The legislation The Trade Practices Act 1974 (Cth) (the TPA) provides that the Commission must not exercise its powers so as to require the keeping or retention of records unless the records contain, or will contain, information that is relevant to: (a) (b) (c) (d) (e) (f) ascertaining whether the competition rule has been, or is being, complied with; or ascertaining whether tariff filing directions have been, or are being, complied with; or the operation of Part XIB of the TPA; or the operation of Part XIC of the TPA (which deals with access); or the operation of Division 3 of Part 20 of the Telecommunications Act 1997 (Cth) (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or the operation of Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) (which deals with regulation of Telstra's charges) The Australian Competition and Consumer Commission ''Discussion paper on proposed changes to the regulatory accounting framework record-keeping rules' September 2008 at The Australian Competition and Consumer Commission ''Discussion paper on proposed changes to the regulatory accounting framework record-keeping rules' September 2008 at The Australian Competition and Consumer Commission ''Discussion paper on proposed changes to the regulatory accounting framework record-keeping rules' September 2008 at The Australian Competition and Consumer Commission ''Discussion paper on proposed changes to the regulatory accounting framework record-keeping rules' September 2008 at Trade Practices Act 1974 (Cth) s151bu(4) jvgs A v Page 4

5 5.3 The purpose of the RAF The power to impose RKRs was conferred on the Commission in The legislative intention was clear: the Commission needed such powers to assist it to determine whether conduct was anti-competitive. The information published by the Commission allowed market participants to provide advice or comments to the Commission, and facilitated negotiations under the access regime by providing all parties to those negotiations with a common information base. 15 In creating a more transparent regulatory market, it was thought that the specific problem posed by the vertical integration of Telstra's wholesale and retail divisions could be addressed. 16 The fact the RAF only applies to carriers that supply or use a declared service is consistent with the primary focus of the RKRs being to facilitate effective access regimes. 17 Neither international mobile roaming nor mobile data usage is the subject of an access declaration. Therefore it is unclear how the reporting of international mobile roaming or mobile data usage would serve the legislative purpose of the record keeping regime. Reporting of this information would provide little insight into whether any carrier was acting anti-competitively, since there is no obligation on any carrier to provide these services to another carrier. 5.4 Minimising red tape The RAF requirements impose a significant compliance cost on carriers. Given this cost, the Commission should only impose RKRs where they are clearly necessary in order for the Commission to fulfil its statutory duties. This is consistent with the Federal Government's stated aim of minimising regulatory red tape. For example, the Federal Minister for Finance and Deregulation stated earlier this year that the Federal Government is seeking to ' ensure new regulation is enacted only where absolutely necessary and at minimum costs to consumers and business.' 18 Similarly, Senator Stephen Conroy, now the Minister for Broadband, Communications and the Digital Economy, stated in 2006 that: ten years of regulatory creep in the Australian telecommunications sector has created large swathes of overlapping, ineffective and unnecessarily duplicative regulation in the Australian sector. The costs of ineffective red tape affect Australian consumers. These costs go straight to the bottom line of their telecommunications bills. These costs reduce the pool of funds that 14 Trade Practices Amendment (Telecommunications) Act 1997 (Cth) - Act 58 of Telecommunications Bill 2002 Explanatory Memorandum at Telecommunications Bill 2002 Explanatory Memorandum at (Record-keeping rules)" s5(1) 18 The Hon Lindsey Tanner MP, Minister for Finance and Deregulation, 'Relieving the burden on business Labor's deregulation agenda' Address to the Sydney Institute, Sydney, 26 February 2008 (available at: jvgs A v Page 5

6 Australian telecommunications companies can use to invest in new infrastructure and new services for Australian consumers." Hutchison's view In principle Hutchison does not object to the extension of the RAF to include MTAS and 3G services. However, as explained in section 6 below, Hutchison considers it is important that the form of the reporting is commercially reasonable. Hutchison does not, however, support the expansion of the RAF to include reporting of international mobile roaming or mobile data. These additional reporting requirements go well beyond the purpose of the RKRs, and would impose an unnecessary burden on mobile carriers: (a) International mobile roaming The proposed requirements to collect data pertaining to international mobile roaming would require fundamental changes to the way data is currently captured by Hutchison's third party service providers. These third parties may not be prepared to undertake the necessary system changes without charging Hutchison for the potentially very significant additional costs. Hutchison is unaware of how long it would take third party service providers to make the necessary changes, and whether it is even possible for the third party service providers to capture the relevant data. (b) Mobile data usage Hutchison is currently investigating whether it is technically able to report on both standalone mobile data services and/or bundled mobile data services. Hutchison does not believe it is technically feasible at present to separate the data services into the elements outlined in the proposed new service usage reporting 20 without significant capital expenditure and delays to revenue accretive projects which would materially affect Hutchison's results as forecast to the market. Furthermore, this data is highly commercially sensitive and Hutchison therefore strongly opposes any extension of the RAF to include mobile data usage. [c-i-c material redacted] 19 Stephen Conroy, Address to the Australian Telecommunications Users Group conference, Sydney, 7 March 2006 (available at: 20 See: The Australian Competition and Consumer Commission ''Discussion paper on proposed changes to the regulatory accounting framework record-keeping rules' September 2008 at jvgs A v Page 6

7 6. The reporting requirements 6.1 The form of reporting Hutchison submits that the form of reporting required by the Commission under the RKRs should conform with the form of reporting required by ASIC under the Corporations Act 2001 (Cth), and under the AIFRS and the IAS. To do otherwise, would impose an unreasonable burden on business. Hutchison currently complies with two reporting regimes: it provides half-yearly and annual reports to the ASIC (which comply with ASIC's accounting standards); and it provides half-yearly and annual reports to its parent company Hutchison Whampoa Ltd, which is incorporated in Hong Kong and listed on the Hong Kong Stock Exchange, in order for Hutchison Whampoa Ltd to publish consolidated group reports which comply with international accounting standards. Hutchison submits that, as much as possible, the requirements imposed by the Commission under the RAF should conform with accounting principles contained in the Corporations Act 2001 (Cth) and international accounting standards. Otherwise the RKRs will impose conflicting reporting rules for information which Hutchison already provides to ASIC. For example, the Capital Adjusted Income Statements 21 are not in a format that is consistent with either the AIFRS or the IAS, which require a profit or loss statement to be classified according to either nature or function. Further, the RAF requires additional disclosures, such as the Weighted Average Cost of Capital Report, 22 which is not aligned with either AIFRS or IAS. The RAF also prescribes accounting treatments that are to be followed which differ to those followed by Hutchison under both AIFRS and IAS. For example, the RAF prescribes the methodology for depreciation within network expenses. 23 Finally, the RAF prescribes allocation methods which are not aligned with the way Hutchison manages its business. This will require Hutchison to make considerable adjustments to its audited financial results, resulting in considerable additional costs to Hutchison's auditors to comply with the RAF (Record-keeping rules)" s8 22 (Record-keeping rules)" s12 23 (Record-keeping rules)" Schedule 3(c) 24 As required by the Australian Competition and Consumer Commission "Telecommunications Industry Regulatory Accounting Framework (Record-keeping rules)" s18. jvgs A v Page 7

8 6.2 The data to be collected Hutchison currently does not collect or collate a large amount of the data which is required to be provided to the Commission under the RKRs. [c-i-c material redacted] jvgs A v Page 8