To Ripping off consumers and competition: Australia Says No

And so did the High Court today when it released it’s verdict on Telstra’s “The Castle” style legal action against the ACCC’s declaration and continuation of competition.

Telstra’s case was that the fair rates set by the ACCC for access to spectrum on a copper line, or access to a complete copper line was a compulsory acquisition of Telstra’s property, and they were not being paid just compensation.

In considering the case, it was revealed that legislation enacted in 1991 was in place before Telstra was even a corporation, and therefore, the legislation remaining in place doesn’t constitute acquisition of property (well duh, Telstra acquired it after the legislation was enacted).

So, with that in mind Telstra is left with nothing else to follow, as the High Court isn’t a court of appeals, and essentially, what the judges deliver is what is set in stone.

Telstra never had a case, and I originally wrote about that months ago, when the issue was prominent last year, that the action taken was purely an act of preventing competition, and that it would never actually pass.

Telstra are just now, one step closer to finding themselves on the vexatious litigator list. Nice move.

Will Irving, Telstra’s Council, must be a bit mixed at the moment, surely. He gets paid a lot to represent Telstra, but at the same time, in the public presence looks like a complete fool for being silly enough to even attempt such a case.

Telstra didn’t actually succeed with anything in their action, they lost the case, are ordered to pay cost, and competition have been carrying on with the declared rates by the ACCC. What exactly did Telstra do to improve things for shareholders? Nothing. Did they piss away money needlessly? Yep. Was that money shareholder profit money? Probably.

Telstra naturally tried to spin the decision and even resorted to misrepresenting the High Court decision, posting that ‘”Buy, not build” says High Court’ as the content of one of its releases. I’m sure of course the judges of the High Court would not at all appreciate Telstra taking a judgement made on a case that the judges found to be ‘synthetic and unreal’, out of context, and completely misrepresenting the judgement.

The High Court didn’t even indicate a preference to resale or infrastructure competition, they simply considered the case before them, and determined that no, Telstra’s case is one which isn’t true, and as such was determined that way.

Of course, Telstra didn’t start this case to try and get legislation to build, they started this to try and have a stab at the ACCC powers that allow for pricing determination, they are indeed a monopoly feeling the threat of competition, and, it’s all due to their own fault. They were too lazy to do something, they could have built out and wholesaled ADSL2+ years ago, they could have done FTTN years ago. They chose not to, and industry decided that they would invest in a more profitable service anyway.

Telstra’s biggest mistake all this time was sitting on its hands, not investing further in its network. Not encouraging investment into newer networks. They sat on their hands, and thought they’d keep sitting on profits, instead of moving to keep with technology and protect them, they have fought tooth and nail on a battle that it would never, and knew it would never have much of a chance of success.

Which still brings to question, why on earth are they even bothering? They should already know they don’t stand a chance at trying to go back to the old days, so they should simply get on with it. I noted they claimed ‘investment options would be considered’ – strangely, that’s something they should have done years ago.


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