Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 (Cth)

Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 No. 47, 2020 An Act to amend legislation relating to telecommunications, and for other purposes Contents 1 Short title 2 Commencement 3 Schedules 4 Transitional—election to be bound by deemed standard functional separation undertaking 5 Modelling of Regional Broadband Scheme Schedule 1—Layer 2 bitstream services Part 1—Amendments Competition and Consumer Act 2010 Telecommunications Act 1997 Part 2—Transitional provisions Schedule 2—Local access lines Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 Competition and Consumer Act 2010 Legislation (Exemptions and Other Matters) Regulation 2015 Telecommunications Act 1997 Schedule 3—Statutory infrastructure providers etc. Part 1—Amendments Division 1—Service provider determinations Telecommunications Act 1997 Division 2—Other amendments Competition and Consumer Act 2010 Telecommunications Act 1997 Part 2—Repeals Carrier Licence Conditions (NT Technology Services Pty Ltd) Declaration 2014 Carrier Licence Conditions (OptiComm Co Pty Ltd) Declaration 2013 Carrier Licence Conditions (Pivit Pty Ltd) Declaration 2013 Carrier Licence Conditions (Urban Renewal Authority Victoria t/a Places Victoria Pty Ltd) Declaration 2014 Schedule 4—Funding of fixed wireless broadband and satellite broadband Competition and Consumer Act 2010 Telecommunications Act 1997 Telecommunications (Consumer Protection and Service Standards) Act 1999 Schedule 5—NBN Co transparency National Broadband Network Companies Act 2011 Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 No. 47, 2020 An Act to amend legislation relating to telecommunications, and for other purposes [Assented to 25 May 2020] The Parliament of Australia enacts: 1 Short title This Act is the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 5 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 25 May 2020 2. Schedule 1 The day after this Act receives the Royal Assent. 26 May 2020 3. Schedule 2 The day after the end of the period of 3 months beginning on the day this Act receives the Royal Assent. 25 August 2020 4. Schedule 3, Part 1, Division 1 The day after this Act receives the Royal Assent. 26 May 2020 5. Schedule 3, Part 1, Division 2 The earlier of: 1 July 2020 (a) a single day to be fixed by Proclamation; and (paragraph (b) applies) (b) 1 July 2020. 6. Schedule 3, Part 2 Immediately after the commencement of the provisions covered by table item 5. 1 July 2020 7. Schedules 4 and 5 The day after this Act receives the Royal Assent. 26 May 2020 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules (1) Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. (2) The provisions of the Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 amended or inserted by this Act, and any other provisions of that instrument, may be varied by an instrument made under subsection 63(5) of the Telecommunications Act 1997, or revoked by an instrument made under subsection 63(6) of that Act (see subsection 13(5) of the Legislation Act 2003). (3) The provisions of the Legislation (Exemptions and Other Matters) Regulation 2015 amended or inserted by this Act, and any other provisions of that instrument, may be amended or repealed by regulations made under section 62 of the Legislation Act 2003 (see subsection 13(5) of the Legislation Act 2003). 4 Transitional—election to be bound by deemed standard functional separation undertaking If: (a) in accordance with section 4 of the Acts Interpretation Act 1901, a determination is made under subsection 151B(1) of the Telecommunications Act 1997 before the commencement of Schedule 2 to this Act; and (b) a corporation is included in a class of corporations specified in the determination; the corporation may, before the commencement of that Schedule, give an election to be bound by the determination. 5 Modelling of Regional Broadband Scheme Report (1) The Australian Competition and Consumer Commission (ACCC) must prepare a report in relation to the Regional Broadband Scheme that includes: (a) the estimates referred to in subsection (3); and (b) such other matters (if any) as the ACCC considers relevant. (2) The purpose of the report is to provide updated costings in relation to the amount of the base component specified in paragraph 12(1)(a) of the Regional Broadband Scheme Charge Act, using the same model and methodology that was previously used to determine that amount but taking into account changes to inputs and assumptions that have occurred since that amount was first determined. (3) The report must include an estimate of each of the following: (a) the total losses that have been incurred by NBN Co in relation to fixed wireless broadband and satellite broadband matters during the period beginning on 1 July 2009 and ending on 30 June 2020; (b) the total of the reasonable losses likely to be incurred by NBN Co in relation to fixed wireless broadband and satellite broadband matters during the period beginning on 1 July 2009 and ending on 30 June 2040 (the total expected net losses); (c) the amount that the base component for a month (within the meaning of the Regional Broadband Scheme Charge Act) would be required to be in order for the Commonwealth to receive a total amount by way of charge imposed by that Act that would offset the total expected net losses, if it were assumed that paragraph 9(1)(b) of that Act had not been enacted; (d) the total of the reasonable losses likely to be incurred by NBN Co in relation to fixed wireless broadband and satellite broadband matters during the period beginning on 1 July 2020 and ending on 30 June 2040 (the total expected net forward facing losses); (e) the amount that the base component for a month (within the meaning of the Regional Broadband Scheme Charge Act) would be required to be in order for the Commonwealth to receive a total amount by way of charge imposed by that Act that would offset the total expected net forward facing losses, if it were assumed that paragraph 9(1)(b) of that Act had not been enacted; (f) the total expected number of chargeable premises by reference to which charge is to be calculated under the Regional Broadband Scheme Charge Act during the financial year beginning on 1 July 2025; (g) such other matters (if any) as the ACCC considers relevant. Note: For paragraph (f), see section 11 of the Regional Broadband Scheme Charge Act in relation to how numbers of chargeable premises are used in calculating charge under that Act. (4) The report must specify the aggregated data inputs and the modelling assumptions upon which the estimates referred to in subsection (3) were determined. (5) In preparing the report, the ACCC: (a) must use the methodology and model that was used by the Department of Communications and the Arts' Bureau of Communications Research for the report entitled NBN non‑commercial services funding options—Final report March 2016; but (b) must, in doing so, update the inputs and assumptions of the methodology and model to reflect changes that have occurred since the publication of that report. (6) Without limiting paragraph (5)(b), the following are changes that must be taken into account in updating the inputs and assumptions: (a) changes in the inputs for estimating the total number of chargeable premises by reference to which charge is imposed by the Regional Broadband Scheme Charge Act; (b) changes in the inputs for build costs in relation to fixed wireless broadband and satellite broadband matters; (c) changes in the inputs for estimating future capital expenditure requirements in relation to fixed wireless broadband and satellite broadband matters. (7) In preparing the report, the ACCC must assume that Division 6 of Part 3 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 had not been enacted. Note: That Division deals with charge offset certificates. (8) Before the end of the 150‑day period beginning when this section commences, the ACCC must: (a) give the Minister the report; and (b) make the report available on the ACCC's website. (9) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 5 sitting days of receiving it. Use of the word "Regional" (10) To avoid doubt, the use of the word "Regional" in this section does not limit: (a) subsection 80(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999; or (b) subsection 13(3) of the Regional Broadband Scheme Charge Act. Definitions (11) In this section: fixed wireless broadband and satellite broadband matters means the matters referred to in paragraphs 13(3)(a) to (d) of the Regional Broadband Scheme Charge Act. Minister means the Minister administering the Telecommunications Act 1997. NBN Co has the same meaning as in the National Broadband Network Companies Act 2011. Regional Broadband Scheme means the scheme embodied in: (a) Part 3 of the Telecommunications (Consumer Protection and Service Standards) Act 1999; and (b) the Regional Broadband Scheme Charge Act. Regional Broadband Scheme Charge Act means the Telecommunications (Regional Broadband Scheme) Charge Act 2020. Schedule 1—Layer 2 bitstream services Part 1—Amendments Competition and Consumer Act 2010 1 Section 152AC Repeal the following definitions: (a) definition of designated superfast telecommunications network; (b) definition of Layer 2 bitstream service; (c) definition of national broadband network; (d) definition of superfast carriage service. 2 Section 152AGA Repeal the section. 3 Subsections 152AL(3C) to (3H) Repeal the subsections. 4 Subsection 152AL(8CA) Repeal the subsection. 5 Subsections 152ALA(1) and (5) Omit "(other than a declaration mentioned in subsection 152AL(3C))". 6 Subsection 152ALA(5A) Repeal the subsection. 7 Subsection 152AO(4) Repeal the subsection (including the note). 8 Sections 152ARA and 152ARB Repeal the sections. 9 Paragraph 152AZ(aa) Omit "152ARA, 152ARB,". 10 Paragraph 152BA(2)(aa) Omit "152ARA, 152ARB,". 11 Subsection 152BB(1AA) Repeal the subsection. 12 Subsection 152BC(4AA) Repeal the subsection. 13 Subsections 152BCB(4G) to (4J) Repeal the subsections. 14 Subsection 152BCB(5) Omit ", (4A) or (4G)", substitute "or (4A)". 15 Subsections 152BDA(4G) to (4J) Repeal the subsections. 16 Subsection 152BDA(5) Omit ", (4A) or (4G)", substitute "or (4A)". 17 Subsection 152BE(1B) Repeal the subsection. 18 Sections 152BEBE to 152BEBG Repeal the sections. 19 Section 152BEC Omit ", 152BEBC, 152BEBE and 152BEBF", substitute "and 152BEBC". 20 Subsection 152BED(2) Omit ", 152BEBC, 152BEBE and 152BEBF", substitute "and 152BEBC". 21 Subparagraphs 152CJH(a)(ia) and (ib) Repeal the subparagraphs. 22 Subparagraph 152CJH(a)(iii) Omit "and (4G) to (4J)". 23 Subparagraph 152CJH(a)(iv) Omit "and (4G) to (4J)". Telecommunications Act 1997 23A Section 7 (paragraph (a) of the definition of Layer 2 bitstream service) Repeal the paragraph, substitute: (a) a Layer 2 bitstream service (within the ordinary meaning of that expression); and 23B Section 7 (definition of Layer 2 bitstream service) Omit "this purpose, Layer 2", substitute "the purposes of determining the ordinary meaning of the expression used in paragraph (a), assume that Layer 2". 24 Part 7 Repeal the Part. 25 Subsection 349(16) (definition of local access line) Repeal the definition, substitute: local access line has the meaning given by section 349A. 26 After section 349 Insert: 349A Local access line (1) For the purposes of this Part, a local access line is a line that is part of the infrastructure of a local access network. (2) However, a line does not form part of a local access line to the extent that the line is on the customer side of the boundary of a telecommunications network. (3) For the purposes of this section, the boundary of a telecommunications network is to be determined in the same manner in which it is determined under section 22 for the purposes of sections 20, 21 and 30. (4) For the purposes of this section, local access network has the meaning generally accepted within the telecommunications industry. Part 2—Transitional provisions 27 Transitional—exemptions (1) If, immediately before the commencement of this item, an instrument was in force under subsection 141A(1) of the Telecommunications Act 1997, the instrument has effect, after the commencement of this item, as if: (a) it had been made under subsection 144(1) of that Act; and (b) each reference in the instrument to section 141 of that Act were a reference to section 143 of that Act. (2) If, immediately before the commencement of this item, an instrument was in force under subsection 141A(2) of the Telecommunications Act 1997, the instrument has effect, after the commencement of this item, as if: (a) it had been made under subsection 144(2) of that Act; and (b) each reference in the instrument to section 141 of that Act were a reference to section 143 of that Act. (3) If, immediately before the commencement of this item, an instrument was in force under subsection 141A(3) of the Telecommunications Act 1997, the instrument has effect, after the commencement of this item, as if: (a) it had been made under subsection 144(3) of that Act; and (b) each reference in the instrument to subsections 141(2) and (3) of that Act were a reference to subsection 143(2) of that Act. Schedule 2—Local access lines Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 1 Section 3 Repeal the section. 2 Subsection 4(1) Insert: designated commencement date means the date on which Schedule 2 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 commences. functional separation undertaking has the same meaning as in Part 8 of the Telecommunications Act 1997. 3 Subsection 4(1) (at the end of the definition of local access line) Add "(as that section stood immediately before the commencement of Schedule 2 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020)". 4 Subsection 4(1) (at the end of the definition of superfast carriage service) Add "(as that section stood immediately before the commencement of Schedule 2 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020)". 5 Section 5 Before "A carrier licence", insert "(1)". 6 Section 5 Omit "residential customers.", substitute: residential customers, and: (a) the network came into existence before the designated commencement date; and (b) the network has not been altered, upgraded or extended on or after the designated commencement date; and (c) no functional separation undertaking given by the carrier is in force. 7 At the end of section 5 Add: (2) A reference in paragraph (1)(c) to a functional separation undertaking given by a carrier is a reference to a functional separation undertaking given by the carrier either: (a) alone; or (b) jointly with one or more other persons. Competition and Consumer Act 2010 11 After paragraph 151BU(4)(da) Insert: (db) the operation of Part 8 of the Telecommunications Act 1997 (which deals with local access lines); or 12 After subparagraph 151BUA(2)(b)(iia) Insert: (iib) the operation of Part 8 of the Telecommunications Act 1997 (which deals with local access lines); or 13 After subparagraph 151BUB(2)(b)(iia) Insert: (iib) the operation of Part 8 of the Telecommunications Act 1997 (which deals with local access lines); or 14 After subparagraph 151BUC(2)(b)(iia) Insert: (iib) the operation of Part 8 of the Telecommunications Act 1997 (which deals with local access lines); or Legislation (Exemptions and Other Matters) Regulation 2015 15 Section 12 (table item 61, column headed "Legislative instrument", after paragraph (a)) Insert: (aa) the Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 made under subsection 63(2) of that Act; Telecommunications Act 1997 17 After subsection 69(4) Insert: (4A) Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI. Note: Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH and 151ZI are set out in Part 8 (local access lines). 18 After subsection 70(1) Insert: (1A) Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI. Note: Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH and 151ZI are set out in Part 8 (local access lines). 19 Before paragraph 70(5)(a) Insert: (aaa) the condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI; 20 After subsection 102(4) Insert: (4A) Subsection (1) does not apply to the rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI. Note: Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH and 151ZI are set out in Part 8 (local access lines). 21 After subsection 103(1) Insert: (1A) Subsection (1) does not apply to the rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI. Note: Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH and 151ZI are set out in Part 8 (local access lines). 22 After subsection 103(4E) Insert: (4F) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI. 23 Part 8 (heading) Repeal the heading, substitute: Part 8—Local access lines 24 Section 142 Repeal the section, substitute: 142 Simplified outline of this Part • A controller of a local access line (other than a line that is part of the infrastructure of the national broadband network) must not use the line to supply an eligible service to a person other than a carrier or a service provider, if: (a) the line came into existence, or was upgraded, on or after the designated commencement date; and (b) the line is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and (c) no functional separation undertaking is in force. • A controller of a telecommunications network (other than the national broadband network) must not use a local access line to supply an eligible service to a person other than a carrier or a service provider, if: (a) the line is part of the infrastructure of the network; and (b) the network came into existence, or was upgraded, on or after 1 January 2011, but before the designated commencement date; and (c) the network is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and (d) no functional separation undertaking is in force. 25 Section 142A (definition of alter) After "network", insert "or line". 26 Section 142A Insert: associate has the meaning given by section 152. business unit means a part of a corporation. close proximity has a meaning affected by section 162. corporation means a body corporate. customer interface means an interface for the purposes of: (a) ordering; and (b) provisioning; and (c) billing; and (d) service activation; and (e) fault rectification; in relation to the supply of local access line services. declared service has the same meaning as in Part XIC of the Competition and Consumer Act 2010. designated carriage service has the meaning given by section 142BD. designated commencement date means the date on which Schedule 2 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 commences. fixed‑line carriage service means a carriage service that is supplied using a line to premises occupied or used by an end‑user. functional includes organisational. functional separation undertaking means: (a) a standard functional separation undertaking; or (b) a joint functional separation undertaking. fundamental provision of a functional separation undertaking has the meaning given by subsection 151A(9) or 151C(9). joint functional separation undertaking means an undertaking under section 151C. local access line service means an eligible service supplied using a local access line. multi‑unit building means: (a) a building that has 2 or more units for occupation as a place of residence or business; or (b) a building in a complex, where each building has 2 or more units for occupation as a place of residence or business. residential customer has a meaning affected by section 161. retail business unit of a corporation means a business unit by which the corporation deals with the corporation's retail customers in relation to the supply of local access line services. retail customer means a customer other than a wholesale customer. retailer, when used in relation to a joint functional separation undertaking, means a person identified in the undertaking as the retailer, or one of the retailers, for the purposes of the undertaking. Note: See paragraph 151C(2)(a). 27 Section 142A (definition of small business customer) Repeal the definition. 28 Section 142A Insert: standard functional separation undertaking means an undertaking under section 151A. 29 Section 142A (paragraph (b) of the definition of superfast carriage service) Omit "more than 25 megabits per second", substitute "25 megabits per second or more". 30 Section 142A Insert: supply, in relation to a service, includes supply of the service by a corporation to itself. This definition does not apply to subsection 142C(2) or 143(2). unsatisfactory compliance record has a meaning affected by section 142BC. 31 Section 142A (definition of upgrade) After "network", insert "or line". 32 Section 142A Insert: wholesale business unit of a corporation means a business unit by which the corporation deals with its wholesale customers, and its retail business unit, in relation to the supply of local access line services. wholesale customer means a customer that is: (a) a carrier; or (b) a service provider. wholesaler, when used in relation to a joint functional separation undertaking, means a person identified in the undertaking as the wholesaler, or one of the wholesalers, for the purposes of the undertaking. Note: See paragraph 151C(2)(a). worker means an individual who is: (a) an employee; or (b) a contractor or subcontractor; or (c) an employee of a contractor or subcontractor. 33 At the end of Division 1 of Part 8 Add: 142B Functional separation undertaking given by a person A reference in this Part to a functional separation undertaking given by a person is a reference to a functional separation undertaking given by the person either: (a) alone; or (b) jointly with one or more other persons. 142BA Promotion of the long‑term interests of end‑users of carriage services and of services supplied by means of carriage services For the purposes of this Part, the question whether a particular thing promotes the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services is to be determined in the same manner as it is determined for the purposes of Part XIC of the Competition and Consumer Act 2010. 142BB Terms and conditions For the purposes of this Part: (a) a notional contract (however described) between a corporation's business units is to be treated as if it were an actual contract; and (b) any terms and conditions (whether or not relating to price or a method of ascertaining price) in such a notional contract are to be treated as if they were actual terms and conditions. 142BC Unsatisfactory compliance record For the purposes of this Part, the question of whether a person has an unsatisfactory compliance record in relation to functional separation is to be determined having regard only to: (a) any breaches by the person of functional separation undertakings given by the person, so long as the breaches occurred when the undertakings were in force; and (b) any contraventions by the person of section 143B, 151ZA, 151ZB, 151ZF, 151ZG, 151ZH or 151ZI. 142BD Designated carriage service (1) For the purposes of this Part, designated carriage service means: (a) if a carriage service is specified in an instrument under subsection (2)—that carriage service; or (b) otherwise—a Layer 2 bitstream service. (2) The ACCC may, by legislative instrument, specify a carriage service for the purposes of paragraph (1)(a). (3) The ACCC must not specify a carriage service under subsection (2) unless: (a) the carriage service enables end‑users to download communications; and (b) the download transmission speed of the carriage service is normally 25 megabits per second or more; and (c) the carriage service is supplied using a line to premises occupied or used by an end‑user; and (d) there is in force a declaration under subsection 152AL(3) of the Competition and Consumer Act 2010 that relates to the carriage service. 34 Before section 143 Insert: 142C Supply of eligible services to be on wholesale basis—lines that come into existence on or after the designated commencement date etc. Scope (1) This section applies to a local access line if: (a) the line is part of the infrastructure of a telecommunications network in Australia; and (b) the network is not the national broadband network; and (c) the line is used, or proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and (d) either: (i) the line came into existence on or after the designated commencement date; or (ii) the line was altered or upgraded on or after the designated commencement date, and as a result of the alteration or upgrade, the line became capable of being used to supply a superfast carriage service to residential customers in Australia. Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date). Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date). Note 3: For exemptions, see sections 143A to 151. Use of line (2) If a person (the first person): (a) is in a position to exercise control of the line; or (b) is an associate of a person who is in a position to exercise control of the line; the first person must not, on or after the designated commencement date, use the line, either alone or jointly with one or more other persons, to supply an eligible service unless the service is supplied to: (c) a carrier; or (d) a service provider. Note: For when a person is in a position to exercise control of a line, see section 155A. (3) Subsection (2) does not apply to the use of the line if a functional separation undertaking given by the first person is in force, unless: (a) the ACCC has given a notice under section 151W revoking the undertaking; and (b) the revocation has not taken effect; and (c) the line came into existence after the notice was given. Note 1: A functional separation undertaking relates to the supply of eligible services using a local access line, irrespective of when the line came into existence. Note 2: See also section 142B. Ancillary contraventions (4) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (2); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (2); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2); or (d) conspire with others to effect a contravention of subsection (2). Civil penalty provisions (5) Subsections (2) and (4) are civil penalty provisions. Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions. 35 Section 143 (heading) Repeal the heading, substitute: 143 Supply of eligible services to be on wholesale basis—networks in existence before the designated commencement date etc. 36 Paragraph 143(1)(b) Omit "or small business" (wherever occurring). 37 Subparagraph 143(1)(d)(i) After "2011", insert ", but before the designated commencement date". 38 Subparagraph 143(1)(d)(ii) After "2011", insert ", but before the designated commencement date,". 39 Subparagraph 143(1)(d)(ii) Omit "or small business" (wherever occurring). 40 Subsection 143(1) (note 2) Omit "144", substitute "143A". 41 Subsections 143(2) and (3) Repeal the subsections (including the penalty), substitute: Use of network (2) If a person (the first person): (a) is in a position to exercise control of the network; or (b) is an associate of a person who is in a position to exercise control of the network; the first person must not use the line, either alone or jointly with one or more other persons, to supply an eligible service unless the service is supplied to: (c) a carrier; or (d) a service provider. Note: For when a person is in a position to exercise control of a network, see section 155. (3) Subsection (2) does not apply to the use of the line if a functional separation undertaking given by the first person is in force, unless: (a) the ACCC has given a notice under section 151W revoking the undertaking; and (b) the revocation has not taken effect; and (c) the line came into existence after the notice was given. Note 1: A functional separation undertaking relates to the supply of eligible services using a local access line, irrespective of when the line came into existence. Note 2: See also section 142B. (4) Subsection (2) does not apply to the u