NBN Co “misleading” FTTN/FTTB users, says ACCC


news The head of the Australian Competition and Consumer Commission this morning said NBN Co would be “misleading” consumers on its planned Fibre to the Node or Basement (FTTN/B) infrastructure if it went through with its decision to allow them to order speeds between 50Mbps and 100Mbps which their connections could not actually deliver.

The Coalition’s current policy for NBN Co’s network rollout will see up to a third of Australians served by the current HFC cable networks operated by Telstra and Optus, and a quarter receive the full Fibre to the Premises rollout promised to the entire country by the previous Labor Government. Most of the rest (40 percent) will be served by a Fibre to the Node/Fibre to the Basement style rollout which will see Fibre extended only partway to Australians’ premises and the remaining distance covered by existing copper cable. Rural and regional areas will receive satellite and wireless coverage.

In April, NBN Co issued a product consultation paper to retail ISPs such as Telstra, Optus, TPG and iiNet with which it hopes to gain feedback on how those FTTN and FTTB connections will actually be sold, both to retail ISPs as well as to end user customers.

Early trials of the deployment model has shown the FTTN infrastructure capable of delivering raw download speeds of 105Mbps over a distance of 100m from a local test node, while the FTTB trial has delivered speeds of 90Mbps.

In its document, NBN Co noted that it planned to offer five speed tiers for the FTTN/B infrastructure — 12/1Mbps (download/upload), 12/5Mbps, 25/10Mbps, 50/20Mbps and 100/40Mbps. These tiers mimic NBN Co’s existing speed tiers for its Fibre to the Premises infrastructure. However, NBN Co noted that selecting the correct speed tier would be “the responsibility of the end user and the provider”.

“For example, NBN Co does not intend to prevent end users and/or providers from ordering the ‘Up to 100Mbps’ speed tier for a service that would typically experience speeds of less than 50Mbps,” the document states. “To assist in ordering FTTN/B services, NBN Co will consider developing a service qualification tool that enables providers to check the estimated speeds available to premises.”

It appears possible that NBN Co’s option of allowing end users to order broadband speeds which their copper lines may not be capable of delivering may actually contravene consumer law, with the Australian Competition and Consumer Commission having come down heavily on ISPs and telcos in the past for advertising services that they could not deliver, or at prices which were deemed to be misleading of the actual cost involved.

In a Senate Estimates hearing this morning, former Communications Minister and Labor Senator Stephen Conroy asked ACCC chair Rod Sims for his opinion on the matter.

“If in ideal conditions, a [Retail Internet Service Provider or RSP] determines that it can deliver a VDSL service of say 38Mbps to an end user, would it be appropriate for an RSP to market that product as an up to 100Mbps service?” asked Conroy. “Well, the circumstance that you’re describing, if I accept the facts as you put them, Senator, would suggest that’s misleading,” responded Sims.

Conroy also asked Sims again to confirm if, under Australian law, it would be “misleading and deceptive” for a RSP to sell a customer a 100Mbps product when the RSP was aware that it could only provide a service of 38Mbps, and the RSP had a product it could sell at up to 50Mbps.

“That would at its face, given those facts, be misleading,” Sims responded again.

Conroy then read out the specific section from NBN Co’s consultation paper dealing with this issue, with Sims confirming that the ACCC had seen the document. “This is NBN Co in writing, saying we don’t mind if you defraud Australian consumers,” Conroy said. “This is NBN Co itself stating that they don’t mind selling a service of up to 100Mbps, when they know the typical experienced speeds are less than 50Mbps. That’s just fraud.”

“Under our terms it’s misleading,” responded Sims.

The ACCC has previously warned the telecommunications industry that it was specifically examining the issue of speed claims. In August 2013, for example, the regulator released a consultation paper inviting comment on a proposed program for monitoring and reporting broadband performance in Australia. Similar programs have been implemented in several international jurisdictions including the United Kingdom, United States, Singapore and New Zealand.

“A program of this type could benefit internet service providers and consumers of broadband services in Australia. Information on real-world performance would help consumers and small businesses choose the right service for their needs and budget, and help them to identify whether they are receiving the service quality they were promised,” ACCC Commissioner Cristina Cifuentes said at the time.

It’s not surprising that the ACCC would view NBN Co’s proposal here as deceptive. I’ve been covering Australian telecommunications for a decade now, and this is definitely the kind of move which the ACCC is always — always — interested in. NBN Co is, ultimately, a telco like any other, and the ACCC is not the kind of regulator to look the other way when a telco takes active steps to deceive customers. My broader views on the situation, as I wrote in early May, are as follows:

“It is my clear opinion that NBN Co should not be allowed to advertise broadband services either to retail ISPs or end user customers without being able to deliver those speeds. I believe this would be a contravention of the Trade Practices Act and would speedily attract the attention of the ACCC.

Beyond this, of course, the bigger picture here is that we are seeing just how stark the difference is between Labor’s existing FTTP-based NBN plan and the Coalition’s ‘Multi-Technology Mix’ alternative. Under Labor’s plan, NBN Co had no problem guaranteeing end user speeds as high as 100Mbps, and then eventually 1Gbps. Under the Coalition, NBN Co has explicitly stated that its services must only be able to deliver minimum speeds of 25Mbps, and that everything above that is up for question. Wow. That’s basically not even next-generation broadband. And visionary, it is not.

We’re also seeing the culture of NBN Co change significantly here. I cannot imagine NBN Co under its previous management canvassing the possibility of openly deceiving its end user customers with regard to their broadband speeds. The fact that the company is now doing so under its new management speaks volumes about how it has changed in just a few short months. No wonder we’re seeing a huge management and staff exodus. I wouldn’t stand for this kind of crap either.”

Image credit: Parliamentary Broadcasting


  1. Just wait for the correction to clarify that that’s not what was meant – it just needs a phone call from a senior minister to the ACCC.

  2. In the area of less than honest things NBN Co may be attempting to do, is there any information on their push to allowed to volume discount?

    I fail to see how this does anything other than give Telstra an advantage over other RSPs.

  3. I’m putting $10 on February 15th, 2015.

    And I guess the latest date for which we’ll be doing bets is August 2016, at which time his term as ACCC chairman expires one way or another.

  4. Here’s my worry.

    You go to connect to a FttN/B connection, and ask what speed is the best you can get. ISP goes off to the MyBroadband website, and bases its decision off that. They say 50/20 is available, for arguments sake.

    So, you connect, only to find that you cant even get 12/1.

    What are your options? This isnt a hypothetical scenario by the way.

    • I wonder if it’s something that is written into your contract – if you sign up at the 50/20 package, can you downgrade to a more suitable speed?

    • I would say your options begin at downgrading your service to a lower tier (probably attracting a fee) and end with disconnecting it completely. You’re not going to be able to force them to provide you with a product that is physically impossible, the RSPs will contend it was ‘best effort’ advice and NBN Co will claim it’s all perfectly legal (if indeed they get it past the ACCC).

      • Realistically, I expect that if I made enough noise they’d drop me to a more accurate plan without charge, but its a risk thats going to appear more and more.

        Where I live appears to thankfully be going FttH soon (100m up the road has it, they’re finishing remediation in my zone), so its probably a moot point, but in FttN world scenarios like mine are bound to be repeated over and over – areas that, because of decisions made decades ago have a real issue today.

        Other side of the road gets 18 MBps, I get 6 Mbps. Simply because of how the copper line was rolled out some decades ago, my real loop length is 2 kms longer than you’d expect. But because the other side of the road is included in my segment, the Govt data shows 18 Mbps as the real speed expected, and they ignore the real 6 MBps limit I get.

      • Actually if performance of the contract is substantially different to what was agreed upon (e.g. they may have a best effort clause, but this applies ‘reasonably’) then this could amount to an breach or anticipatory breach and give rights to the consumer to rescind the contract. Essentially if you were made an offer stating you could receive up to 100mb/50mb and were paying for such (as opposed to plans with a lower speed/data/price offering) and then you received something drastically different (think %’s to be more flexible) so lets say, 12/1, if you put the supplier on notice and they do nothing about it, this can signal a breach and give the consumer to terminate and sue for damages.
        Contract law and the ACL work nicely together but you have to read what you’re signing first and understand that ‘reasonable’ is more broad than most people think.

        P.s. Stop Referencing the damn TPA its so out of date now its not funny. Use the ACL else don’t even try to go into the legal field unless you’re qualified to do so.

        • Not necessarily. My scenario – I call my ISP, ask what is the best connection, and they look at the official information, which says 50/20 is available in my area. If thats not the reality, its not their fault, its the fault of whatever information source they use. Which will be MyBroadband, or effectively the same – whatever information its based on.

          Its no different to now, where ADSL2 is an “up to” service. The legislation is already there that LNPMTMNBN is an “up to” service, so the ISP cant be held accountable. So if the official data they base it on says 50/20, they arent accountable, I’m stuck fighting the contract and its something you cant know until you connect.

          I know where I live is an extreme example (victim of 3 or 4 issues all at once), and as I’ve said a few times I expect FttH to be rolled out anyway. But if the potential is here, its a potential elsewhere, so the questions will need to be asked at some point.

          And I dont like what the answer will be.

    • I was in a similar situation when I ‘upgraded’ my plan from ADSL1 to ADSL2. Thanks to the distance & condition of the copper I experience no improvement at all in speeds.
      Tech support informed me I couldn’t revert to my cheaper original plan as it had been discontinued.
      Not happy, I posted my experience on Whirlpool & within the hour I was contacted by a rep from my ISP who switched me back the next day.

  5. It would be nice to actually pay for what you get in terms of speed.

    I’m on a naked DSL connection with iinet that is supposed to get 20+Mb/sec. I get 5.

    • I know my mother is lucky enough to live in Armidale with FTTP she only has a 12/1 connection and I tested it acouple times over weekend and was getting a constant 11.3/0.9 connection

  6. what I would like to know and its something that should be considered. say you can magically get a service @ say 90Mbit and you sign an up to 100Mbit plan, 3 months in something happens to your line and you now synch at 49Mbit, but your under say a 12 month 100Mbit contract. Can you then demand nbnco fix the line, so that it is above 50Mbit, AND is there a minimum above the next lowest level plan that it has to be (say 50% above the next lowest plan, so if your on a 100Mbit plan, you must get a minimum 75Mbit, before you can be charged @ 100Mbit, or else you must be charged @ 50Mbit)

    I think this is a critical question in a variable speed MTM environment.

    • Brad, there was criticism of the LNP NBN plan when released last year saying the so-called ‘guarantee’ of 25mbps was no such thing unless it was a minimum service level in legislation. I remember even reading one Renai LeMay claiming on numerous occasions that it was guaranteed, so they managed to confuse a lot of folks. However, we’re now well and truly going down that path and without some form of legislation you’re on your own there, I think.

    • Brad, in the scenario you pose the greater concern would be if you were getting 100/40Mpbs under Vectored VDSL2 and it dropped to 51/20Mbps. What happens then?

      ie There was no lower speed plan that covered you “faulty” line speed AND it was greater than the 90% >50Mbps by 2019 promise.

      In the scenario I mention the line may be considered “within spec” and you may have no recourse to break contracts (if that was possible if it was <50Mbps). All it would do was cost NBNco for remediation.

      And even if they were going to address it, what priority would be given to it over other faults where lines drop <25Mbps?

      • The problem with what you are saying is that they have already stated that they will not guarantee 25mbps. So in both those cases in your post, nothing will happen. The consumer will simply have to have enough knowledge to realize that the sync speed has dropped and downgrade plan accordingly. Changing your plan while under contract is usually not a problem, but you will normally have to pay a fee for downgrading.

        • Ever tried downgrading while under contract, Fruxo? Not necessarily that easy…

    • I do love how everyone’s missed an important point.

      No, you can’t make NBN do anything.
      Why? You contract is not with NBN, you contract will be with your ISP. The ISP has a contract with NBNCo. Which means your ability to complain about things will be isolated to your ISP. Which means if you want to demand service you demand it from the ISP. Ultimately this also means if you want to get all legal, you’re fighting your ISP not NBNco.

      • Which will be about as effective as complaining to your ISP about problems with Telstra’s network today – not very.

  7. “It’s not surprising that the ACCC would view NBN Co’s proposal here as deceptive”

    I don’t think anyone is surprised really Reanai, specially when you look at who is running the show now…

  8. So once again, as we were saying a year ago and guess what?

    It just becomes more pitiful by the day… let’s remember the main arguing point against the real NBN was, it’s behind schedule… that was it. Yes there were other aspects which were all shot down, but this was the one the detractors had…

    So now, seeing the new governments complete fiasco (including… wait for it… being behind schedule) does anyone seriously (I mean with an actual straight face) still believe that the real NBN wasn’t better, in pretty much all facets and areas than this complete fuck up now thrust upon us?

    Sans the obvious/usual suspect political crusaders who have been curiously MIA of late, of course?

  9. And THIS is why I say “Kill all the Lawyers” those tricky bastards keep trying to slip things into telecomms policy that allows companies to deliver awful service while advertising it in a misleading way for consumers.

    But doing this is not illegal because it’s “up to” whatever speed is advertised, which is just made up bullshit to let companies practically lie to customers about their quality of service and available bandwidth, it’s anti-competitive and frankly, it makes it impossible to truly gauge how good any given provider actually is.

    Fuck them, ACCC, make an example of NBNCo and then use that as a precedent to beat telstra over the head about the same crap they’ve been doing for years with ADSL.

  10. I’m just going to post “I told everybody this would happen” from now on. Being right about every little disaster that has befallen the NBN has been tragic and exasperating.

    • *sigh* I know. When the election happened the first thing I thought was ‘how lucky would you feel if you already had fibre, your house value is going to jump’ but everyone on here told me ‘oh don’t be so stupid, you can get fibre on demand, why should everyone pay for your connection if you want a fast connection you should just pay’

      Nearly a year on, minimum speed guarantee gone, fibre on demand gone, any information about when your area will be upgraded is gone.

      I know for sure if I decide to buy property here then I will not accept anything that is not in a fibre nbn footprint. Prices will surely reflect this and I can’t be the only one who feels that it is this important.

      I want to finish my study and move away, I can’t stand what the libs are doing to this country. Telecoms, education, health…all on the way to being well and truly changed in fundamental ways forever and for the worse.

      • We should start getting on boats and go to Indonesia for refugee as they have or will have better internet then us

  11. Nobody should be surprised by this. Not only is the technology solution now a complete mess anything coming out of NBNco from here on in will be “managed” the same way it was while Morrow and others were at Vodafone. If anyone is in any doubt lets go back to what Morrow said about the Vodafone turnaround when he accepted the NBN CEO role late last year – “We are seeing the brand perception scores go up, we are seeing our customer numbers go up, we are seeing growth come back into the business.” And then of course the group results are released and they tell a very different story. Not only did the customer numbers not go up in that quarter they got worse in the next quarter. What is clear the turnaround never happened while he was running Vodafone and under his watch they have gone from 7 million customers to under 5 million – yet he managed the message in the media very cleverly and never came under any real scrutiny. So perhaps he thinks that he and his team have a licence to do the same at the NBN. Don’t let them!

  12. Our only two hopes are calls for a double dissolution or LNP/NBNCo stand still and do nothing until the next election.

    Even if either eventuates, would anyone want to be involved in such a toxic establishment knowing they’re at the mercy of such a vocal gang of opposition luddites?

  13. Watch for the magic phrase “up to”. Pay $XX/month for UP TO 100Mbps/40Mbps speeds, just like with current ADSL.
    However it would be nice and ‘reasonable’ if you could say to your RSP “Look I and paying for 100/40 but only getting 48/19 so I should be able to downgrade for FREE as it is not my fault you cant deliver what I pay for”.

    Also what happens when on your 100/40 plan you get 90/18? Or 48/25? When half of the plan is still near the upper range but the other half is crap? Is that enough to get a free downgrade?

  14. I’ve just about had it on the NBN. I’m an eternal optimist, but it seems like every day there’s a new crony appointment to NBNCo, bizarre and offensive rhetoric from Turnbull, rescinded promises, reduced expectations and overall the idea that we are going to get be given a third-rate lemon and will just have to suck it up.

    Since the election we’ve slowly seen the vision of the NBN as something that would truly transform our country and set us up for the 21st century be chipped away until it’s become merely a mechanism to deliver billions of dollars to a few companies while we get a very slightly better than ADSL network that is already obsolete.

    Anyone else tempted just to bury their heads in the sand until the next election and hope that a new government come along and start the NBN from scratch again?

    • Again, you’re being far too optimistic, the kind of optimism that is precisely how we got into this situation in the first place. Lots of people were overly optimistic about the LNP when they voted them in. You might alternatively say ‘ill informed’ because it was possible to predict this outcome given the available evidence, but there were a lot of people thinking they already ‘knew enough’ who weren’t interested in learning any ‘more’ (ie something), exhibiting the very common trait in this country of the ‘know it all know-nothings’.

      Left to continue for another two+ years the LNP will either undermine the environment upon which the NBN is predicated (ie telcos will build their own FTTP ghettos in the most lucrative areas, locking those premises into private networks and eliminating any future profitability of NBN Co, so it will wind up as a subsidy model draining the government of funds directly out of the budget undefinitely) or break it up and sell it off for a song precisely because it is not profitable (resulting in those subsidy payments going directly to large telcos, such as Telstra, who will essentially be paid for taking the new fibre transit network off the government’s hands, which is the end-game here – a more powerful, indefinitely entrenched Telstra, with the bonus that they might be able to acquire the network for nothing).

      The question is just how far down this path the LNP can progress in the next couple of years? Unless somehow enough LNP members can be convinced to cross the floor and sack the government.

    • The biggest issue isn’t so much constructing the NBN… it’s over politicisation of *everything* that’s connected to the project.

      Actually it’s not even the politicisation. It’s the arrogant partisanship/obstructionist approach that has basically ruined everything here. And that’s not a problem that will go away w/ a “new government” because you will end up w/ the same round of obstructionist crap we had w/ the “original” NBN. Until we can get a proper lot of people for both parties who are actually *willing* to compromise on a *good* policy we will be forever stuck w/ this circular logic of “our way or the highway!”.

      • That’s a really great point. The politicisation of the NBN is truly tragic. It really ought to be an endeavour embraced by all sides of politics – even if just in principle. The LNP haven’t said two words about the NBN as a concept, about the overarching goals of ubiquitous communication and the benefits (social, economic) it would have brought to the country.

        Politicians of all stripes would have earned a lot of respect were they to cast aside ideology and agree that for the good of the country, they ought to have worked together to create the biggest infrastructure project this country has seen in decades. Compromise is a dirty word, sadly.

      • One just needs to look at who stood to lose/gain from either policy?
        The NBN presented a massive threat to the big end of town’s existing business models so had to be demolished.
        Printed media, radio, tv, shopping, entertainment all under attack from a cheaper, more convenient mode of access.
        But unable to halt progress they’ve done their best to at least throw a spanner in the works via the MTN to keep their existing models profitable for hopefully another decade or so.
        Fits in perfectly with their budget in protecting their sponsors while fleecing the peasants.

  15. This is rather funny. We have had “up to” speeds since ADSL1. Even dial-up wasn’t a guaranteed deliverable. ACCC are about a decade late.

    Worse, they apply one concern to NBNCo, and ignore the current situation. ADSL2+ is “up to 24 mbit” but many lines will never do that.

    The only difference is the numbers here, the rest is simply political semantics.

    • Actually, “up to” would have gone the way of the dodo with Labors version of the NBN ( the proper NBN) because fibre would have been able to deliver all plan speeds at their rated potential, whilst the sat and fixed wireless components would have been blocked from offering the higher speeds until NBNCo was certain that EVERYONE in the footprint could obtain those speeds.

      Now, I know that someone will come along and say “But Psy, the GPON tech can only handle 2.5gbps download between all customers, so that’s only 78mbps, not 100mbps.” So I’ll say now that that’s an edge case where EVERYONE on that GPON is on a 100mbps plan and they are ALL using it to the full capacity at the same time.

      For all intents and purposes, the connection provided by NBNCo to the RSP to sell would have been capable of the advertised speed whilst on NBNCo infrastructure. Once it leaves the NBNCo network, it’s subject to the arrangements your RSP has in place, including how much traffic they’re able to put across a given link.

      • Actually it’s much simpler than that.

        You are conflating (in your example) capacity versus connectivity. I understand the point you try to make, but you’re just arguing the same thing others do to, only in reverse.

        Fibre by default guarantees a particular connection speed over a particular length. It’s glass fibre and transceivers; they perform at x value over y length.

        This includes upstream. Fibre either works, or it doesn’t. Either the light makes it to the other end, or it doesn’t. It’s a (reasonably) binary outcome.

        xDSL cannot, by default, offer the same outcome as it’s performance is variable dependant on length and quality of copper. There is (massive) variability between ‘on’ and ‘off’.

        Using backhaul speeds to justify connectivity speeds is a nonsensical argument to make (I know you’re not, but again in your rebuttal your changing the focus of importance).

        • Ah, sorry about that. Wasn’t meaning to conflate the two together.

          Probably should have just said “fibre is effectively digital, it’s on or off. xDSL (and other tech reliant on copper) is more akin to analog as there’s scope for a wide variety of positions between full on and full off.”

          I put the bit about backhaul there because I was reasonably certain someone would say that they’re on a 100mbps plan but only getting 25mbps to O/S destinations, that’s all.

  16. People are discussing the issues if/when they ascertain they are on a plan that cannot deliver.

    I have a different question. How many tens-of-thousand clients will be misled and over-sold by ISP’s because they are not technically inclined and aware that so much scope is possible in purchased services?

    • No different to the current situation now?

      The NBN doesn’t really change people’s level of understanding, or perspectives, simply because it exists.

      This is abundantly illustrated by how little it rates on most people’s radar. And how little it really mattered in the last election.

      Turnbull basically said “I’ll sort it” and that was enough for much of the public; whom accepted that at face value.

      I’m not sure who that speaks more to; Turnbull or the general public.

      • In my estimation the ‘general public’ can be summarised as a collection of people who are overall more stupid than the sum of their parts… Which is saying a lot, because some of their parts are quite stupid indeed!

  17. Telstra have covered their arses by not offering speed based plans.

    They sell a basic plan with a speed upgrade without specifying what the expected speeds will be. It’s looking more and more like they are only interested in being handed the NBN on a platter and will do whatever it takes to make that happen, including placing the blame for their incompetence on NBN Co.

    • If you’ve been paying attention for the last four years you’ll be aware that NBN Co & Labor have been blamed for all delays, despite the LNP holding up the project for six months with political maneuvering delaying the legislation required form the initial agreement with Telstra, Telstra then delaying everything by a further 9 months before making said agreement, Telstra delaying things by 6 to 12 months over pit remediation, the whole construction being delayed by inefficiencies demanded by Independents to ensure greenfields and remote areas are prioritised in transit network rollout and asbestos and contractors delaying things probably by several years by failing to complete work and reneging on contracts, although even Labor and NBN Co have acknowledged they could have planned things better to protect against that eventuality. The whole project has been set back years because of Telstra and politics, yet even our intrepid writer lays the majority of blame for delays at the feet of Labor and NBN Co despite them being only partially to blame.

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