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AustraliaACCC opposition to Vodafone-TPG tie-up based on 'fallacy', court hears

00:20  11 september  2019
00:20  11 september  2019 Source:   theage.com.au

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Vodafone has asked the Federal Court to overturn the Australian Competition and Consumer Commission ’s opposition to its planned friendly tie - up with TPG , arguing the regulator is wrong in its view the merger would hurt consumers by lessening competition between mobile players.

Consumer watchdog the Australian Competition and Consumer Commission ( ACCC ) has lost its bid to block a merger between Vodafone and TPG . The ACCC had argued it would substantially lessen competition in Australia's mobile market because it would stop TPG building a fourth mobile network.

ACCC opposition to Vodafone-TPG tie-up based on 'fallacy', court hears© Daniel Munoz Things haven't gone smoothly in recent months for TPG and its CEO David Teoh.

The competition regulator’s decision to block a $15 billion merger between telecommunication groups Vodafone Hutchison Australia and TPG is built on speculation and a perspective that is "commercially crazy", a court has heard.

Vodafone has asked the Federal Court to overturn the Australian Competition and Consumer Commission’s opposition to the friendly tie-up between the telcos believing the regulator is wrong in its view the merger would hurt consumers by lessening competition between mobile players.

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The Federal Court has found that a merger of the two Telcos is unlikely to substantially reduce competition in the mobile market.

No regrets: ACCC 's Sims defends blocking Vodafone - TPG tie - up after court clears merger. In a highly anticipated decision, the Federal Court on Thursday threw out a ruling by the Australian Competition and Consumer Commission that the planned tie - up between the two telecom giants

TPG’s counsel, Ruth Higgins SC, told the court on the opening day of the three week trial the ACCC position was built on the "fallacy" that TPG will have the ability to become Australia’s fourth mobile operator by building a network it says it doesn't want to make and can't afford to do so.

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The ACCC says consumers will benefit from it blocking the TPG - Vodafone merger. The ACCC says TPG is the best and only hope for competition in the mobile phone market. TPG and Vodafone Australia planned to merge their broadband and mobile strengths to take on Telstra and Optus.

According to the ACCC decision, “ TPG has a proven track record of disrupting the telecommunications sector” and “is likely to be a vigorous and innovative Vodafone Australia is joint-owned by UK company Vodafone Group and Hong Kong- based firm Hutchison, and has the third-biggest mobile

ACCC opposition to Vodafone-TPG tie-up based on 'fallacy', court hears© supplied The 1989 film Field of Dreams was invoked in proceedings.

In outlining her argument, Dr Higgins invoked the hit Kevin Costner 1989 film Field of Dreams, where the Costner’s character builds a baseball diamond in his corn field to reunite the ghosts of his favourite players in a final game to describe the ACCC’s legal stance.

"The ACCC has said to TPG ‘build it and they will come," Dr Higgins told a jammed-packed court room.

"TPG did try to build it, but it was thwarted by community objections, by technical difficulties but ultimately the by the federal government’s security guidance."

The court heard TPG had originally planned to roll out a mobile network using equipment supplied by China state-owned technology group Huawei in 2017.

In early 2019, TPG canned the rollout after the Federal Government blocked the Chinese group from providing the technology. TPG has long claimed that it could not afford to use equipment from other groups due to cost constraints.

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Vodafone Hutchison Australia will hold off on utilising the massive amounts of spectrum it has acquired through its billion merger with TPG in case Vodafone Hutchison Australia boss Inaki Berroeta was all smiles on Thursday after the court threw out a decision by the ACCC to block its merger with

The Australian competition watchdog has revealed the early release of the merger decision was caused by its content management system. The ACCC unexpectedly blocked the merger between Vodafone and TPG - with big consequences for the entire telco market.

The ACCC blocked the merger deal in May because it concluded that the proposed tie-up between TPG and Vodafone would stop TPG from becoming Australia’s fourth mobile network operator and thus lessen competition in the sector currently dominated by Telstra, Optus and Vodafone.

However, the ACCC found that TPG would have the capacity to roll out a new 4G mobile network in the coming years and therefore allowing the two parties to merge would remove this additional competitor from the market.

Ms Higgins told the court that TPG's ability to build a 4G network was already outdated with new 5G technology. "5G isn't just a possibility," Dr Higgins said. "It's a product".

Currently Telstra, Optus and TPG – which owns the iiNet and internode brands – are the three largest players in the broadband market, while Telstra, Optus and Vodafone compete in the mobile network market.

Several executives and experts will give evidence during the case including TPG’s reclusive billionaire executive chairman David Teoh and Vodafone chief executive Iñaki Berroeta.

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Based on its application of section 50 of the CCA, the ACCC ultimately concluded that the market for mobile services was highly concentrated in Australia and that a proposed merger between TPG TPG and Vodafone have announced that they intend to challenge the ACCC 's decision in the Federal Court .

overruling the Australian Competition and Consumer Commission ’s ( ACCC ) opposition to the telco “ TPG is very pleased with the Federal Court decision and looks forward to combining with VHA to The network would be focused on coverage of major metro areas and based on small cells, TPG

Mr Berroeta is expected to give evidence later today. Mr Teoh may also give evidence today. The ACCC will be represented in court by Michael Hodge, QC, who shot to prominence last year as one of the counsels assisting the banking royal commission.

Dr Higgins said board papers and emails will show the problems TPG was having with rolling out the network ahead of its plan to scrap it, including an email she said showed Mr Teoh was growing increasingly concerned about problems with the roll out.

Dr Higgins also said that even after TPG's use of Huawei equipment was ruled out, TPG investigated if it could build similar small-cell networks using equipment from Samsung and Ericsson, however no other providers were able to deliver solutions that were not technologically or financially suitable for TPG.

She also told the court to "keep firmly in mind" that TPG's situation had changed since it first started rolling out its now scrapped network, particularly that its debt levels had increased significantly.

Earlier in the hearing, lawyer for Vodafone, Peter Bereton QC told the court that the ACCC’s opposition to the merger was incorrect.

"The ACCC’s case is wrong as a matter of comer ce, and wrong as a matter of technology and wrong as a matter of law," counsel for Vodafone, Peter Bereton SC said.

"The ACCC’s case is chock full of speculation and chock full of possibilities and chock full of theories."

Mr Bereton said a key problem with the ACCC’s case was its belief TPG would make a new network.

"There isn’t a real chance that TPG will pursue the roll out of a mobile network. There is not a real chance that TPG will become Australia’s fourth network."

Mr Bereton said the other problem was the ACCC’s view that competition would be lessened.

Mr Bereton told the court the combined Vodafone and TPG entity would be better able to compete against Telstra and Optus in the mobile market as it would be a much larger overall competitor.

"It would rely on a leap of faith by TPG to build this substandard network. That’s a solution that doesn’t presently exist, the technology is not presently there," Mr Bereton said.

"It’s not possible to know when the technology will emerge or if it will emerge at all."

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