Out August 2011 Casenote FOXTEL/Austar merger examines the issues raised by the proposed acquisition of regional pay TV operator Austar by FOXTEL. The Australian Competition and Consumer Commission (ACCC) has published an Issues Paper raising concerns over the proposed acquisition. It sees this as creating a “near monopoly of pay TV”. But the ACCC’s counterfactual required to asses the competitive effects of a merger under s 50 Competition and Consumer Act 2010 is based on the development of the state-sponsored and funded National Broadband Network (NBN) enhancing competition between FOXTEL and Austar. Yet the NBN is deeply anti-competitive. This Casenote critically examines the ACCC’s use of this benchmark to evaluate the proposed acquisition.