[AusNOG] Megaport Suspends Accepting New Orders in PIPE DC's

[Bevan Slattery]

On 14/01/2014 12:47 pm, "Jake Anderson" <yahoo at vapourforge.com> wrote:

> Its the "Schedule 3 to the Telecommunications Act 1997" part.
> Basically megaport aren't asking nicely for access to the DC, they are
> using that part of the act to compel the DC to allow them access.
> TPG is saying that the people renting rack space aren't "occupiers" and
> as such megaport can't use that bit of the act to force them to allow
> access.

Correct.  But PIPE historically required carriers to issues LAAN¹s to
deliver services into their facilities as it provided protection under the
Act.  PIPE also used to do this as this is how the industry issued notices
to each other.  This was the ³language² we used between carriers to install
in DC¹s and buildings.

But TPG are saying a couple of things IMHO.

1. The Data Centre LAAN ³Own Goal"

TPG/PIPE issued several hundreds of LAAN to other data centres around
Australia, data centres with which I expect many would have similar clauses
in their agreements.   If TPG¹s argument now is right, PIPE never had the
right to install any of those facilities under previous LAAN¹s.  Think about
that.

2. Minimum Equipment ³Own Goal"

TPG/PIPE seem to be arguing that Megaport can only install enough
cable/terminations for the initial services.  They actually quote this in
their response 

> "For example, it is my understanding that the TIO has not ever given a ruling
> that indicates that a carrier may in all instances build as much
> infrastructure as it chooses to prepare for possible future customers.
> Obviously, this is a matter that will need to
> be considered further.²

If TPG/PIPE are successful on this with the TIO then when they rollout their
FttB network they may only be able to install the equipment as needed to
support those customers who have already signed.  Any future customer (PON
or VDSL) may require TPG/PIPE to go back to the site and re-install the
discrete components required to complete each new customer service.  This
could apply to commercial and FttB/residential.

Additionally TPG/PIPE actually fought and won similar arguments which were
made by the building owners and I think also in the landmark Land Access
Dispute I started back in
http://www.austlii.edu.au/au/cases/cth/FCA/2013/444.html  .

This is a common argument by building owners used AGAINST PIPE and the TIO
in my time has always found in PIPE¹s favour based upon ³good engineering
practices².  Anyone have a Telstra ³Site Light² box?  1000 copper pair
installed with MDF in the past 10 years?

So remarkably TPG/PIPE have in this single instance effectively ³joined² the
building owners and now appear to be supporting their arguments, contrary to
their previous (and numerous) representations to the TIO otherwise.  They
appear to be potentially supporting all building owners against their FttB
rollout.  The same people will be arguing this one at the TIO contrary to
their previous arguments in the hope to win against themselves.  Kind of
³Win Small and Lose Big².

3.  PIPE facilities are no longer neutral

Last year we were made aware that PIPE/TPG decided not to renew a competing
carriers colo agreement which forced them to vacate their colo space and
find alternative arrangements to service customers in the PIPE DC¹s.  PIPE
declaring their customers are not able to have services delivered over
Schedule 3 and now deciding not to renew commercial arrangements with some
competing carriers is not good news.  This is simply the (old) AAPT colo
situation all over again.

Irony and History Repeating itself.

(i) The PIPE-v-AAPT experience
In 2003 PIPE had a dispute with AAPT on similar grounds (the old AAPT
pre-powertel merger which created the new excellent AAPT).  PIPE went to the
Federal Court.  In the meantime PIPE was able to relocate about 82 of the 94
services in AAPT data centres.  Over the following 12 months those data
centres (123 Eagle Street, 45 Pirie St, 530 Collins St, 187 Thomas St, 30
Ross St) were effectively vacated by the industry and all have since closed.

(ii) The PIPE-v-Soul experience
In around 2006(?) PIPE issued a LAAN to deliver services into 201 Kent
Street (was Soul and now TPG data centre).  Ironically the same occupier
argument was used  and the TIO found in favour of PIPE. The service was
installed. Again if PIPE/TPG succeed then they may find themselves to have
knowingly trespassed hundreds of timesŠ

By way of reference the TIO considered that there were two (2) carriers,
however PIPE argued that it was one carrier (PIPE) against a building
manager (Soul).  The TIO heard this.  If the argument is that it¹s two (2)
carriers then Schedule 1 applies which would mean Facilities Access and that
Megaport has every right to obtain access under an Facilities Access.
Interestingly from memory PIPE argued in the landmark case
http://www.austlii.edu.au/au/cases/cth/FCA/2013/444.html that even if
Schedule 1 did apply it doesn¹t over rule Schedule 3 when it applies.  The
court agreed.  And when I say PIPE I mean PIPE started the argument when I
was there and TPG continued the argument after the sale.

I have pleaded with TPG/PIPE on numerous occasions NOT to open the pandoras
box that has just been opened.  Calls were not returned.  The box is now
open and I can see all the building owners throughout Australia rubbing
their hands in disbelief and eagerly awaiting the first opportunity to use
TPG/PIPE¹s arguments against them regardless of outcome.

Let¹s see what happens in the TIO and we will keep our customers informed in
the meantime.

[b]


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