TPG Telecom and Optus are at odds over the extent to which confidential information the ACCC used to deny a spectrum and network sharing deal between Telstra and TPG can be tested as part of a review.
The ACCC’s December decision to deny the Telstra-TPG deal is partially based on “internal documents and sworn evidence” from Optus and its parent Singtel, which was “sufficiently credible for the ACCC to attach weight to.”
Due to its nature and source, none of that evidence was made public by the ACCC.
But with a Competition Tribunal review of the ACCC’s decision now underway, there is a clear stalemate over how this information from Optus and Singtel can and should be treated.
TPG Telecom argues it should have access to the material and the opportunity to test - and potentially refute - it.
The extent to which refuting it is allowable is undetermined.
“TPG (including its legal advisors) did not have an opportunity to review or comment upon some of the material the ACCC relied upon in making its determination, including portions of the evidence and submissions submitted by Singtel Optus,” TPG said. [pdf]
“It appears that the ACCC placed significant weight on some of that material.
“In those circumstances, TPG may seek to adduce new information, documents or evidence in response to that material.
“That is a matter that cannot be determined until TPG and its legal advisers have received all of that material in unredacted form and had an opportunity to consider it.”
TPG said it had been given a “tranche” of materials on January 25.
TPG also said the ACCC relied on witness statements, examinations and interviews with Optus and Singtel personnel, which again it could not dispute.
“It may be appropriate for the Tribunal to provide for a limited number of witnesses to be called and questioned in the proceedings, so that the Tribunal is able to assess the weight to be given to that evidence,” TPG’s lawyers argued.
In a countering submission [pdf], Optus argues the Tribunal should refuse TPG’s demands.
“It appears that Telstra and TPG contemplate that they should have a broad opportunity to adduce additional evidence (including presumably expert evidence) and cross-examine Optus witnesses, on the asserted footing that the treatment by the ACCC of certain confidential information meant that some matters relied upon by the ACCC were not known to Telstra and TPG previously,” Optus said.
“That approach should not be accepted.”
Optus argued the material should remain confidential.
It also said that Telstra or TPG should not be allowed to access the material in order to produce “fresh rounds of evidence”.
Optus was also against allowing cross-examination of its personnel.
“That is not to say that there could not be some legitimate scope for an application to adduce ‘new’ evidence,” Optus added.
“It is merely to observe that the Tribunal should be cautious about proceeding on the footing that there would be broad scope for new affidavits, new expert reports and cross-examination, in the course of the present proceedings.”
