Reprint
as at 11 May 2014

Coat of Arms of New Zealand

Telecommunications Act 2001

Public Act2001 No 103
Date of assent19 December 2001
Commencementsee section 2

Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Ministry of Business, Innovation, and Employment.


Contents

1 Title

Part 1
Preliminary

Subpart 1General

2 Commencement

3 Purpose

4 Overview

5 Interpretation

6 Public notice

7 Telecommunications access codes

8 Act binds the Crown

Subpart 2Commerce Commission

Telecommunications Commissioner

9 Appointment of Telecommunications Commissioner

9A Functions of Commission in relation to sector monitoring and information dissemination

10 Performance of Commission's functions

Levy

11 Levy

12 Levy for first financial year or part financial year

13 Minister must consult before making recommendation under section 11(3) or section 12(4)

14 Late payment of levy

Application of Commerce Act 1986

15 Application of Commerce Act 1986 and Crown Entities Act 2004

16 Application of section 98A of Commerce Act 1986

17 Telecommunications Commissioner to consent to delegation of some functions and powers of Commission

Part 2
Designated services and specified services

Subpart 1Preliminary

18 Purpose

19 Commission and Minister must consider purpose set out in section 18 and additional matters

19A Commission to have regard to economic policies of Government

Subpart 2Determinations for designated access services and specified services

Application

20 Application

21 When application must be treated as application for pricing review determination

22 When application may not be made

22A Effect of application on existing agreement for supply of designated access service or specified service

23 Requirements for application

Notification

24 Commission must notify parties

Investigation

25 Commission must decide whether to investigate

Consultation

26 Consultation or conferences

Determination

27 Preparation of determination

28 When determination must be prepared

29 Requirements for determination

30 Matters to be included in determination

Subpart 2AStandard terms determinations for designated access services and specified services

Preliminary

30A Overview of subpart

30B Interpretation

Standard terms development process

30C When standard terms development process may be initiated

30D Commission must give public notice if Commission initiates standard terms development process

30E Commission must conduct scoping workshop

Standard terms proposal

30F Call for standard terms proposal

30G Requirements for standard terms proposal

30H Failure to submit standard terms proposal

30I Receipt of standard terms proposal

30J Requirement for submissions

Draft standard terms determination

30K Draft standard terms determination

30L Consultation or conferences

Standard terms determination

30M Standard terms determination

30N Commission's discretion to determine how standard terms determination is to be prepared

30O Matters to be included in standard terms determination: general

30P Additional matters to be included in standard terms determination for designated access service

30Q Standard terms determination not to include expiry date

30R Review of standard terms determination

Application of standard terms determination

30S Application of standard terms determination

30T Effect of standard terms determination on determination made under section 27

Residual terms determination

30U Purpose of residual terms determination

30V Application for residual terms determination

30W When application may not be made

30X Requirements for application

30Y Commission must notify parties

30Z Commission must decide whether to investigate

30ZA Consultation or conferences

30ZB Preparation of residual terms determination

30ZC Requirements for residual terms determination

30ZD Matters to be included in residual terms determination

Subpart 3Determinations for designated multinetwork services

Commission may initiate process for designated multinetwork service determination on own initiative

31AA Commission may initiate process for designated multinetwork service determination on own initiative

Application

31 Application

32 When application may not be made

33 Requirements for application

Notification

34 Commission must notify parties

Investigation

35 Commission must decide whether to investigate

Draft determination

36 Draft determination

37 Matters to be included in draft determination

38 Consultation, conferences, or public hearing

Determination

39 Determination

40 Matters to be included in determination

41 Determinations not invalid for certain failures

Subpart 4Pricing review determinations for designated access services

Application

42 Application

43 Requirements for application

Notification

44 Commission's requirements on receiving application

Calculation of price

45 Access provider to calculate price on request

46 Offences [Repealed]

Draft determination

47 Draft pricing review determination

48 Requirements for draft determination

49 Matters to be included in draft determination

Consultation

50 Consultation or conferences

Determination

51 Pricing review determination

52 Matters to be included in determination

Subpart 5Supplementary provisions for all determinations

53 Procedure for determinations

54 Applicant may withdraw

55 Commission's costs

56 Parties' costs

57 Enforcing directions given under section 55 or section 56(2)

58 Clarification of determination

59 Reconsideration of determination

60 Appeals from certain determinations under Part 2

61 Enforcing determinations of Commission [Repealed]

62 Expiry of determinations

63 Application of Commerce Act 1986

Subpart 6Matters relating to regulation-making powers for designated services and specified services

64 Mandatory review of local loop unbundling and access to, and interconnection with, Telecom's fixed PDN [Repealed]

65 Expiry of designated services and specified services [Repealed]

66 Alterations to Part 2 or Part 3 of Schedule 1

67 Alterations to clauses 1 to 6 of Schedule 1

68 Minister's recommendation subject to procedure in Schedule 3

68A Application of Schedule 3A

69 Regulations

Part 2A
Structural separation of Telecom

Subpart 1Preliminary provisions

69A Purpose of Part

69B Interpretation

Subpart 2Monitoring of shared assets, services, and systems

69C Interpretation

69D Meaning of arm's-length

69E Requirements for sharing arrangements

69F Commission must be notified of proposed and final sharing arrangements

69G Obligation to collect and retain information for monitoring purposes

69H Commission's monitoring, investigation, and enforcement powers

69I Commission may give non-compliance notice

69J Process for responding to non-compliance notice

69K Commission may decide on appropriate enforcement action if non-compliance persists

69L Application of pecuniary penalty provisions

69M Injunction may be granted by High Court

69N Minister may grant exemption from application of subpart

Subpart 3Line of business restrictions

69O No participation in supply of retail services

69P Register of non-retail users

69Q Variations to, and removals from, register

69R No services above layer 2

69S No end-to-end services

69T Enforcement of breaches of sections 69O and 69S

69U Application of line of business restrictions to related parties of Chorus

69V Injunctions may be granted by High Court for certain contraventions

Subpart 4Undertakings by Chorus

69W Purposes of subpart

69X Overview

69XA Interpretation

69XB Requirements for undertakings by Chorus relating to supply of certain wholesale telecommunications services

69XC Implementation of Chorus undertakings

69XD Chorus must publish Chorus undertakings

69XE Variation of Chorus undertakings

69XF Termination of Chorus undertakings

69XG Enforcement of Chorus undertakings

Subpart 5Miscellaneous

Public Works Act 1981

69XH Application of Public Works Act 1981

Resource Management Act 1991 issues

69XI Requiring authority status under Resource Management Act 1991

69XJ Designations under Resource Management Act 1991

Restrictive covenants

69XK Certain restrictive covenants

Government Superannuation Fund Act 1956

69XL Protection of existing members of Government Superannuation Fund

Subpart 6Taxation consequences of structural separation

69XM Interpretation in this subpart

69XN Purpose

69XO Depreciation

69XP Tax effect of distribution of ChorusCo shares

69XQ Goods and Services Tax Act 1985

69XR Prepayments

69XS Expenditure or loss incurred, and amounts derived

69XT Bad debts

69XU Unpaid employment expenditure

69XV Vesting of designated assets and liabilities

69XW Revenue account property

69XX Leased assets

69XY Finance leases: financial arrangements rules

69XZ Approved issuer levy and administrative status

Part 2B
Information disclosure requirements

69Y Purpose

69Z Parameters of Part

69ZA Interpretation

69ZB Accounting separation of Telecom [Repealed]

69ZC Information disclosure by all access providers

69ZD Miscellaneous provisions relating to Commission's information disclosure requirements

69ZE Publication of Commission's information disclosure requirements

69ZF Information to be supplied to Commission

69ZG Commission to publish summaries

69ZH Reasonable charge may be imposed for providing copies of statements

Part 3
Telecommunications service obligations

Subpart 1TSO instruments

70 Declaration of TSO instruments

71 Deemed TSO instrument

71A TSO instrument may specify total amount payable by the Crown

72 New KSO does not alter or revoke constitution of Telecom [Repealed]

73 When KSO part of original KSO ceases to have effect [Repealed]

74 Compliance with TSO instrument

75 Variation of TSO instrument

76 When instrument ceases to be TSO instrument

77 Notification of TSO instrument

78 Application of Commerce Act 1986

79 When 2 or more bodies corporate must be treated as 1 person

Subpart 2Amounts payable by liable persons to the Crown

Annual procedure for determining amounts payable by liable persons to the Crown

80 Interpretation

Requirement to produce certain information

[Repealed]

81 Subpart does not apply to certain liable persons

82 Liable persons must produce information on qualified revenue

Net cost

[Repealed]

83 Liable persons must produce information for purposes of liability allocation determination

84 Commission to prepare draft liability allocation determination

Amount of revenue received by liable persons in relation to TSO instrument

[Repealed]

85 Matters to be included in draft liability allocation determination

General provision relating to TSO cost allocation determination and TSO cost calculation determination

[Repealed]

86 Conferences on draft liability allocation determination

TSO cost allocation determination

[Repealed]

87 Commission to prepare final liability allocation determination

88 Matters to be included in final liability allocation determination

89 Payment by liable persons to the Crown

General matters

90 Crown use of telecommunications development levy

91 Commission must notify final liability allocation determination before notifying TSO cost calculation determination

TSO cost calculation determination

[Repealed]

92 Annual telecommunications development levy may be reduced by Order in Council

Subpart 2ATSO charges payable by the Crown

Assessment of compliance

93 Assessment of compliance with TSO instrument

93A Matters to be included in draft TSO cost calculation determination [Repealed]

93B Conferences on draft TSO cost calculation determination [Repealed]

93C Commission to prepare final TSO cost calculation determination [Repealed]

93D Requirements for final TSO cost calculation determination [Repealed]

93E Matters to be included in final TSO cost calculation determination [Repealed]

Calculation of amount payable by liable person

[Repealed]

93F Calculation of amount payable by liable person [Repealed]

TSO provider may request TSO cost calculation determination

94 TSO provider under TSO instrument without specified amount may request TSO cost calculation determination

Calculation of amount payable by TSO provider

[Repealed]

94A TSO provider who requests TSO cost calculation determination liable for costs in certain circumstances

94B Withdrawal of request for TSO cost calculation determination

94C TSO charges deemed to be zero if TSO provider does not request TSO cost calculation determination

Annual procedure for determining TSO charges payable by the Crown

94D Calculations of net cost and auditor's report must be given to Commission

94E Considerations for determining net cost

94EA Calculations of net revenue and auditor's report must be given to Commission

94EB Considerations for determining net revenue

94F Commission to prepare draft TSO cost calculation determination

94G Matters to be included in draft TSO cost calculation determination

94H Requirements for draft TSO cost calculation determination

94I Conferences on draft TSO cost calculation determination

94J Commission to prepare final TSO cost calculation determination

94K Matters to be included in final TSO cost calculation determination

94L Payment by the Crown to TSO provider

Subpart 3Remedies and miscellaneous

Remedies

95 Application of sections 96 to 98 to TSO instruments that are company constitutions [Repealed]

96 Power of court to grant relief in respect of TSO instrument

97 Court must take public interest into account

98 Certain matters not to prevent making of order under section 96

99 Amounts identifying particular TSOs in invoices not permitted [Repealed]

Miscellaneous

100 Right of appeal to High Court

100A Procedure for determinations

100B Commission must include information about deemed TSO instrument in TSO cost calculation determinations

100BA Commission must include information about spending of TSO charges paid in relation to deemed TSO instrument

100C Duties of Commission in complying with sections 100B and 100BA

101 Regulations

101A Review of local service TSO arrangements

Part 4
Networks

Subpart 1Network operators and networks generally

Declarations of network operator status

102 Persons declared to be network operators

103 Ministerial requirements for declaration

104 When declaration must be revoked

105 Declaration made or revoked by notice in Gazette

Connection to network

106 Operator must agree to connection to network

107 When operator must not agree to connection to network

108 When operator must not refuse to agree to connection to network

109 Regulations

110 Actions for damages for contravention of section 106

111 Injunctions may be granted by High Court for contravention of section 106

Information requirement

111A Information about interconnection arrangements

Misuse of network

112 Misuse of telephone device

113 Indecent telephone calls for pecuniary gain

114 Interception of telecommunications for authorised purposes [Repealed]

115 Offence to use or disclose certain information for unauthorised purposes [Repealed]

Evidence

116 Computer records

Subpart 2Maintenance of networks

Preliminary

117 Meaning of maintenance

118 Meaning of evidence of authority

118A Notices under this subpart

119 Criteria for setting reasonable conditions

Rights of entry to land in respect of lines

120 Application to District Court

121 Court order

122 Contents of court order

123 Service of order

124 Production of order

Rights of entry to land in respect of existing works and existing lines

125 Rights of entry to land

126 Conditions of entry to land

127 Evidentiary presumption

Interference with lines

128 Request for removal or trimming of trees

129 Application to District Court

130 Court order

131 Costs of removal or trimming of trees

132 Removal of trees, etc, in emergency

133 Production of authority

134 Costs of removal of trees, etc, in emergency

Lines or wireless works on roads

135 Construction or repair of lines or wireless works on roads

136 Notice requirement

137 Network operator to be notified of conditions

138 Failure to notify conditions

139 Urgency

140 Offence to not comply with any of sections 135, 136, and 139

141 Appeals by network operators to District Court

Telephone cabinets, etc, on roads

142 Construction, etc, of telephone cabinets or other similar appliances

143 Network operator to be notified of conditions

144 Failure to notify conditions

145 Urgency

146 Offence not to comply with section 142 or section 145

147 Appeals by network operators to District Court

Local authority, etc, requiring work to be done

147A Local authority, etc, may require lines, etc, to be moved

147B Cost of work required under section 147A

147C Relationship with section 54 of Government Roading Powers Act 1989

Miscellaneous

148 Alteration to line or wireless works on road requested by owner

149 Lines must not interfere with public traffic

150 Lines over navigable waters

151 Network operator must avoid interference with traffic

152 Offence to contravene any of sections 149 to 151

153 Charging for access to road reserve

154 Compensation

155 Protection of existing works

Subpart 3Access to multi-unit complexes to which fibre-to-the-premises is to be deployed

155A Overview

155B Interpretation

Statutory right of access to multi-unit complexes

155C Nature of statutory right of access to multi-unit complexes

155D Preconditions before statutory right of access to multi-unit complexes may be exercised

155E How statutory right of access to multi-unit complex must be exercised

Process

155F Requirements in respect of preliminary notice

155G Opting out of providing access under subpart

155H Requirements in respect of second notice

155I Access orders from District Court

Code

155J Preparation of Code

155K Approval and status of Code

Consumer complaints system

155L Compliance with rules and binding settlements

155M Offence to fail to comply with District Court order

156 Notices to be in writing [Repealed]

Part 4AA
Services provided using networks developed with Crown funding: Undertakings regime and Commerce Act 1986 authorisations

Subpart 1Preliminary provisions

156AA Overview

156AB Interpretation

Subpart 2Undertakings relating to networks developed with Crown funding as part of UFB initiative

156AC Purposes

Requirements for undertakings

156AD Main requirements for undertakings

156AE Minister may determine further requirements for undertakings

156AF Minister must issue and consult on draft determination

156AG Procedural requirements for determination

Process for submission and consideration of undertakings

156AH LFC must submit undertaking for approval by Minister

156AI Minister may approve or decline undertaking

Implementation of undertakings

156AJ Implementation of undertaking

156AK LFC must publish undertaking

Variation and termination of undertakings

156AL Variation of undertaking

156AM Procedure for variation of undertaking

156AN Clarification of undertaking

156AO Termination of undertaking

Effect of undertakings in relation to unbundling of certain services

156AP Commission may not recommend or investigate unbundling of point-to-multipoint layer 1 services

Enforcement of undertakings

156AQ Enforcement and remedies under Part 4A

156AR Power of court to grant relief in respect of undertakings

156AS Interrelationship of remedies

Subpart 3Information disclosure by LFCs with undertakings

156AT Purpose

156AU Commission must require disclosure by LFCs

156AV Further powers of Commission relating to information disclosure

156AW Commission may publish reports, etc, on information collected

Subpart 4Undertakings relating to networks developed with Crown funding as part of Rural Broadband Initiative

156AX Interpretation of this subpart

156AY Requirements for undertakings under this subpart

156AZ Application of provisions in subpart 1

Subpart 5Commerce Act 1986 authorisations in respect of Rural Broadband Initiative

156AZA Restrictive trade practices authorisations in respect of Telecom and Vodafone participation in Rural Broadband Initiative

Subpart 6Commerce Act 1986 authorisations in respect of Ultra-fast Broadband Initiative

156AZB Interpretation for this subpart

156AZC Restrictive trade practices authorisations in respect of participation in Ultra-fast Broadband Initiative

156AZD Business acquisition authorisations in respect of participation in Ultra-fast Broadband Initiative

Part 4A
Enforcement

Subpart 1Enforcement of statutory and regulatory provisions

Preliminary

156A Application of section 156B

156B Enforcement actions that Commission may take

156C Matters that Commission must take into account in deciding what enforcement action to take

Civil infringement notice

156D Civil infringement notice

156E Objection to civil infringement notice

156F Commission must consider objection

156G Effect of withdrawal of civil infringement notice

156H Consequence of not paying pecuniary penalty specified in civil infringement notice

156I Right to appeal

156J Decision on appeal

156K Commission may publish information about issue of civil infringement notice

Pecuniary penalty

156L Pecuniary penalty

156M Further penalty may be imposed for continuing breach

Subpart 2Enforcement of determinations, approved codes, and undertakings

156N Interpretation

156O Complaints of breach of enforceable matter

156P Enforcement by High Court

156Q Remedies for breach of enforceable matter

156R Limit on amount of pecuniary penalty

Part 5
Miscellaneous

157AA Minister must review regulatory framework

157 Regulations

158 Enactments amended

159 Certain provisions in 1987 Act repealed

160 Transitional provision for declarations made under section 2A of 1987 Act

161 Transitional provision relating to repeal of section 5C of 1987 Act

Schedule 1
Designated services and specified services

Schedule 2
Telecommunications access codes

Schedule 3
Procedure for altering regulated services

Schedule 3A
Undertakings

Schedule 3B
Annual telecommunications development levy

Schedule 4
Enactments amended


1 Title
  • This Act is the Telecommunications Act 2001.

Part 1
Preliminary

Subpart 1General

2 Commencement
  • This Act comes into force on the day after the date on which it receives the Royal assent.

3 Purpose
  • (1) The main purpose of this Act is to regulate the supply of telecommunications services.

    (2) To avoid doubt, nothing in subsection (1) or in any other provision of this Act limits the Resource Management Act 1991.

4 Overview
  • In this Act,—

    • (a) provisions concerning the functions of the Commission under this Act and the performance of those functions by members of the Commission (in particular, the Telecommunications Commissioner) are set out in subpart 2; and

    • (b) telecommunications services that are regulated are contained in Schedule 1 and are classified as designated services (Part 2 of Schedule 1) or specified services (Part 3 of Schedule 1); and

    • (c) supplementary provisions concerning the detail of those regulated telecommunications services may be—

      • (ii) provided in telecommunications access codes (Schedule 2) prepared by the Commission on its own initiative or formulated by the Telecommunications Industry Forum and approved by the Commission; and

    • (d) provisions concerning determinations by the Commission in respect of those regulated telecommunications services are set out in subparts 2 to 5 of Part 2; and

    • (e) provisions about altering regulated telecommunications services are set out in subpart 6 of Part 2 and Schedules 3 and 3A; and

    • (ea) provisions concerning the structural separation of Telecom are set out in Part 2A; and

    • (eb) provisions about the preparation and disclosure of information are set out in Part 2B; and

    • (f) provisions about the supply of certain telecommunications services under TSO instruments, the enforcement of those instruments, and contributions payable by certain telecommunications service providers to the suppliers of those telecommunications services are set out in Part 3; and

    • (g) provisions from Parts 1 and 1A of the 1987 Act about the following matters are set out in Part 4:

      • (i) network operators and connection to, and misuse of, a network (subpart 1):

      • (ii) maintenance of networks (subpart 2); and

    • (gaa) provisions about undertakings required to be given by providers of certain telecommunications services involving fibre optic communications networks constructed in whole or in part using Crown investment funding, restrictions on unbundling in respect of such service providers, and the preparation and disclosure of information are set out in Part 4AA; and

    • (ga) enforcement provisions are set out in Part 4A; and

    • (gb) provisions facilitating the establishment of 1 or more complaints systems for the purpose of addressing complaints by consumers against service providers are set out in Part 4B; and

    • (h) miscellaneous provisions about the repeal of certain provisions of the 1987 Act (including consequential amendments and transitional provisions) are set out in Part 5 and Schedule 4.

    Section 4(c)(ii): amended, on 22 December 2006, by section 4(1) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 4(e): amended, on 22 December 2006, by section 4(2) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 4(ea): substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 61 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 4(eb): inserted, on 22 December 2006, by section 4(3) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 4(gaa): inserted, on 1 July 2011, by section 88 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 4(ga): inserted, on 22 December 2006, by section 4(4) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 4(gb): inserted, on 22 December 2006, by section 4(4) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

5 Interpretation
  • In this Act, unless the context otherwise requires,—

    1987 Act means the Telecommunications Act 1987

    access provider

    • (a) means, in relation to a designated service or specified service, the person named or described in Part 2, or Part 3, of Schedule 1 as the access provider for the designated service or specified service; and

    • (b) means, in relation to a service that is supplied under a registered undertaking, the person that provided the undertaking under Schedule 3A

    access seeker

    • (a) means, in relation to a designated service or specified service, the person named or described in Part 2, or Part 3, of Schedule 1 as the access seeker for the designated service or specified service; and

    • (b) means, in relation to a service that is supplied under a registered undertaking, a service provider who seeks access to the service and who complies with any conditions set out in the registered undertaking for eligibility as an access seeker

    applicable access principles, in relation to a designated access service or specified service, means the access principles described in subpart 1 of Part 2, or Part 3, of Schedule 1 as the access principles for the designated access service or specified service

    applicable conditions, in relation to a designated service or specified service, means the conditions set out in Part 2, or Part 3, of Schedule 1 as the conditions for the designated service or specified service

    applicable final pricing principle, in relation to a designated access service, means the final pricing principle described in subpart 1 of Part 2 of Schedule 1 as the final pricing principle for the designated access service

    applicable initial pricing principle, in relation to a designated access service, means the initial pricing principle described in subpart 1 of Part 2 of Schedule 1 as the initial pricing principle for the designated access service

    approved code

    • (a) means a telecommunications access code that has been approved by the Commission under clause 9 or clause 10 of Schedule 2; and

    • (b) includes any amendment to an approved code that has been approved under either of those clauses

    auditor's report has the meaning set out in section 83(b)

    broadcasting has the same meaning as in section 2(1) of the Broadcasting Act 1989

    chief executive means the chief executive of the Ministry of Economic Development

    Commission means the Commerce Commission established by section 8 of the Commerce Act 1986

    computer record has the meaning set out in section 116(2)

    CPI means the Consumers Price Index (All Groups) published by Statistics New Zealand

    deemed TSO instrument has the meaning set out in section 71

    designated access service means a service described in subpart 1 of Part 2 of Schedule 1

    designated multinetwork service means a service described in subpart 2 of Part 2 of Schedule 1

    designated service means a designated access service or designated multinetwork service

    draft code

    • (a) means a draft telecommunications access code prepared by the Forum under clause 1 of Schedule 2; and

    • (b) includes a proposed amendment to, or proposed revocation of, an approved code

    eligible person means a person who is—

    • (a) registered with the Commission for the purpose of voting on a draft code under clause 4 of Schedule 2; and

    • (b) a member of the Forum

    end-user, in relation to a telecommunications service, means a person who is the ultimate recipient of that service or of another service whose provision is dependent on that service

    existing lines

    • (a) means any lines constructed by Telecom or any of its former subsidiaries before 1 April 1989; and

    • (b) includes any lines that were wholly or partly in existence, or for which work on the construction, erection, or laying commenced, before 1 April 1989

    existing residential line

    • (a) means a Telecom residential line (other than a party line or a second line) that was an active connection on 20 December 2001; and

    • (b) to avoid doubt, includes any such line that has been replaced or altered since 20 December 2001

    existing works

    • (a) means any works relating to the provision of telecommunications under the Post Office Act 1959 (or any former Act) that were wholly or partly in existence, or for which work on the construction, erection, or laying commenced, before 1 January 1988; and

    • (b) includes, for the purposes of subpart 2 of Part 4, any works relating to any conveyance that constitutes broadcasting under the Post Office Act 1959 (or any former Act) that were wholly or partly in existence, or for which work on the construction, erection, or laying commenced, before 1 January 1988; but

    • (c) does not include any works that, after that date, have been altered or moved or added to in a way that substantially alters their character or location, as the case may be

    fibre-to-the-premises access network has the meaning set out in section 156AB

    financial year means a period of 12 months beginning on 1 July in any year and ending on 30 June in the following year

    fixed PDN

    • (a) means a PDN, or that part of a PDN, that connects an end-user's building (or, in the case of commercial buildings, the building distribution frames) to a data switch or equivalent facility; and

    • (b) includes the data switch or equivalent facility and that part of the overall telecommunications link within the building that connects to the end-user's equipment

    fixed PSTN

    • (a) means a PSTN, or that part of a PSTN, that connects an end-user's building to the local switches or equivalent facilities; and

    • (b) includes those local switches or equivalent facilities

    fixed radio station means radio apparatus comprising transmitters or receivers, or a combination of transmitters and receivers, installed at a fixed location, for the purposes of carrying on a radiocommunications service

    Forum means the Telecommunications Industry Forum, which is a group that consists of at least 75% of all persons who are, for the time being, registered with the Commission for the purpose of voting on a draft code under clause 4 of Schedule 2

    liability allocation determination means a determination of the Commission prepared in accordance with section 87(1)(a)

    liable person means a person who provides a telecommunications service in New Zealand by means of some component of a PTN that is operated by the person

    line

    • (a) means a wire or a conductor of any other kind (including a fibre optic cable) used or intended to be used for the transmission or reception of signs, signals, impulses, writing, images, sounds, instruction, information, or intelligence of any nature by means of any electromagnetic system; and

    • (b) includes—

      • (i) any pole, insulator, casing, fixture, tunnel, or other equipment or material used or intended to be used for supporting, enclosing, surrounding, or protecting any of those wires or conductors; and

      • (ii) any part of a line

    local authority means a local authority within the meaning of the Local Government Act 2002

    Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act

    Ministry means the Ministry responsible for administering this Act

    net cost,—

    • (a) in relation to an instrument that is declared to be a TSO instrument under section 70, means the unavoidable net incremental cost to an efficient service provider of providing the service required by the TSO instrument to commercially non-viable end-users; and

    • (b) in relation to a deemed TSO instrument that requires the supply of a service to end-users, means the unavoidable net incremental cost to an efficient service provider of providing the service required by the TSO instrument to all end-users connected to existing residential lines; and

    • (c) in relation to a deemed TSO instrument that requires the supply of a wholesale service that is an input to a service supplied to end-users, means the unavoidable net incremental cost to an efficient service provider of providing the service required by the TSO instrument to another service provider for the purpose of making a retail service available to all end-users connected to existing residential lines

    net revenue means the range of direct and indirect revenues and associated benefits derived from providing telecommunications services to all end-users connected to existing residential lines, less the costs of providing those services to those end-users

    network means a system comprising telecommunication links to permit telecommunication

    network operator means any person declared under—

    • (a) section 105 to be a network operator for the purposes of this Act or any provision of this Act; or

    • (b) section 2A of the 1987 Act (as it read immediately before the commencement of this Act) to be a network operator for the purposes of that Act or any provision of that Act

    party or parties means,—

    • (a) for a determination made under section 27 or a residual terms determination made under section 30ZB, the access seeker and the access provider of the service; and

    • (b) for a standard terms determination made under section 30M, a designated multinetwork service determination made under section 39, or an approved code under Schedule 2, all access seekers and all access providers of the service (whether they became an access seeker or an access provider before or after the determination was made or the code was approved); and

    • (c) for a registered undertaking under Schedule 3A, the access provider of the service and the Commission

    PDN or public data network means a data network used, or intended for use, in whole or in part, by the public

    price (except in subpart 6 of Part 2A) includes—

    • (a) valuable consideration in any form, whether direct or indirect; and

    • (b) any consideration that in effect relates to the acquisition of goods or services or the acquisition or disposition of any interest in land, even though it ostensibly relates to any other matter or thing

    proposed addition has the meaning set out in clause 8(1)(b) of Schedule 3

    proposed alteration has the meaning set out in clause 1(1) of Schedule 3

    proposed omission has the meaning set out in clause 8(1)(a) of Schedule 3

    PSTN or public switched telephone network means a dial-up telephone network used, or intended for use, in whole or in part, by the public for the purposes of providing telecommunication between telephone devices

    PTN or public telecommunications network

    • (a) means a network used, or intended to be used, in whole or in part, by the public for the purpose of telecommunication:

    • (b) includes—

      • (i) a PSTN:

      • (ii) a PDN

    public notice has the meaning set out in section 6

    qualified auditor means a person who is qualified for appointment as an auditor in accordance with any prescribed requirements or, if there are no prescribed requirements, any requirements of the Commission

    qualified revenue means the revenue (as determined in accordance with any specifications set by the Commission) that a liable person receives during a financial year for supplying either or both of the following (excluding any amount paid to the liable person by the Crown as compensation for the cost of complying with a TSO instrument that contains a specified amount):

    • (a) telecommunications services by means of its PTN:

    • (b) telecommunications services by means that rely primarily on the existence of its PTN or any other PTN

    radio frequency means electromagnetic waves of frequencies between 9 kilohertz and 3 000 gigahertz, propagated in space without artificial guide

    registered undertaking has the meaning set out in clause 1 of Schedule 3A

    road includes—

    • (a) a street and any other place to which the public have access, whether as of right or not; and

    • (b) land that is vested in a local authority for the purpose of a road as shown on a deposited survey plan; and

    • (c) all bridges, culverts, ferries, and fords that form part of any road, street, or any other place referred to in paragraph (a) or paragraph (b)

    service provider, except in subpart 3 of Part 4 and Part 4AA, means a provider of a telecommunications service

    specified amount has the meaning set out in section 71A

    specified service means a service described in Part 3 of Schedule 1

    subsidiary has the same meaning as in sections 5 and 6 of the Companies Act 1993

    Telecom

    • (a) means Telecom Corporation of New Zealand Limited; and

    • (b) includes any of its subsidiaries

    telecommunication

    • (a) means the conveyance by electromagnetic means from one device to another of any encrypted or non-encrypted sign, signal, impulse, writing, image, sound, instruction, information, or intelligence of any nature, whether for the information of any person using the device or not; and

    • (b) for the purposes of subpart 2 of Part 4, includes any conveyance that constitutes broadcasting; but

    • (c) for all other purposes, does not include any conveyance that constitutes broadcasting

    telecommunication link means any line, radio frequency, or other medium used for telecommunication

    telecommunications access code has the meaning set out in section 7(1)

    Telecommunications Commissioner means the Telecommunications Commissioner appointed under section 9(3)

    telecommunications service means any goods, services, equipment, and facilities that enable or facilitate telecommunication

    telephone device means any terminal device capable of being used for transmitting or receiving any communications over a network designed for the transmission of voice frequency communication

    TSO or telecommunications service obligations means obligations in relation to a TSO instrument

    TSO charges means the amounts payable to a TSO provider by the Crown under section 94L(1)

    TSO cost allocation determination means a determination prepared by the Commission in accordance with sections 87 to 91

    TSO cost calculation determination means a determination of the Commission prepared in accordance with section 94J(1)(a)

    TSO instrument or telecommunications service obligation instrument means—

    • (a) an instrument that is declared to be a TSO instrument under section 70:

    • (b) a deemed TSO instrument

    TSO provider or telecommunications service obligation provider means a provider of a telecommunications service under a TSO instrument

    wireless works means any works relating to the provision of any wireless or mobile telecommunications services

    working day means a day of the week other than—

    • (a) Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, the Sovereign's birthday, Labour Day, and Waitangi Day; and

    • (b) the day observed in the appropriate area as the anniversary of the province of which the area forms part; and

    • (c) a day in the period commencing with 25 December in any year and ending with 2 January in the following year; and

    • (d) if 1 January in any year falls on a Friday, the following Monday; and

    • (e) if 1 January in any year falls on a Saturday or a Sunday, the following Monday and Tuesday; and

    • (f) if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday

    works includes—

    • (a) a line and any instrument, furniture, plant, office, building, machinery, engine, excavation, or work, of whatever description, used in relation to, or in any way connected with, a line; and

    • (b) a fixed radio station.

    Compare: 1987 No 116 s 2(1), (1A)

    Section 5 access provider: substituted, on 22 December 2006, by section 5(1) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 5 access seeker: substituted, on 22 December 2006, by section 5(2) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 5 constitution of Telecom: repealed, on 1 July 2011, by section 4(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 CPI: inserted, on 1 July 2011, by section 4(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 existing residential line: inserted, on 1 July 2011, by section 4(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 existing works: substituted, on 17 May 2005, by section 3(1) of the Telecommunications Amendment Act 2005 (2005 No 70).

    Section 5 fibre-to-the-premises access network: inserted, on 1 July 2011, by section 88 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 financial year: substituted, on 1 July 2011, by section 4(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 KSO: repealed, on 1 July 2011, by section 4(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 liability allocation determination: inserted, on 1 July 2011, by section 4(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 liable person: substituted, on 1 July 2011, by section 4(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 liable person's TSO-qualified revenue: repealed, on 1 July 2011, by section 4(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 local authority: substituted, on 1 July 2003, by section 262 of the Local Government Act 2002 (2002 No 84).

    Section 5 local loop network: repealed, on 22 December 2006, by section 5(6) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 5 Ministry: inserted, on 1 July 2011, by section 4(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 net cost: substituted, on 1 July 2011, by section 4(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 net cost paragraph (b): substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 52(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 net cost paragraph (c): added, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 52(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 net revenue: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 52(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 network operator: amended, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 63(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 original KSO: repealed, on 1 July 2011, by section 4(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 party or parties: substituted, on 22 December 2006, by section 5(7) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 5 price: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 62 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 PTN or public telecommunications network: inserted, on 1 July 2011, by section 4(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 qualified revenue: inserted, on 1 July 2011, by section 4(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 registered undertaking: inserted, on 22 December 2006, by section 5(8) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 5 service provider: amended, on 1 July 2011, by section 88 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 specified amount: amended, on 22 December 2006, by section 5(9) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 5 telecommunication: substituted, on 17 May 2005, by section 3(2) of the Telecommunications Amendment Act 2005 (2005 No 70).

    Section 5 TSO charges: inserted, on 1 July 2011, by section 4(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 TSO cost calculation determination: substituted, on 1 July 2011, by section 4(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 TSO instrument or telecommunications service obligation instrument: substituted, on 1 July 2011, by section 4(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 TSO provider or telecommunications service obligation provider: inserted, on 22 December 2006, by section 5(11) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 5 TSO provider's TSO-qualified revenue: repealed, on 1 July 2011, by section 4(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 TSP or telecommunications service provider: repealed, on 22 December 2006, by section 5(11) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 5 wireless works: inserted, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 5 working day paragraph (e): replaced, on 1 January 2014, by section 8 of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19).

    Section 5 working day paragraph (f): inserted, on 1 January 2014, by section 8 of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19).

6 Public notice
  • (1) Subject to subsection (2), if, under this Act, the Commission is required to give public notice of any matter, the Commission must—

    • (a) publish a notice of the matter, or cause a notice of the matter to be published, in the Gazette; and

    • (b) at all reasonable times, make the matter available for inspection on the Commission's website in an electronic form that is publicly accessible.

    (2) If the Commission is required to give public notice of any matter under this Act, nothing in this Act requires the Commission to include in that public notice any information that would, in the opinion of the Commission, be likely to unreasonably prejudice the commercial position of the person who supplied, or who is the subject of, the information.

7 Telecommunications access codes
  • (1) In this Act, telecommunications access code means an access code for 1 or more—

    • (a) designated services or specified services:

    • (b) services supplied under a registered undertaking.

    (2) Schedule 2 sets out provisions that apply to telecommunications access codes.

    Section 7(1): substituted, on 22 December 2006, by section 6 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

8 Act binds the Crown
  • This Act binds the Crown.

Subpart 2Commerce Commission

Telecommunications Commissioner

9 Appointment of Telecommunications Commissioner
  • (1) There must be a Telecommunications Commissioner.

    (2) The Telecommunications Commissioner is a member of the Commission as provided in section 9(3) of the Commerce Act 1986.

    (3) Subject to subsection (4), the Telecommunications Commissioner must be appointed by the Governor-General on the recommendation of the Minister.

    (3A) Subsection (3) applies despite section 28(1)(b) of the Crown Entities Act 2004.

    (4) No person may be recommended for appointment as the Telecommunications Commissioner unless, in the opinion of the Minister, that person is qualified for appointment, having regard to the functions and powers of the Commission, whether under this Act or any other enactment.

    (5) For the purposes of subsection (4), a person is qualified for appointment by virtue of that person's knowledge of, or experience in, the telecommunications industry or any other industry, commerce, economics, law, accountancy, public administration, or consumer affairs.

    (6) Subsections (4) and (5) do not limit section 29 of the Crown Entities Act 2004.

    Section 9(2): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Section 9(3A): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Section 9(6): substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

9A Functions of Commission in relation to sector monitoring and information dissemination
  • (1) In addition to the other functions conferred on the Commission by this Act, the Commission—

    • (a) must monitor competition in telecommunications markets and the performance and development of telecommunications markets; and

    • (b) may conduct inquiries, reviews, and studies (including international benchmarking) into any matter relating to the telecommunications industry or the long-term benefit of end-users of telecommunications services within New Zealand; and

    • (c) must make available reports, summaries, and information about the things referred to in paragraphs (a) and (b).

    (2) The function in subsection (1)(c) does not require the Commission to release all documents that the Commission produces or acquires under this section.

    Compare: 1986 No 5 s 25; 1986 No 121 s 6

    Section 9A: inserted, on 22 December 2006, by section 7 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

10 Performance of Commission's functions
  • (1) Subject to subsection (2) and sections 15 and 17,—

    • (a) the Telecommunications Commissioner and no fewer than 2 other members of the Commission must—

      • (i) make every determination in respect of a designated multinetwork service under section 39; and

      • (ii) make every pricing review determination under section 51; and

      • (iii) make every liability allocation determination under section 87; and

      • (iv) make every TSO cost calculation determination under section 94J; and

    • (ab) the determinations referred to in paragraph (a) must, if the Telecommunications Commissioner and the other members of the Commission are not unanimous in their view, be made in accordance with the majority view; and

    • (b) the Telecommunications Commissioner must report to the Minister about every proposed alteration to Schedule 1 in any of the ways set out in sections 66 and 67 following consideration by the Telecommunications Commissioner and no fewer than 2 other members of the Commission in accordance with clause 4 of Schedule 3, and—

      • (i) the recommendation included in the final report to the Minister must be supported by the majority of the Telecommunications Commissioner and the other members of the Commission; and

      • (ii) the final report must include the majority view and any dissenting views; and

    • (c) every function of the Commission under this Act (other than any of the functions set out in paragraphs (a) and (b)) must be performed—

      • (i) by the Telecommunications Commissioner alone; or

      • (ii) if the Telecommunications Commissioner requests the chairperson of the Commission to make 2 other members of the Commission available for the performance of a particular function and the chairperson agrees to that request, by the Telecommunications Commissioner and 2 other members of the Commission.

    (2) If there is no Telecommunications Commissioner or if the Telecommunications Commissioner is for any reason unable to perform the functions of the Commission that would otherwise have been performed by him or her under this Act,—

    • (a) those functions must be performed by the chairperson of the Commission; and

    • (b) every reference in this Act to the Telecommunications Commissioner must, unless the context otherwise requires, be read as a reference to the chairperson of the Commission.

    (3) The chairperson of the Commission is responsible for determining which members of the Commission, other than the Telecommunications Commissioner, must perform the functions referred to in subsection (1).

    (4) The quorum requirements in section 15(4) of the Commerce Act 1986 do not apply if the Telecommunications Commissioner is performing functions alone under section 10(1)(c)(i).

    Section 10(1)(a): substituted, on 1 July 2011, by section 5 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 10(1)(ab): inserted, on 1 July 2011, by section 5 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 10(1)(b): substituted, on 1 July 2011, by section 5 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 10(1)(c)(ii): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Section 10(2)(a): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Section 10(2)(b): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Section 10(3): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Section 10(4): added, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Levy

11 Levy
  • (1) Every service provider, or class of service providers, specified in regulations made under subsection (3) must pay to the Minister, in each financial year or part financial year (as the case may require), a levy of an amount stated in, or calculated or set or reset in accordance with, those regulations for, or in connection with,—

    • (a) the performance of the Commission's functions and duties under this Act; and

    • (b) the exercise of the Commission's powers under this Act.

    (2) Subsection (1) applies irrespective of the fact that the regulations are made and come into effect after the date on which the financial year or part financial year commences.

    (3) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations—

    • (a) specifying the amounts of levies payable under this section:

    • (b) providing for the method by which those levies will be calculated:

    • (c) specifying the criteria and other requirements by and against which those levies will be set or reset:

    • (d) specifying the financial year or part financial year to which those levies apply:

    • (e) providing for the payment and collection of those levies:

    • (f) exempting any service provider or class of service providers from paying levies under this section:

    • (g) providing for waivers or refunds of the whole or any part of any levy paid by any service provider or class of service providers under this section.

12 Levy for first financial year or part financial year
  • (1) Every service provider, or class of service providers, specified in regulations made under subsection (3) must pay to the Minister, for the first financial year or part financial year (as the case may require), a levy of an amount stated in, or calculated or set or reset in accordance with, those regulations for, or in connection with,—

    • (a) the preparation of the performance of, and the performance of, the Commission's functions and duties under this Act; and

    • (b) the preparation of the exercise of, and the exercise of, the Commission's powers under this Act.

    (2) The levy for the first financial year or part financial year may include the costs incurred from 30 June 2001 by the Commission for, or in connection with, the matters set out in subsection (1)(a) or (b).

    (3) Subsections (1) and (2) apply irrespective of the fact that the regulations are made and come into effect after the date on which the first financial year or part financial year commences.

    (4) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations—

    • (a) specifying the amount of levy payable under this section:

    • (b) providing for the method by which the levy will be calculated:

    • (c) specifying the criteria and other requirements by and against which the levy will be set or reset:

    • (d) specifying the first financial year or part financial year to which the levy applies:

    • (e) providing for the payment and collection of the levy:

    • (f) exempting any service provider or class of service providers from paying the levy under this section:

    • (g) providing for waivers or refunds of the whole or any part of any levy paid by any service provider or class of service providers under this section.

13 Minister must consult before making recommendation under section 11(3) or section 12(4)
  • The Minister must not make any recommendation under section 11(3) or section 12(4) without first consulting those persons and organisations that the Minister considers appropriate having regard to the subject matter of the proposed regulations.

14 Late payment of levy
  • (1) If any service provider liable to pay the levy fails to pay the whole amount of that levy by the date specified in regulations made under section 11(3) or section 12(4), the service provider must pay interest on the unpaid amount at the rate of 1.5% per month calculated from the date payment is due.

    (2) Interest will be calculated in monthly instalments for each month, or part of each month, that the payment is due.

    (3) The amount of any unpaid levy or interest is recoverable in any court of competent jurisdiction as a debt due to the Crown.

Application of Commerce Act 1986

15 Application of Commerce Act 1986 and Crown Entities Act 2004
  • The following provisions of the Commerce Act 1986 apply with any necessary modifications:

    • (a) [Repealed]

    • (b) section 13 (termination of appointment of members):

    • (c) [Repealed]

    • (e) [Repealed]

    • (f) section 98 (Commission may require person to supply information or documents or give evidence):

    • (h) section 99 (powers of Commission to take evidence):

    • (ha) sections 99B(a) and 99C to 99P (assistance to overseas regulators), as if—

      • (i) references in those sections to competition law functions, or functions in relation to competition law, were references to functions relating to the regulation of telecommunications; and

      • (ii) references in those sections to the Minister were references to the Minister responsible for telecommunications:

    • (i) section 100 (powers of Commission to prohibit disclosure of information, documents, and evidence):

    • (j) section 100A (Commission may state case for opinion of High Court):

    • (n) [Repealed]

    Section 15 heading: amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Section 15(a): repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Section 15(c): repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Section 15(d): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Section 15(e): repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Section 15(g): amended, on 1 October 2012, by section 339(2) of the Search and Surveillance Act 2012 (2012 No 24).

    Section 15(ha): inserted, on 24 October 2012, by section 4 of the Telecommunications (International Co-operation) Amendment Act 2012 (2012 No 87).

    Section 15(n): repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

16 Application of section 98A of Commerce Act 1986
  • A search warrant may be issued under section 98A(2) of the Commerce Act 1986, and powers may be exercised under that warrant, only for the purposes of—

    • (a) ascertaining whether a person has done any of the following things:

      • (ii) contravened section 103 (except subsection (1)(c)) of the Commerce Act 1986:

    • (b) obtaining information and documents that have been requested by the Commission under section 82(b) or 83(1)(a) of this Act or section 98 of the Commerce Act 1986 and that have not been provided within the required time.

    Section 16(b): amended, on 1 July 2011, by section 6 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

17 Telecommunications Commissioner to consent to delegation of some functions and powers of Commission
  • If there is a Telecommunications Commissioner, the Telecommunications Commissioner's consent must be first obtained for the delegation, under section 73 of the Crown Entities Act 2004, of a function or power of the Commission that would normally be performed or exercised by the Telecommunications Commissioner.

    Section 17 heading: substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Section 17: amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Part 2
Designated services and specified services

Subpart 1Preliminary

18 Purpose
  • (1) The purpose of this Part and Schedules 1 to 3 is to promote competition in telecommunications markets for the long-term benefit of end-users of telecommunications services within New Zealand by regulating, and providing for the regulation of, the supply of certain telecommunications services between service providers.

    (2) In determining whether or not, or the extent to which, any act or omission will result, or will be likely to result, in competition in telecommunications markets for the long-term benefit of end-users of telecommunications services within New Zealand, the efficiencies that will result, or will be likely to result, from that act or omission must be considered.

    (2A) To avoid doubt, in determining whether or not, or the extent to which, competition in telecommunications markets for the long-term benefit of end-users of telecommunications services within New Zealand is promoted, consideration must be given to the incentives to innovate that exist for, and the risks faced by, investors in new telecommunications services that involve significant capital investment and that offer capabilities not available from established services.

    (3) Except as otherwise expressly provided, nothing in this Act limits the application of this section.

    (4) Subsection (3) is for the avoidance of doubt.

    Section 18(2A): inserted, on 1 July 2011, by section 7 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

19 Commission and Minister must consider purpose set out in section 18 and additional matters
  • If the Commission or the Minister (as the case may be) is required under this Part or any of Schedules 1, 3, and 3A to make a recommendation, determination, or a decision, the Commission or the Minister must—

    • (a) consider the purpose set out in section 18; and

    • (b) if applicable, consider the additional matters set out in Schedule 1 regarding the application of section 18; and

    • (c) make the recommendation, determination, or decision that the Commission or Minister considers best gives, or is likely to best give, effect to the purpose set out in section 18.

    Section 19: amended, on 22 December 2006, by section 8(1) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 19(c): amended, on 22 December 2006, by section 8(2) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

19A Commission to have regard to economic policies of Government
  • (1) In the exercise of its powers under Schedule 3, the Commission must have regard to any economic policies of the Government that are transmitted, in writing, to the Commission by the Minister.

    (2) The Minister must, as soon as practicable after transmitting a statement of economic policy of the Government to the Commission under subsection (1),—

    • (a) arrange for a copy of that statement to be published in the Gazette; and

    • (b) present a copy of that statement to the House of Representatives.

    (3) To avoid doubt, a statement of economic policy of the Government transmitted to the Commission under this section is not a direction for the purposes of Part 3 of the Crown Entities Act 2004.

    Section 19A: inserted, on 22 December 2006, by section 9 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Subpart 2Determinations for designated access services and specified services

Application

20 Application
  • (1) An access seeker or an access provider of a designated access service or specified service may apply to the Commission for a determination of all or some of the terms on which the service must be supplied during the period of time specified in the application.

    (2) For the purposes of subsection (1), the terms on which the service must be supplied—

    • (a) may, in the case of a designated access service, include the price payable by the access seeker for the service; and

    • (b) must, in the case of a specified service, exclude the price payable by the access seeker for the service.

21 When application must be treated as application for pricing review determination
  • An application by an access seeker or an access provider of a designated access service for a determination that relates to the price payable by the access seeker for the service must be treated as an application for a pricing review determination under section 42 if the only term at issue is the discount specified in the applicable initial pricing principle.

22 When application may not be made
  • (1) Despite section 20, no person may apply for a determination if—

    • (a) [Repealed]

    • (b) [Repealed]

    • (c) that person has not made reasonable attempts to negotiate the terms of supply of the service with the person who would otherwise be a party to the determination; or

    • (ca) the standard terms development process for the service is proceeding or a standard terms determination for the service is in force; or

    • (d) the applicable conditions in relation to the service (if any) have not been met.

    (2) However, subsection (1)(ca) does not prevent a person from applying for a residual terms determination under section 30V.

    (3) The Commission may investigate whether subsection (1)(d) applies either at the time—

    • (a) it receives an application made under section 20; or

    • (b) it prepares a determination under section 27.

    (4) However, if the Commission is satisfied, at any time, that the applicable conditions in relation to the service have not been met, the Commission must discontinue—

    • (a) all of its investigation; or

    • (b) as the case may be, that part of its investigation that relates to the market in which those conditions have not been met.

    Section 22(1)(a): repealed, on 22 December 2006, by section 10(1) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 22(1)(b): repealed, on 22 December 2006, by section 10(1) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 22(1)(ca): inserted, on 22 December 2006, by section 10(2) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 22(2): added, on 22 December 2006, by section 10(3) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 22(3): added, on 22 December 2006, by section 10(3) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 22(4): added, on 22 December 2006, by section 10(3) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

22A Effect of application on existing agreement for supply of designated access service or specified service
  • (1) This section applies if an access seeker of a designated access service or specified service applies for a determination under section 27 while an agreement is in force between that access seeker and the access provider of the service for the supply of that service or of any other service.

    (2) The access provider must not, as a direct or indirect result of the access seeker making the application for the determination, act in a way that is, or is likely to be, prejudicial to the interests of the access seeker.

    (3) The access provider may discontinue the supply of the service under the agreement only if—

    • (a) a determination is made under section 27 for that service or a comparable service; and

    • (b) the access provider begins to supply the service on the terms specified in the determination.

    (4) Subsection (3) does not apply if, before the date on which the determination is made, the agreement—

    • (a) has already expired; or

    • (b) has been terminated for a reason that is unrelated to the making of the application.

    (5) If there is any inconsistency between the determination and the agreement, the determination prevails.

    Section 22A: inserted, on 22 December 2006, by section 11 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

23 Requirements for application
  • An application made under section 20 must—

    • (a) be in writing; and

    • (b) be given in the prescribed manner, if any; and

    • (c) contain the prescribed information, if any; and

    • (d) be accompanied by the prescribed fee, if any.

Notification

24 Commission must notify parties
  • On receiving an application made in accordance with section 23, the Commission must—

    • (a) notify the parties to the determination in writing that the application has been received; and

    • (b) provide a copy of the application to the other party to the determination; and

    • (c) request the parties to the determination to comment on the matter by written notice to the Commission not later than 10 working days after receipt of the notice from the Commission.

Investigation

25 Commission must decide whether to investigate
  • (1) The Commission must make reasonable efforts to do the following things not later than 10 working days after the date by which the parties may comment on the application:

    • (a) decide whether or not to investigate the matter:

    • (b) give written notice of its decision to the parties:

    • (c) give public notice of its decision:

    • (d) request the parties to the determination to make submissions on the matter by written notice to the Commission not later than 10 working days after receipt of the notice from the Commission.

    (2) Subsection (1)(d) applies only if the Commission has decided under subsection (1)(a) to investigate the matter.

Consultation

26 Consultation or conferences
  • If the Commission considers that persons, other than the parties to the determination, have a material interest in the matter to be investigated, the Commission must, before preparing a determination under section 27, either consult those persons or hold conferences in relation to the matter.

Determination

27 Preparation of determination
  • After investigating the matter, the Commission must—

    • (a) prepare a determination; and

    • (b) give a copy of the determination to the parties to the determination; and

    • (c) give public notice of the determination.

28 When determination must be prepared
  • (1) The Commission must make reasonable efforts to prepare a determination under section 27,—

    • (a) if the determination does not include the price payable for the supply of the service, not later than 40 working days after it gave written notice under section 25(1)(b); or

    • (b) if the determination includes the price payable for the supply of the service, not later than 50 working days after it gave written notice under section 25(1)(b).

    (2) If, despite making reasonable efforts, the Commission is unable to do the things set out in subsection (1) within the relevant time limit, the Commission must give to the parties concerned written reasons for not meeting the relevant time limit.

29 Requirements for determination
  • A determination must, in the opinion of the Commission,—

    • (a) be made in accordance with—

      • (i) the applicable access principles and any limits on those applicable access principles; and

      • (ii) any regulations made in respect of the applicable access principles and any limits on those applicable access principles; and

    • (b) comply with any relevant approved codes; and

    • (c) in the case of a determination regarding a designated access service, be made in accordance with—

      • (i) the applicable initial pricing principle (as affected, if at all, by clause 2 or clause 3 of Schedule 1); and

      • (ii) any regulations that specify how the applicable initial pricing principle must be applied.

30 Matters to be included in determination
  • (1) A determination must include—

    • (a) the terms on which the service must be supplied; and

    • (b) the reasons for the determination; and

    • (c) the terms and conditions (if any) on which the determination is made; and

    • (d) the actions (if any) that a party to the determination must do or refrain from doing; and

    • (e) the expiry date of the determination.

    (2) To avoid doubt, a determination may also include, without limitation, terms concerning any or all of the following matters:

    • (a) dispute resolution procedures:

    • (b) the consequences of a breach of the determination (including provision for set-off or withholding rights, or liquidated damages):

    • (c) suspension and termination of the service:

    • (d) procedures for, or restrictions on, assignment of the service.

    Section 30(2): added, on 22 December 2006, by section 12 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Subpart 2AStandard terms determinations for designated access services and specified services

  • Subpart 2A: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Preliminary

  • Heading: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30A Overview of subpart
  • (1) This subpart enables the Commission to make, as an alternative to a determination made under section 27, a determination of the terms on which a designated access service or specified service must be supplied with reference to all access seekers and all access providers of the service.

    (2) Accordingly, this subpart—

    • (a) provides a process for the development of standard terms for the supply of the service (sections 30C to 30J):

    • (b) provides for the Commission to make, and review, a standard terms determination (sections 30K to 30R):

    • (c) specifies how a standard terms determination is to apply (section 30S):

    • (d) clarifies the interface between a determination made under section 27 and a standard terms determination (section 30T):

    • (e) provides a mechanism that allows parties to a standard terms determination to apply for a residual terms determination if they wish to adjust, as between themselves, the application of terms specified in the standard terms determination (sections 30U to 30ZD).

    (3) This section is intended only as a guide to the general scheme and effect of this subpart.

    Section 30A: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30B Interpretation
  • In this subpart,—

    change in circumstances, in relation to the price payable for a service, means any change in relevant circumstances since the last date on which that price was calculated (for example, any change to the terms of the service)

    regulated terms means the terms set by any New Zealand or overseas regulator for any telecommunications service.

    Section 30B: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Standard terms development process

  • Heading: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30C When standard terms development process may be initiated
  • (1) The Commission may, on its own initiative, initiate the standard terms development process for a designated access service or specified service.

    (2) However, the Commission may not initiate that standard terms development process if the applicable conditions in relation to the service (if any) have not been met.

    (3) The Commission may investigate whether the applicable conditions in relation to the service have been met either—

    • (a) before deciding to initiate the standard terms development process; or

    • (b) at the time it prepares a standard terms determination under section 30M.

    (4) However, if the Commission is satisfied, at any time, that the applicable conditions in relation to the service have not been met, the Commission must discontinue—

    • (a) all of its investigation; or

    • (b) as the case may be, that part of its investigation that relates to the market in which those conditions have not been met.

    (5) For the purposes of subsection (1), the Commission may, if it considers it appropriate in the circumstances, initiate a single combined standard terms development process for 2 or more designated access services or specified services.

    Section 30C: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30D Commission must give public notice if Commission initiates standard terms development process
  • The Commission must give public notice that it has initiated the standard terms development process for a designated access service or specified service not later than 10 working days after initiating that process under section 30C.

    Section 30D: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30E Commission must conduct scoping workshop
  • (1) The Commission must conduct 1 or more scoping workshops in relation to a designated access service or specified service.

    (2) The purpose of a scoping workshop is to provide the Commission with information to assist it in specifying—

    • (a) a reasonable period of time within which an access provider must submit a standard terms proposal under section 30F; and

    • (b) any additional requirements for that proposal under section 30F(2).

    (3) A scoping workshop must be—

    • (a) open to all parties to the standard terms determination; and

    • (b) conducted by an employee or agent of the Commission in a manner, and within the time, that the Commission thinks fit.

    (4) To avoid doubt, this section does not prevent the Commission from conducting a workshop in relation to any other matter, nor does it affect the matters that may be considered by the Commission in any other workshop.

    Section 30E: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Standard terms proposal

  • Heading: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30F Call for standard terms proposal
  • (1) After giving public notice under section 30D and conducting a scoping workshop under section 30E, the Commission must—

    • (a) give written notice to 1 or more access providers of the designated access service or specified service requiring them to submit to the Commission, by the date specified in the notice, a standard terms proposal that complies with section 30G; and

    • (b) give public notice of that requirement.

    (2) The Commission may include in the written notice under subsection (1)(a) any additional requirements that it thinks fit to specify, having regard to any relevant matters (for example, the terms and conditions of any commercial agreement or regulated terms for any service in New Zealand or overseas).

    (3) An access provider of the designated access service or specified service to whom written notice is given under subsection (1)(a) must comply with the requirement or requirements contained in that notice.

    (4) The written notice under subsection (1)(a) must be accompanied by a copy of—

    • (b) any additional requirements that the Commission specifies under subsection (2).

    Section 30F: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30G Requirements for standard terms proposal
  • (1) A standard terms proposal must—

    • (a) specify sufficient terms to allow, without the need for the access seeker to enter into an agreement with the access provider, the designated access service or specified service to be made available within the time frames specified under paragraph (c); and

    • (b) provide an explanation of, and reasons for, those terms; and

    • (c) state the time frames within which the access provider must make the service available to—

      • (i) every person who is already an access seeker when the standard terms determination is made; and

      • (ii) every person who becomes an access seeker after the standard terms determination is made; and

    • (d) be consistent with the description of the service in Part 2 or Part 3 of Schedule 1, as the case may be; and

    • (e) be consistent with the applicable access principles and any limits on those applicable access principles; and

    • (f) comply with any additional requirements that the Commission has specified under section 30F(2).

    (2) The terms referred to in subsection (1)(a)—

    • (a) must include the price payable for the supply of the service if that price has been determined in accordance with the applicable initial pricing principle or the applicable final pricing principle in a previous determination made under section 27; or

    • (b) must not include that price if that is not the case.

    (3) The Commission may refuse to consider a standard terms proposal that—

    • (a) fails to comply with this section:

    • (b) is submitted late.

    Section 30G: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30H Failure to submit standard terms proposal
  • (1) If an access provider of a designated access service or specified service fails to submit, in response to a notice under section 30F, a standard terms proposal that complies with section 30G, the Commission may—

    • (a) give written notice to another access provider, or an access seeker of the service requesting that access provider or, as the case may be, that access seeker to submit to the Commission, by a further date specified in the notice, a standard terms proposal that complies with section 30G:

    • (b) prepare a draft standard terms determination under section 30K even though it has not received a standard terms proposal from an access provider or an access seeker of the service.

    (2) The written notice under subsection (1)(a) must be accompanied by a copy of—

    • (b) any additional requirements that the Commission specifies under section 30F(2).

    Section 30H: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30I Receipt of standard terms proposal
  • As soon as practicable after receiving a standard terms proposal that complies with section 30G, the Commission must make reasonable efforts to do the following things:

    • (a) notify all parties to the determination in writing that the proposal has been received:

    • (b) give public notice of the receipt of the proposal:

    • (c) include in the public notice—

      • (i) information about where a copy of the proposal may be viewed and obtained; and

      • (ii) the closing date for submissions on the proposal.

    Section 30I: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30J Requirement for submissions
  • A submission to the Commission on a standard terms proposal—

    • (a) may be made about any matter to which the proposal relates; but

    • (b) must set out the wording of any additional or alternative terms that are proposed to be included in the standard terms determination.

    Section 30J: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Draft standard terms determination

  • Heading: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30K Draft standard terms determination
  • (1) The Commission must make reasonable efforts to do the following things not later than 60 working days after the closing date for submissions on a standard terms proposal:

    • (a) determine the terms on which the service must be supplied; and

    • (b) prepare a draft standard terms determination containing those terms; and

    • (c) provide a copy of the draft standard terms determination to all parties to the determination; and

    • (d) give public notice of the draft standard terms determination; and

    • (e) include in the public notice the closing date for submissions.

    (2) A draft standard terms determination for a designated access service must also include,—

    • (a) if the price or prices payable for the service have been determined in accordance with the applicable final pricing principle in a determination made under section 51, either of the following:

      • (i) that price or those prices; or

      • (ii) an updated calculation of that price or those prices if the Commission considers it to be necessary because of a change in circumstances; or

    • (b) if paragraph (a) does not apply, and the price or prices payable for the service have been determined in accordance with the applicable initial pricing principle in a determination made under section 27, any of the following:

      • (i) that price or those prices; or

      • (ii) an updated calculation of that price or those prices if the Commission considers it to be necessary because of a change in circumstances; or

      • (iii) if the price or prices referred to in subparagraph (i) or (ii) are higher than the existing price charged by the relevant access provider to the majority of its access seekers for the service, that existing price; or

    • (c) if neither paragraph (a) nor paragraph (b) applies, the price or prices determined by the Commission in accordance with the applicable initial pricing principle.

    Section 30K: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30L Consultation or conferences
  • If the Commission considers that persons other than the parties to the determination have a material interest in a standard terms determination, the Commission must, before preparing the standard terms determination under section 30M, either consult those persons or hold conferences in relation to the matter.

    Section 30L: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Standard terms determination

  • Heading: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30M Standard terms determination
  • (1) As soon as practicable after completing any consultation or conferences under section 30L, or if there is no consultation or there are no conferences, after the closing date for submissions under section 30K(1)(e), the Commission must—

    • (a) prepare a standard terms determination; and

    • (b) provide a copy of the standard terms determination to all parties to the determination; and

    • (c) give public notice of the standard terms determination.

    (2) A standard terms determination is neither a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act 2012 (and does not have to be presented to the House of Representatives under section 41 of that Act).

    Section 30M: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 30M(2): inserted, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

30N Commission's discretion to determine how standard terms determination is to be prepared
  • (1) The Commission may, if it considers it appropriate in the circumstances, comply with section 30M(a) by preparing—

    • (a) a standard terms determination relating to 2 or more designated access services or specified services that contains—

      • (i) terms of general application to all the services to which the standard terms determination relates; and

      • (ii) a separate schedule for each of those services that includes terms of specific application to that service; or

    • (b) a separate standard terms determination for each designated access service or specified service.

    (2) Instead of preparing a standard terms determination in each case, the Commission may also comply with section 30M(a) by adding a separate schedule that contains terms of specific application to a particular designated access service or specified service to an existing standard terms determination of the kind referred to in subsection (1)(a).

    Section 30N: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30O Matters to be included in standard terms determination: general
  • (1) A standard terms determination must—

    • (a) specify sufficient terms to allow, without the need for the access seeker to enter into an agreement with the access provider, the designated access service or specified service to be made available within the time frames specified under paragraph (b); and

    • (b) state the time frames within which the access provider must make the service available to—

      • (i) every person who is already an access seeker when the standard terms determination is made; and

      • (ii) every person who becomes an access seeker after the standard terms determination is made; and

    • (c) specify the reasons for the standard terms determination; and

    • (d) specify the terms and conditions (if any) on which the standard terms determination is made; and

    • (e) specify the actions (if any) that a party to the standard terms determination must take or refrain from taking.

    (2) To avoid doubt, a standard terms determination may also include, without limitation, terms concerning any or all of the following matters:

    • (a) dispute resolution procedures:

    • (b) the consequences of a breach of the determination (including provision for set-off or withholding rights, or liquidated damages):

    • (c) suspension and termination of the service:

    • (d) procedures for, or restrictions on, assignment of the service.

    (3) The Commission must identify which of the terms (if any) specified in a standard terms determination are allowed to be varied, on an application made under section 30V by a party to that determination, under a residual terms determination.

    Section 30O: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30P Additional matters to be included in standard terms determination for designated access service
  • (1) In addition to the matters set out in section 30O, a standard terms determination for a designated access service must also include,—

    • (a) if the price or prices payable for the service have been determined in accordance with the applicable final pricing principle in a determination made under section 51, either of the following:

      • (i) that price or those prices; or

      • (ii) an updated calculation of that price or those prices if the Commission considers it to be necessary because of a change in circumstances; or

    • (b) if paragraph (a) does not apply, and the price or prices payable for the service have been determined in accordance with the applicable initial pricing principle in a determination made under section 27, any of the following:

      • (i) that price or those prices; or

      • (ii) an updated calculation of that price or those prices if the Commission considers it to be necessary because of a change in circumstances; or

      • (iii) if the price or prices referred to in subparagraph (i) or (ii) are higher than the existing price charged by the relevant access provider to the majority of its access seekers for the service, that existing price; or

    • (c) if neither paragraph (a) nor paragraph (b) applies, the price or prices determined by the Commission in accordance with the applicable initial pricing principle.

    (2) A standard terms determination for a designated access service may also include any other terms concerning the price for the service that the Commission considers relevant.

    Section 30P: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30Q Standard terms determination not to include expiry date
  • A standard terms determination must not include an expiry date for the determination.

    Section 30Q: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30R Review of standard terms determination
  • (1) The Commission may, on its own initiative, commence a review, at any time, of all or any of the terms specified in a standard terms determination.

    (2) The Commission may replace a standard terms determination or vary, add, or delete any of its terms, if it considers it necessary to do so after conducting a review.

    (3) In exercising the power conferred by subsection (2), the Commission may specify how and when a replacement standard terms determination, or a variation, addition, or deletion of terms specified in the determination, takes effect in relation to—

    • (a) the initial standard terms determination:

    • (b) any relevant residual terms determination.

    (4) The Commission may conduct a review in the manner, and within the time, that it thinks fit.

    (5) The Commission must—

    • (a) consult all parties to the determination on the review; and

    • (b) give public notice of the commencement of the review; and

    • (c) include in the public notice under paragraph (b) the closing date for submissions; and

    • (d) give public notice of the result of the review.

    Section 30R: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Application of standard terms determination

  • Heading: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30S Application of standard terms determination
  • (1) If the Commission has made a standard terms determination for a designated access service or specified service,—

    • (a) an access seeker of the service may request an access provider in writing to supply the service on the terms specified in that determination; and

    • (b) the access provider must comply with the request.

    (2) However, subsection (1) does not apply if,—

    • (a) after the date on which the standard terms determination for the service was made, the access seeker and the access provider entered into an agreement for the supply of the service; and

    • (b) it is less than 18 months since the date on which that agreement came into force.

    (3) In complying with a request from an access seeker under subsection (1), the access provider must, if the Commission has made a residual terms determination for the service under section 30ZB in relation to that access seeker and that access provider, supply the service to that access seeker on the terms specified in that determination, as well as on the terms specified in the standard terms determination.

    (4) However, if there is any inconsistency between the terms specified in a residual terms determination in relation to that access seeker and that access provider and the terms specified in a standard terms determination, the terms specified in the residual terms determination prevail.

    Section 30S: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30T Effect of standard terms determination on determination made under section 27
  • (1) This section applies if—

    • (a) a determination for a designated access service or specified service is made under section 27; and

    • (b) that determination is still in force at the time a standard terms determination is made for the service.

    (2) An access seeker of the service who is a party to the determination made under section 27 may request the access provider in writing to supply the service on the terms specified in the standard terms determination.

    (3) The access provider must comply with the request.

    (4) The determination made under section 27 expires on the date on which the access provider begins to supply the service on the terms specified in the standard terms determination.

    Section 30T: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Residual terms determination

  • Heading: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30U Purpose of residual terms determination
  • (1) The purpose of a residual terms determination is to allow the Commission, on the application of a party to a standard terms determination, to adjust the terms for the supply of a designated access service or specified service that are specified in the standard terms determination.

    (2) To that end, a residual terms determination may—

    • (a) address matters that were not addressed in the standard terms determination; and

    • (b) vary any terms in the standard terms determination that the Commission has identified under section 30O(3) as being allowed to be varied.

    Section 30U: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30V Application for residual terms determination
  • (1) An access seeker of a designated access service or specified service who is a party to a standard terms determination may apply to the Commission for a residual terms determination of any terms on which the service must be supplied.

    (2) If an access seeker applies for a residual terms determination under subsection (1), the access provider of the service may also apply to the Commission for a residual terms determination of any terms on which the access provider considers the service must be supplied.

    (3) To avoid doubt, an application under this section—

    • (a) may only be made if the Commission has made a standard terms determination for the service; and

    • (b) may seek either or both of the following:

      • (i) a determination of matters that were not addressed in the standard terms determination:

      • (ii) a variation of any terms in the standard terms determination that the Commission has identified under section 30O(3) as being allowed to be varied.

    Section 30V: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30W When application may not be made
  • (1) Despite section 30V, no person may apply for a residual terms determination if—

    • (a) all of the following apply:

      • (i) the persons who would otherwise be parties to the determination have an agreement for the supply of the service; and

      • (ii) that agreement was entered into after the date on which the relevant standard terms determination was made; and

      • (iii) it is less than 18 months since the date on which that agreement came into force; or

    • (b) that person has not made reasonable attempts to negotiate the terms that are sought in the application for the residual terms determination with the person who would otherwise be a party to that determination; or

    • (c) that person has previously applied for a residual terms determination for the service and it is less than 18 months since the date on which that determination was made; or

    • (d) it is less than 18 months since the date on which the access provider began to supply the service on the terms specified in the standard terms determination in accordance with a request made by the access seeker under section 30S(1); or

    • (e) the applicable conditions in relation to the service (if any) have not been met.

    (2) However, subsection (1)(d) does not prevent an access seeker from applying for a residual terms determination at any time before the access provider begins to supply the service on the terms specified in a standard terms determination in accordance with a request made by the access seeker under section 30S(1).

    Section 30W: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30X Requirements for application
  • An application made under section 30V must—

    • (a) be in writing; and

    • (b) be given in the prescribed manner, if any; and

    • (c) contain the prescribed information, if any; and

    • (d) be accompanied by the prescribed fee, if any.

    Section 30X: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30Y Commission must notify parties
  • On receiving an application made in accordance with section 30X, the Commission must—

    • (a) notify the parties to the determination in writing that the application has been received; and

    • (b) provide a copy of the application to the other party to the determination; and

    • (c) request the parties to the determination to comment on the matter by written notice to the Commission not later than 10 working days after receipt of the notice from the Commission.

    Section 30Y: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30Z Commission must decide whether to investigate
  • (1) The Commission must make reasonable efforts to do the following things not later than 10 working days after the date by which the parties may comment on the application:

    • (a) decide whether or not to investigate the matter:

    • (b) give written notice of its decision to the parties:

    • (c) give public notice of its decision:

    • (d) request the parties to the residual terms determination to make submissions on the matter by written notice to the Commission not later than 10 working days after receipt of the notice of decision from the Commission.

    (2) Subsection (1)(d) applies only if the Commission has decided under subsection (1)(a) to investigate the matter.

    Section 30Z: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30ZA Consultation or conferences
  • If the Commission considers that persons other than the parties to the determination have a material interest in the residual terms determination, the Commission may either consult those persons or hold conferences in relation to the matter.

    Section 30ZA: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30ZB Preparation of residual terms determination
  • After investigating the matter, the Commission must—

    • (a) prepare a residual terms determination; and

    • (b) give a copy of the determination to the parties to the determination; and

    • (c) give public notice of the determination.

    Section 30ZB: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30ZC Requirements for residual terms determination
  • A residual terms determination must, in the opinion of the Commission,—

    • (a) be made in accordance with—

      • (i) the applicable access principles and any limits on those applicable access principles; and

      • (ii) any regulations made in respect of the applicable access principles and any limits on those applicable access principles; and

    • (b) comply with any relevant approved codes.

    Section 30ZC: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

30ZD Matters to be included in residual terms determination
  • A residual terms determination must include—

    • (a) the terms on which the service must be supplied; and

    • (b) the reasons for the determination; and

    • (c) the terms and conditions (if any) on which the determination is made; and

    • (d) the actions (if any) that a party to the determination must take or refrain from taking; and

    • (e) the expiry date of the determination.

    Section 30ZD: inserted, on 22 December 2006, by section 13 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Subpart 3Determinations for designated multinetwork services

Commission may initiate process for designated multinetwork service determination on own initiative

  • Heading: inserted, on 22 December 2006, by section 14 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

31AA Commission may initiate process for designated multinetwork service determination on own initiative
  • (1) The Commission may, on its own initiative, initiate the process for a determination of—

    • (a) the functions that must be performed by a system for delivering a designated multinetwork service and the standard to which those functions must be performed; and

    • (b) the formula for how the cost of delivering the service must be apportioned between the access seeker and all access providers of the service.

    (2) The Commission may decide to initiate that process only if it is satisfied that there are reasonable grounds for doing so.

    Section 31AA: inserted, on 22 December 2006, by section 14 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Application

31 Application
  • An access seeker of a designated multinetwork service may apply to the Commission for a determination of—

    • (a) the functions that must be performed by a system for delivering the service and the standard to which those functions must be performed; and

    • (b) the formula for how the cost of delivering the service must be apportioned between the access seeker and all access providers of the service.

32 When application may not be made
  • Despite section 31, no person may apply for a determination—

    • (a) of any matters that an approved code already provides for; or

    • (b) if the Commission has already made a determination in respect of the designated multinetwork service and the determination has not expired; or

    • (c) if there is an agreement between the access seeker and all access providers for the supply of the service and the agreement provides for all of the matters set out in section 31.

33 Requirements for application
  • An application under section 31 must—

    • (a) be in writing; and

    • (b) be given in the prescribed manner, if any; and

    • (c) contain the prescribed information, if any; and

    • (d) be accompanied by the prescribed fee, if any.

Notification

34 Commission must notify parties
  • On initiating the process for a designated multinetwork service determination under section 31AA or on receiving an application made in accordance with section 33, the Commission must—

    • (a) notify all the parties to the determination in writing that it has initiated that process or received the application, as the case may be; and

    • (b) for an application made in accordance with section 33, provide a copy of the application to all access providers of the service; and

    • (c) request all the parties to the determination to comment on the matter by written notice to the Commission not later than 10 working days after receipt of the notice from the Commission.

    Section 34: substituted, on 22 December 2006, by section 15 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Investigation

35 Commission must decide whether to investigate
  • The Commission must make reasonable efforts to do the following things not later than 10 working days after the date by which the parties may comment on the matter:

    • (a) decide whether or not to investigate the matter:

    • (b) give written notice of its decision to all the parties to the determination:

    • (c) give public notice of its decision.

    Section 35: amended, on 22 December 2006, by section 16 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Draft determination

36 Draft determination
  • (1) The Commission must make reasonable efforts to do the following things not later than 60 working days after it gave written notice under section 35(b)

    • (a) prepare a draft determination; and

    • (b) give a copy of the draft determination to all the parties to the determination; and

    • (c) give public notice of the draft determination; and

    • (d) include in the public notice—

      • (i) the closing date for submissions, which must not be earlier than 20, and not later than 40, working days after the date of publication of the draft determination; and

      • (ii) if a public hearing is to be held under section 38, the date of the public hearing.

    (2) If, despite making reasonable efforts, the Commission is unable to do all the things set out in subsection (1) within the time limit specified in that subsection, the Commission must give to the parties concerned written reasons for not meeting that time limit.

37 Matters to be included in draft determination
  • (1) Subject to subsection (2), the draft determination must include—

    • (a) a description of the functions that must be performed by a system for delivering the service and the standard to which those functions must be performed; and

    • (b) the formula for how the cost of delivering the service must be apportioned between the parties to the determination and every person who becomes an access provider after the determination is made; and

    • (c) the reasons for the determination; and

    • (d) the terms and conditions on which the determination is proposed to be made; and

    • (e) the actions (if any) that a party to the determination must do or refrain from doing; and

    • (f) the proposed expiry date of the determination.

    (2) Subsection (1)(a) applies only to the extent that the matters referred to in that paragraph have not already been provided for in an approved code.

38 Consultation, conferences, or public hearing
  • The Commission may consult with interested parties, hold conferences, or, if it is satisfied that it is in the public interest to do so, hold a public hearing, in relation to a draft designated multinetwork service determination.

Determination

39 Determination
  • As soon as practicable after completing any consultation, conferences, or any public hearing under section 38, or if there is no consultation, conferences, or public hearing, after the closing date for submissions under section 36(1)(d)(i), the Commission must,—

    • (a) prepare a determination; and

    • (b) give a copy of the determination to all the parties to the determination; and

    • (c) give public notice of the determination.

40 Matters to be included in determination
  • (1) Subject to subsection (2), a designated multinetwork service determination must include—

    • (a) the functions that must be performed by a system for delivering the service and the standard to which those functions must be performed; and

    • (b) the formula for how the cost of delivering the service must be apportioned between the parties to the determination and every person who becomes an access provider after the determination is made; and

    • (c) the requirement that all the parties to the determination provide the service by means of a system that is consistent with the functions and the standards set out in the determination; and

    • (d) the requirement that any party to the determination make payments to an access provider of amounts calculated in accordance with the formula set out in the determination; and

    • (e) the reasons for the determination; and

    • (f) the terms and conditions (if any) on which the determination is made; and

    • (g) the actions (if any) that a party to the determination must do or refrain from doing; and

    • (h) the expiry date of the determination.

    (2) Subsection (1)(a) applies only to the extent that the matters referred to in that paragraph have not already been provided for in an approved code.

41 Determinations not invalid for certain failures
  • (1) If the Commission omits to do any of the things listed in subsection (2), that omission does not in any way affect the validity of the determination to which the omission relates.

    (2) The things referred to in subsection (1) are as follows:

    • (b) to provide a copy of an application for a determination to an access provider under section 34(b):

    • (c) to give a copy of the draft determination to a party to the determination under section 36(1)(b):

    • (d) to give a copy of the determination to a party under section 39(b).

Subpart 4Pricing review determinations for designated access services

Application

42 Application
  • (1) If a determination is made under section 27 or section 30M regarding the price payable for a designated access service, a party to the determination may apply for a review of that part of the determination that relates to the price to be paid for the service.

    (1A) However, subsection (1) does not apply in relation to a determination made under section 30M if the price to be paid for the service was included in that determination under section 30P(1)(a).

    (2) A determination made under section 27 or section 30M continues to have effect and is enforceable pending the making of a pricing review determination.

    (3) A party to a determination made under section 27 or section 30M that relates to the price payable for a designated access service may apply for a review of any discount specified in the applicable initial pricing principle for the service.

    (4) Subsections (2) and (3) are for the avoidance of doubt.

    Section 42(1): amended, on 22 December 2006, by section 17(1) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 42(1A): inserted, on 22 December 2006, by section 17(2) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 42(2): amended, on 22 December 2006, by section 17(1) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 42(3): amended, on 22 December 2006, by section 17(1) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

43 Requirements for application
  • An application under section 42 must—

    • (a) be in writing; and

    • (b) be given to the Commission not later than 25 working days after,—

      • (i) for a determination made under section 27, the date on which the person received the copy of the determination; and

      • (ii) for a standard terms determination made under section 30M, the date on which public notice of that determination is given under section 30M(c):

    • (c) be given in the prescribed manner, if any; and

    • (d) contain the prescribed information, if any; and

    • (e) be accompanied by the prescribed fee, if any.

    Section 43(b): substituted, on 22 December 2006, by section 18 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Notification

44 Commission's requirements on receiving application
  • On receiving an application made in accordance with section 43, the Commission must—

    • (a) notify the parties to the determination in writing that the application has been received; and

    • (b) provide a copy of the application to the other party or parties to the determination (as the case requires); and

    • (c) request the parties to the determination to comment on the matter by written notice to the Commission not later than 10 working days after receipt of the notice from the Commission; and

    • (d) give public notice of the application.

    Section 44(b): amended, on 22 December 2006, by section 19 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Calculation of price

45 Access provider to calculate price on request
  • (1) On receiving an application made in accordance with section 43, the Commission may, by notice in writing, require an access provider to calculate the price payable for the designated access service.

    (2) If an access provider is requested, under subsection (1), to calculate the price payable for the designated access service, an access provider must, not later than the time specified by the Commission,—

    • (a) calculate that price in accordance with—

      • (i) the applicable final pricing principle (as affected, if at all, by clause 2 or clause 3 of Schedule 1); and

      • (ii) any regulations that relate to the applicable final pricing principle or, if there are no regulations, any requirements of the Commission:

    • (b) provide to the Commission—

      • (i) a statement that sets out how the price was calculated; and

      • (ii) all information on which the calculation of the price was based.

    (3) Subsection (2) is subject to the requirement (if any) set out in subpart 1 of Part 2 of Schedule 1 in respect of the applicable final pricing principle.

    Section 45(1): amended, on 22 December 2006, by section 20(1) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 45(2): amended, on 22 December 2006, by section 20(2) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 45(2)(a)(ii): substituted, on 22 December 2006, by section 20(3) of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

46 Offences
  • [Repealed]

    Section 46: repealed, on 22 December 2006, by section 21 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Draft determination

47 Draft pricing review determination
  • As soon as practicable after the completion of any requirements under section 45 or, if the Commission does not make a request under that section or under subpart 1 of Part 2 of Schedule 1, after receiving an application under section 42, the Commission must—

    • (a) prepare a draft pricing review determination; and

    • (b) give a copy of the draft pricing review determination to the parties to the determination; and

    • (c) give public notice of the draft pricing review determination; and

    • (d) include in the public notice the closing date for submissions, which must not be later than 30 working days after the date of publication of the draft determination.

48 Requirements for draft determination
  • In preparing the draft pricing review determination, the Commission—

    • (a) must consider any calculation made under section 45; and

    • (b) may consider any matters included in a determination made under section 27 that relate to the price payable for the designated access service, and may make a determination in respect of those matters.

49 Matters to be included in draft determination
  • The draft pricing review determination must include—

    • (a) the price payable for the designated access service, which, in the opinion of the Commission, is determined in accordance with—

      • (i) the applicable final pricing principle (as affected, if at all, by clause 2 or clause 3 of Schedule 1); and

      • (ii) any regulations that relate to the applicable final pricing principle or, if there are no regulations, any requirements of the Commission; and

    • (b) if the Commission has considered any matters that relate to the price payable for the designated access service under section 48(b), the Commission's determination (if any) of those matters; and

    • (c) the reasons for the determination; and

    • (d) the terms and conditions on which the determination is proposed to be made; and

    • (e) the actions (if any) that a party to the determination must do or refrain from doing; and

    • (f) the proposed expiry date of the determination.

    Section 49(a)(ii): substituted, on 22 December 2006, by section 22 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Consultation

50 Consultation or conferences
  • If the Commission considers that persons, other than the parties to the determination, have a material interest in the matter to be determined, the Commission must, before preparing a determination under section 51, either consult those persons or hold conferences in relation to the matter.

Determination

51 Pricing review determination
  • (1) As soon as practicable after completing any consultation or conferences under section 50, the Commission must—

    • (a) prepare the pricing review determination; and

    • (b) give a copy of the determination to the parties to the determination; and

    • (c) give public notice of the determination.

    (2) To avoid doubt, a determination made under section 27 continues to have effect and is enforceable to the extent that it has not been altered by a pricing review determination.

52 Matters to be included in determination
  • A pricing review determination must include—

    • (a) the price payable for the designated access service, which, in the opinion of the Commission, is determined in accordance with—

      • (i) the applicable final pricing principle (as affected, if at all, by clause 2 or clause 3 of Schedule 1); and

      • (ii) any regulations that relate to the applicable final pricing principle or, if there are no regulations, any requirements of the Commission; and

    • (b) if the Commission has considered any matters that relate to the price payable for the designated access service under section 48(b) and has made a determination in respect of those matters, that determination; and

    • (c) the reasons for the pricing review determination and the determination referred to in paragraph (b) (if any); and

    • (d) the terms and conditions (if any) on which the pricing review determination and the determination referred to in paragraph (b) (if any) is made; and

    • (e) the actions (if any) that a party to the determination must do or refrain from doing; and

    • (f) the expiry date of the determination.

    Section 52(a)(ii): substituted, on 22 December 2006, by section 23 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Subpart 5Supplementary provisions for all determinations

53 Procedure for determinations
  • For a determination made under this Part, the Commission—

    • (a) is not bound by technicalities, legal forms, or rules of evidence:

    • (b) may inform itself of any matter relevant to the determination in any way it thinks appropriate:

    • (c) must consider all submissions made in relation to the determination and all information and opinions presented or expressed at any conference or public hearing in relation to the determination.

54 Applicant may withdraw
  • (1) An applicant in respect of a determination (except a standard terms determination or a designated multinetwork determination) may, at any time, withdraw the application by written notice to the Commission.

    (2) If the Commission receives a notice of withdrawal under subsection (1), then it must—

    • (a) notify all the parties to the determination of the withdrawal; and

    • (b) cease preparation of the determination concerned; and

    Section 54(1): amended, on 22 December 2006, by section 24 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

55 Commission's costs
  • (1) The costs of the Commission in relation to a determination or application for a determination (including the costs of any expert advice) must be met by the parties to the determination in the proportions directed by the Commission in writing.

    (2) The Commission's costs in relation to a standard terms determination, or a pricing review determination in relation to a standard terms determination, may be met—

    • (a) in the manner provided under subsection (1); or

    • (c) by a combination of the ways referred to in paragraphs (a) and (b).

    Section 55(2): added, on 22 December 2006, by section 25 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

56 Parties' costs
  • (1) Subject to subsection (2), each party bears his or her own costs in relation to a determination or application for a determination.

    (2) The Commission may, by written direction to a party to a determination, require that person to meet some or all of the other party's costs in respect of a determination or application for a determination if, in the opinion of the Commission, the party has materially contributed to any costs or unreasonable delay.

    (3) The direction must specify the amount payable by each person.

57 Enforcing directions given under section 55 or section 56(2)
  • (1) The Commission may enforce a direction given under section 55 by filing it in the prescribed form in the Wellington Registry of the High Court.

    (2) A party to a determination in respect of which a direction has been given under section 56(2) may enforce that direction by filing it in the Wellington Registry of the High Court.

    (3) A direction that is filed in the High Court under this section is enforceable as a judgment of the High Court in its civil jurisdiction.

58 Clarification of determination
  • (1) The Commission may amend a determination for the purpose of making a clarification if—

    • (a) at any time the Commission, on its own initiative or on the application of any person, considers that a determination requires clarification; and

    • (b) [Repealed]

    • (c) no appeal is pending in respect of the determination.

    (2) The Commission must give public notice of an amendment to a determination made under subsection (1).

    Section 58(1)(b): repealed, on 22 December 2006, by section 26 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

59 Reconsideration of determination
  • (1) Subject to subsection (2), the Commission may at any time, on the application of a party to a determination, revoke or amend the determination or revoke the determination and make a further determination in substitution for it if the Commission considers that—

    • (a) there has been a material change of circumstances since the date on which a determination was made or last reconsidered; or

    • (b) [Repealed]

    • (c) the determination was made on the basis of information that was false or misleading in a material particular.

    (2) A determination may not be reconsidered if an appeal is pending in respect of the determination.

    (3) In reconsidering a determination, the Commission must follow the same process that was followed for the initial determination.

    (4) To avoid doubt, a determination continues to have effect and is enforceable pending its reconsideration under this section.

    (5) The Commission must give public notice of a revoked or amended determination or a revoked and substituted determination.

    Section 59(1)(b): repealed, on 22 December 2006, by section 27 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

60 Appeals from certain determinations under Part 2
  • (1) Subject to subsection (2), a party to a determination made under this Part may appeal to the High Court against—

    • (b) the determination (including an amendment to a determination made under section 58 or a determination that has been reconsidered under section 59) on a question of law:

    • (c) a decision of the Commission not to clarify a determination under section 58 on a question of law:

    • (d) a decision of the Commission not to reconsider a determination under section 59 on a question of law.

    (2) No party may appeal against a determination made under this Part—

    • (a) while a clarification of the determination under section 58 is pending; or

    • (b) while a reconsideration of the determination under section 59 is pending.

    (3) If appeal or judicial review proceedings are commenced in respect of a determination, then, until the proceedings are finally disposed of, the determination continues to have effect and is enforceable as if the proceedings had not been commenced.

    (4) The decision of the High Court on appeal from a determination is final unless leave to appeal to the Court of Appeal is given by the High Court or, if leave is refused by the High Court, by the Court of Appeal.

    (5) [Repealed]

    Section 60(5): repealed, on 1 January 2004, by section 48(2) of the Supreme Court Act 2003 (2003 No 53).

61 Enforcing determinations of Commission
  • [Repealed]

    Section 61: repealed, on 22 December 2006, by section 28 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

62 Expiry of determinations
  • Every determination expires on the earlier of—

    • (a) the expiry date stated in the determination (if any); or

    • (b) the date on which the designated service or specified service to which the determination applies ceases to have that status because it has been omitted from Schedule 1 under section 66(b).

    Section 62: substituted, on 22 December 2006, by section 29 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

63 Application of Commerce Act 1986
  • Part 2 of the Commerce Act 1986 does not apply in respect of a determination made under this Part or any matter necessary for giving effect to a determination made under this Part.

Subpart 6Matters relating to regulation-making powers for designated services and specified services

64 Mandatory review of local loop unbundling and access to, and interconnection with, Telecom's fixed PDN
  • [Repealed]

    Section 64: repealed, on 22 December 2006, by section 30 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

65 Expiry of designated services and specified services
  • [Repealed]

    Section 65: repealed, on 22 December 2006, by section 30 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

66 Alterations to Part 2 or Part 3 of Schedule 1
  • The Governor-General may, by Order in Council made on the recommendation of the Minister, amend Part 2, or Part 3, of Schedule 1 by—

    • (a) adding a telecommunications service to the Part and setting out in relation to that service—

      • (i) a description of the service; and

      • (ii) any applicable conditions; and

      • (iii) a description of the access providers and access seekers; and

      • (iv) in the case of a service being added to subpart 1 of Part 2, or Part 3, of Schedule 1, a description of—

        • (A) the applicable access principles; and

        • (B) the limits (if any) on the applicable access principles; and

      • (v) in the case of a service being added to subpart 1 of Part 2 of Schedule 1,—

        • (A) the applicable initial pricing principle; and

        • (B) the applicable final pricing principle; and

        • (C) any requirement referred to in section 45 for the applicable final pricing principle; and

        • (D) any additional matters that must be considered regarding the application of section 18:

    • (b) omitting a telecommunications service from the Part:

    • (c) in respect of a service, amending—

      • (i) the description of the service:

      • (ii) any applicable conditions:

      • (iii) the description of access seekers:

      • (iv) the description of access providers:

      • (v) the description of the applicable access principles:

      • (vi) the description of the limits (if any) on the applicable access principles:

      • (vii) the applicable initial pricing principle and the applicable final pricing principle:

      • (viii) any requirement referred to in section 45 for the applicable final pricing principle:

      • (ix) any additional matters that must be considered regarding the application of section 18.

67 Alterations to clauses 1 to 6 of Schedule 1
  • The Governor-General may, by Order in Council made on the recommendation of the Minister, amend any of clauses 1 to 6 of Schedule 1.

68 Minister's recommendation subject to procedure in Schedule 3
  • (1) The Minister must not make a recommendation under section 66 or 67 unless the Minister accepts the Commission's recommendation that the proposed alteration be made.

    (2) The Commission's recommendation must be made in accordance with the procedure set out in—

    • (a) Part 2 of Schedule 3 for a telecommunications service that is omitted from Part 3 of Schedule 1 and is added to Part 2 of that schedule; or

    • (b) Part 1 of Schedule 3 in any other case.

    (3) This section does not prevent the Minister from making a recommendation under section 66 or 67 to amend the detail of a proposed alteration so long as the recommendation—

    • (a) implements the effect of the Commission's recommendation on the proposed alteration; and

    • (b) does not differ from that recommendation in any material way (for example, other than in matters of drafting style or minor detail).

    Section 68: substituted, on 22 December 2006, by section 31 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

68A Application of Schedule 3A
69 Regulations
  • (1) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:

    • (a) providing for the application of applicable access principles under section 29(a):

    • (b) providing for the application of the applicable initial pricing principle under section 29(c):

    • (c) prescribing a method or methods for the calculation of the price payable under section 45(2), which must be consistent with the applicable final pricing principle:

    • (d) providing for the determination of the price payable under section 49(a), which must be consistent with the applicable final pricing principle:

    • (e) providing for the determination of the price payable under section 52(a), which must be consistent with the applicable final pricing principle:

    • (f) providing requirements relating to the information that must be provided to the Commission in relation to all or any of the matters referred to in paragraphs (a) to (e):

    • (g) providing for any other matters contemplated by this Part, necessary for its administration, or necessary for giving it full effect.

    (2) The Minister must not make a recommendation under subsection (1) unless the Commission has recommended the making of the regulations.

Part 2A
Structural separation of Telecom

  • Part 2A: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 1Preliminary provisions

  • Subpart 1 heading: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69A Purpose of Part
  • The purpose of this Part is to provide for matters relating to the structural separation of Telecom to facilitate—

    • (a) the promotion of competition in telecommunications markets for the long-term benefit of end-users of telecommunications services in New Zealand; and

    • (b) efficient investment in telecommunications infrastructure and services.

    Section 69A: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69B Interpretation
  • In this Part, unless the context otherwise requires,—

    asset––

    • (a) means property of any kind, whether or not situated in New Zealand, whether tangible or intangible, real or personal, corporeal or incorporeal, and whether or not subject to rights; and

    • (b) includes––

      • (i) estates or interests in any land, including rights of occupation of land or buildings:

      • (ii) buildings, vehicles, plant, equipment, machinery, fixtures and fittings, and rights in them:

      • (iii) choses in action and money:

      • (iv) rights of any kind, and applications, objections, submissions, and appeals in respect of those rights:

      • (v) intellectual property and applications pending for intellectual property:

      • (vi) goodwill, and any business undertaking

    Chorus

    • (a) means ChorusCo; and

    • (b) includes any of its subsidiaries

    ChorusCo means the company that is to be demerged from Telecom on separation day in accordance with the demerger arrangement

    demerger arrangement means an arrangement approved by the court pursuant to Part 15 of the Companies Act 1993 on the application of Telecom involving the distribution of 100% of the ordinary shares held by Telecom Corporation of New Zealand Limited in ChorusCo to the holders (including a nominee for holders) of ordinary shares in Telecom Corporation of New Zealand Limited

    liabilities means liabilities, debts, charges, duties, and obligations of every description, whether present or future, actual or contingent, and whether payable or to be observed or performed in New Zealand or elsewhere

    related party has the meaning set out in section 69U

    rights includes all rights, powers, privileges, interests, leases, licences, approvals, consents, designations, permissions, dispensations, authorisations, benefits, defences, immunities, claims, and equities of any kind, whether arising from, accruing under, created or evidenced by, or the subject of, an instrument or otherwise, and whether liquidated or unliquidated, actual, contingent, or prospective

    separation day means the day on which Telecom Corporation of New Zealand Limited distributes 100% of the ordinary shares it holds in ChorusCo in accordance with the demerger arrangement.

    Section 69B: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 2Monitoring of shared assets, services, and systems

  • Subpart 2 heading: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69C Interpretation
  • In this subpart, unless the context otherwise requires,—

    arm's-length has the meaning set out in section 69D

    executed, in relation to a sharing arrangement or a material amendment to a sharing arrangement, means signed under the name of the relevant company by a person acting under the company's authority

    sharing arrangement

    • (a) means an arrangement, agreement, contract, or understanding between Telecom and Chorus for the purpose of providing either or both with access to, or continued use of, a system, asset, or service that is owned or controlled by Telecom at the close of the day before separation day; and

    • (b) includes an arrangement, agreement, contract, or understanding of the kind described in paragraph (a) that is conducted with or through a third party; but

    • (c) does not include any of the following, or anything that is wholly in accordance with the following:

      • (i) the regulated terms of supply of a designated service or a specified service; or

      • (ii) a registered undertaking; or

      • (iii) an undertaking under Part 4AA; or

      • (iv) a deemed TSO instrument; or

      • (v) an undertaking approved in accordance with subpart 4 of this Part (undertakings by Chorus); or

      • (vi) an arrangement that is exempted under section 69N; or

      • (vii) an arrangement that relates to ensuring compliance by Telecom, Chorus, or both with—

        • (B) duties or requirements imposed by any other Act, interception warrant, or other lawful authority that relate to the interception of communications.

    Section 69C: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 69C sharing arrangement paragraph (c)(vii)(A): amended, on 11 May 2014, by section 123 of the Telecommunications (Interception Capability and Security) Act 2013 (2013 No 91).

69D Meaning of arm's-length
  • Without limiting the ordinary meaning of the expression, arm's-length includes having relationships, dealings, and transactions that—

    • (a) do not include elements that parties in their respective positions would usually omit; and

    • (b) do not omit elements that parties in their respective positions would usually include,—

    if the parties were—

    • (c) connected or related only by the transaction or dealing in question; and

    • (d) acting independently; and

    • (e) each acting in its own best interests.

    Section 69D: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69E Requirements for sharing arrangements
  • (1) Every sharing arrangement must—

    • (a) be recorded in writing and be executed by Telecom and Chorus; and

    • (b) be on arm's-length terms between Telecom and Chorus; and

    • (c) be unlikely to harm competition in any telecommunications market; and

    • (d) ensure the protection of confidential commercial information or customer confidential information.

    (2) Telecom and Chorus must not enter into a sharing arrangement unless the arrangement meets the requirements in subsection (1).

    Section 69E: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 69E(1)(d): amended, on 5 December 2013, by section 4 of the Telecommunications Amendment Act 2013 (2013 No 136).

69F Commission must be notified of proposed and final sharing arrangements
  • (1) Telecom and Chorus must,—

    • (a) not later than 10 working days after separation day, provide a copy of all sharing arrangements executed before separation day to the Commission; and

    • (b) if a sharing arrangement is entered into after separation day,—

      • (i) not later than 10 working days before the sharing arrangement is executed, notify the Commission of their intention to enter into the sharing arrangement and provide a copy of the proposed arrangement to the Commission; and

      • (ii) not later than 10 working days after the final sharing arrangement is executed, provide a copy of the arrangement to the Commission.

    (2) Subsection (1) applies to any material amendment to a sharing arrangement as if that amendment were a sharing arrangement.

    (3) See sections 156L(3) and 156M for the maximum penalty of $1 million (and $50,000 per day) for breach of this section.

    Section 69F: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69G Obligation to collect and retain information for monitoring purposes
  • Telecom and Chorus must each collect and retain information relating to the operation and performance of a sharing arrangement for the purpose of enabling the Commission to monitor compliance with this subpart.

    Section 69G: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69H Commission's monitoring, investigation, and enforcement powers
  • (1) The Commission may, by notice in writing, require Telecom and Chorus to prepare and disclose information consisting of, or about, the following:

    • (a) the terms, execution, or performance of a sharing arrangement:

    • (b) any report, agreement, or other information relating to the sharing arrangement that the Commission considers necessary for the purpose of monitoring compliance with this subpart.

    (2) Telecom and Chorus must prepare and disclose the information required within the period specified in the notice.

    (3) A notice under this section may require either or both of the following:

    • (a) that all or any of the information be audited by a qualified auditor and that the auditor provide a report directly to the Commission on the matters that the Commission specifies as those that must be addressed in that report:

    • (b) that all or any of the information be verified by statutory declaration in the form and by the persons required by the Commission.

    (4) To avoid doubt, nothing in this section limits the application of section 98 of the Commerce Act 1986.

    (5) The Commission may, for the purpose of monitoring, investigation, and enforcement under this subpart, consult with any persons that the Commission considers may be affected by a sharing arrangement.

    (6) See sections 156L(3) and 156M for the maximum penalty of $1 million (and $50,000 per day) for breach of this section.

    Section 69H: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69I Commission may give non-compliance notice
  • (1) This section applies if the Commission considers that Telecom and Chorus are parties to a sharing arrangement that contravenes section 69E (a non-compliance).

    (2) The Commission may give written notice to each party (a non-compliance notice) setting out—

    • (a) the nature of the non-compliance; and

    • (b) the 10-day time limit for responses in section 69J; and

    • (c) the 40-day time limit for rectification and enforcement (see section 69K).

    Section 69I: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69J Process for responding to non-compliance notice
  • (1) Each party may, not later than 10 working days after the date of the non-compliance notice or any further time as the Commission may allow, respond in writing to the notice either—

    • (a) by disputing the notice; or

    • (b) by setting out the reasons for the non-compliance.

    (2) The Commission must consider each party's response (if any) before deciding what action to take under subsection (3).

    (3) The Commission must, not later than 10 working days after the final date for the parties to respond to the non-compliance notice under subsection (1),—

    • (a) retract the non-compliance notice; or

    • (b) give a revised non-compliance notice; or

    • (c) confirm the non-compliance notice.

    (4) If the Commission gives a revised non-compliance notice, or confirms the non-compliance notice, the Commission must—

    • (a) set out the nature of the non-compliance; and

    • (b) require the parties to rectify the non-compliance.

    Section 69J: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69K Commission may decide on appropriate enforcement action if non-compliance persists
  • (1) This section applies if the Commission considers that a non-compliance has not been rectified within 40 working days after the date of a non-compliance notice given under section 69I.

    (2) The Commission may, at any time, do all or any of the following:

    • (a) direct Telecom and Chorus to amend the sharing arrangement in order to rectify the non-compliance within 10 working days of the direction (an amendment direction):

    • (b) apply for an injunction under section 69M in respect of the non-compliance or a failure to comply with an amendment direction:

    • (c) seek a pecuniary penalty under Part 4A in respect of the non-compliance or a failure to comply with an amendment direction.

    (3) The Commission must give written notice of each decision to each party affected by the decision.

    Section 69K: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69L Application of pecuniary penalty provisions
  • (1) Sections 156L and 156M apply to a party to a sharing arrangement who, without reasonable excuse, fails to rectify a non-compliance, or fails to comply with an amendment direction, in respect of which the Commission decides to take enforcement action under section 69K(2)(c).

    (2) See sections 156L(3) and 156M for the maximum penalty of $10 million (and $500,000 per day) for breach of this section.

    Section 69L: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69M Injunction may be granted by High Court
  • (1) If the High Court is satisfied that a non-compliance has not been rectified within 40 working days after the date of a non-compliance notice under section 69I, the court may, on the application of the Commission, grant an injunction restraining Telecom and Chorus from further performing the sharing arrangement or engaging in any conduct for the purpose of giving effect to that arrangement.

    (2) If the High Court is satisfied that there has been a failure to comply with a direction of the Commission given under section 69K(2)(a), the court may, on the application of the Commission, grant an injunction requiring Telecom and Chorus to comply with the direction of the Commission.

    (3) In any proceeding under this section, the Commission, on the order of the court, may obtain discovery and administer interrogatories.

    (4) The court may at any time rescind or vary an order made under this section.

    Section 69M: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69N Minister may grant exemption from application of subpart
  • (1) The Minister may, by notice in the Gazette, exempt a sharing arrangement or class of sharing arrangements from the application of this subpart, if the Minister is satisfied that—

    • (a) any potential harm to competition in telecommunications markets would be likely to be trivial or inconsequential; and

    • (b) commercial information or customer confidential information would not be disclosed.

    (2) The Minister must consult the Commission before granting an exemption under this section.

    (3) The exemption takes effect from the date specified in the exemption (which may not be earlier than the date of the Gazette notice).

    (4) The Minister may grant the exemption on any terms and conditions that the Minister thinks fit.

    (5) The Minister may, in like manner, vary or revoke such an exemption.

    (6) An exemption under this section is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

    (7) Telecom and Chorus must ensure that all exemptions granted under this section are available at all reasonable times, free of charge, on the Internet sites maintained by or on behalf of Telecom and Chorus.

    Section 69N: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 69N(6): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

Subpart 3Line of business restrictions

  • Subpart 3 heading: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69O No participation in supply of retail services
  • (1) Chorus, or any related party of Chorus, must not participate in the supply of a telecommunications service to a person (A) if 25% or more of the services supplied, or to be supplied, by Chorus to A in any year are or will be supplied—

    • (a) for A’s own use or consumption; or

    • (b) for the use or consumption of persons who are related parties of A.

    (2) See sections 156L(3) and 156M for the maximum penalty of $10 million (and $500,000 per day) for breach of this section.

    Section 69O: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69P Register of non-retail users
  • (1) The Commission must maintain a register of users for the purposes of section 69O.

    (2) If the name of the user appears on the register maintained by the Commission under this section, it is conclusive evidence of the fact that Chorus does not breach section 69O by supplying to that person.

    (3) Chorus or any user of telecommunications services may make a written application to the Commission (in a form required by the Commission, if any) for a name of a user to be entered on the register.

    (4) The Commission must give public notice of the application as soon as practicable after receiving it.

    (5) The Commission must, within 15 working days of public notice of the application, enter the name of the user on the register if the Commission is satisfied that Chorus would not breach section 69O by supplying to that person.

    (6) At separation day, the register must include all of Chorus's existing unbundled copper local loop customers and unbundled bitstream access customers as at separation day, as notified to the Commission by Chorus before separation day.

    (7) The Commission must, at all reasonable times, make the register available for inspection on the Commission's Internet site in an electronic form that is publicly accessible.

    Section 69P: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 69P(5): amended, on 5 December 2013, by section 5 of the Telecommunications Amendment Act 2013 (2013 No 136).

69Q Variations to, and removals from, register
  • (1) The Commission may, at any time,—

    • (a) review and correct the register maintained under section 69P; and

    • (b) remove the names of users from the register if—

      • (i) the Commission ceases to be satisfied of the matters in section 69P(5); or

      • (ii) the Commission is satisfied that the user is insolvent or has ceased business.

    (2) However, the Commission must give Chorus and the user—

    • (a) notice of its intention to remove the user from the register, and a reasonable opportunity to comment before removing a name from the register; and

    • (b) notice that the name has been removed, as soon as practicable after removal.

    (3) Chorus is not in breach of section 69O to the extent that it continues to supply a service to a user within the 6-month period following the removal of the user's name from the register.

    Section 69Q: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69R No services above layer 2
  • (1) Every undertaking entered into by Chorus in favour of the Crown under subpart 4 of this Part or Part 4AA must include a prohibition on participation by Chorus, or any related party of Chorus, in services above layer 2 services.

    (2) In this section, unless the context otherwise requires, layer 2 services has the same meaning as in the document New Zealand Government Ultra-Fast Broadband Initiative Invitation to Participate in Partner Selection Process dated October 2009 (as amended).

    (3) This Act applies to an undertaking required under this section as if the undertaking were required under subpart 4 of this Part or Part 4AA, as the case may be.

    Section 69R: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69S No end-to-end services
  • (1) Chorus, or any related party of Chorus, must not provide telecommunications links to customers except—

    • (a) between an end-user’s building (or, in the case of a commercial building, the 2 building distribution frames) and a Chorus local or regional aggregation point; and

    • (b) between 2 Chorus local or regional aggregation points.

    (2) To avoid doubt,—

    • (a) telecommunications links provided by Chorus, or a related party of Chorus, to customers must terminate at a local or regional aggregation point; and

    • (b) Chorus, or a related party of Chorus, must not sell a service to customers that links 2 or more end-user sites together (but a customer of Chorus can create the linking between 2 or more end-user sites).

    (3) However, this section does not prevent the resale of PSTN-based services for the purposes of acting as a channel to market for Telecom.

    (4) See sections 156L(3) and 156M for the maximum penalty of $10 million (and $500,000 per day) for breach of this section.

    Section 69S: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69T Enforcement of breaches of sections 69O and 69S
  • Sections 69V (injunctions) and 156B (enforcement actions) apply to Chorus, and any related party of Chorus, that, without reasonable excuse, participates in the supply of a telecommunications service in breach of sections 69O and 69S.

    Section 69T: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69U Application of line of business restrictions to related parties of Chorus
  • (1) The test for related parties in this Part is that a person is related to another person if—

    • (a) they are acting jointly or in concert; or

    • (b) either person acts, or is accustomed to act, in accordance with the wishes of the other person; or

    • (c) they are related companies within the meaning of section 2(3) of the Companies Act 1993; or

    • (d) either person is able, directly or indirectly, to exert a substantial degree of influence over the activities of the other; or

    • (e) they are both, directly or indirectly, under the control of the same person.

    (2) However, for the purposes of subsection (1),—

    • (a) a director of a company or other body corporate is not related to that company or body corporate merely because he or she is a director of that company or body corporate; and

    • (b) a person is not able to exert a substantial degree of influence over another person merely because—

      • (i) those persons are in competition in the same market; or

      • (ii) one of them supplies goods or services to the other.

    (3) Any sharing of assets, services, and systems between Chorus and Telecom must be disregarded for the purposes of applying subsection (1) to the extent that it is provided for in a sharing arrangement of which a copy has been provided to the Commission under section 69F(1)(a) or (b)(ii).

    (4) Without limiting section 69O, Chorus is deemed to participate in the supply of a telecommunications service if a related party of Chorus participates in the supply of the telecommunications service.

    (5) The order of responsibility for remedying breaches is, to the extent practical, that the breach must be remedied first by the party whose activity resulted in the breach.

    Compare: 1993 No 106, s 4A(2), 1998 No 88 s 21

    Section 69U: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69V Injunctions may be granted by High Court for certain contraventions
  • (1) The High Court may, on the application of the Commission, grant an injunction restraining a person from engaging in a breach of sections 69O or 69S.

    (2) The High Court may, at any time, rescind or vary an injunction granted under this section.

    Section 69V: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 4Undertakings by Chorus

  • Subpart 4 heading: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69W Purposes of subpart
  • The purposes of this subpart are to—

    • (a) promote competition in telecommunications markets for the long-term benefit of end-users of telecommunications services in New Zealand; and

    • (b) require transparency, non-discrimination, and equivalence of supply in relation to certain telecommunications services; and

    • (c) facilitate efficient investment in telecommunications infrastructure and services.

    Section 69W: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69X Overview
  • (1) This subpart imposes obligations on Chorus to give undertakings—

    • (a) to supply wholesale services using its copper access network (called relevant services in this subpart) on a non-discrimination basis; and

    • (b) to supply a subset of those services, which Chorus consumes and which it supplies to its competitors, (called relevant regulated services in this subpart) on an equivalence basis.

    (2) This section is intended only as a guide to the general scheme and effect of this subpart.

    Section 69X: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XA Interpretation
  • In this subpart, unless the context otherwise requires,—

    equivalence, in relation to the supply of a relevant regulated service, means equivalence of supply of the service and access to Chorus’s network so that third-party access seekers are treated in the same way to Chorus’s own business operations, including in relation to pricing, procedures, operational support, and supply of information and other relevant matters

    legacy access network means the network comprising—

    • (a) Chorus's local loop network, as defined in clause 1 of Part 1 of Schedule 1 (including any relevant line in Chorus's local telephone exchange or distribution cabinet); and

    • (b) Chorus's local telephone exchange, as defined in clause 1 of Part 1 of Schedule 1, and Chorus's distribution cabinet (or equivalent facility); and

    • (c) Chorus's backhaul network (whether copper, fibre, or anything else) between the local loop network handover point in Chorus's distribution cabinet (or equivalent facility) or Chorus's local telephone exchange and the first data switch (including the first data switch); and

    • (d) Chorus's digital subscriber line access multiplexer (or equivalent facility)

    local access and calling service means the designated access service described in subpart 1 of Part 2 of Schedule 1 as local access and calling service offered by means of a fixed telecommunications network

    non-discrimination, in relation to the supply of a relevant service, means that Chorus must not treat access seekers differently or, where Chorus supplies itself with a relevant service, must not treat itself differently from other access seekers, except to the extent that a particular difference in treatment is objectively justifiable and does not harm, and is unlikely to harm, competition in any telecommunications market

    relevant regulated services means the following designated access services:

    • (a) Chorus's unbundled copper local loop network service:

    • (b) Chorus's unbundled copper local loop network co-location service:

    • (c) Chorus's unbundled copper local loop network backhaul (distribution cabinet to telephone exchange):

    • (d) Chorus's unbundled copper local loop network backhaul (telephone exchange to interconnect point)

    relevant services

    • (a) means—

      • (i) wholesale telecommunications services that are provided using, or that provide access to the unbundled elements of, the legacy access network; and

      • (ii) the designated access service described in subpart 1 of Part 2 of Schedule 1 as Chorus's unbundled bitstream access backhaul; but

    • (b) does not include any services that are agreed by the Commission in writing to be legacy input services, being inputs to services that are no longer offered to end-users other than customers who were end-users before separation day

    UBA service means the designated access service described in subpart 1 of Part 2 of Schedule 1 as unbundled bitstream access service.

    Section 69XA: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XB Requirements for undertakings by Chorus relating to supply of certain wholesale telecommunications services
  • Chorus must give undertakings that—

    • (a) require Chorus to achieve non-discrimination in relation to the supply of relevant services; and

    • (b) set out rules and principles that Chorus will apply to ensure that non-discrimination is achieved in relation to the supply of relevant services; and

    • (c) require Chorus to achieve equivalence of supply in relation to relevant regulated services; and

    • (d) require Chorus to develop, in consultation with the Commission and key industry stakeholders, key performance indicators for systems and processes for relevant regulated services by which it may be judged whether Chorus is achieving equivalence of supply in relation to those services; and

    • (e) require Chorus to develop, in consultation with the Commission and key industry stakeholders, key performance indicators by which it may be judged whether Chorus is achieving non-discrimination in relation to the supply of the UBA service; and

    • (f) require Chorus to—

      • (i) conduct quarterly reviews of performance as measured against the key performance indicators referred to in paragraphs (d) and (e); and

      • (ii) make all information relating to those reviews available to the Commission to support the Commission’s assessment of compliance with the undertakings; and

      • (iii) publish quarterly reports on its performance as measured against the key performance indicators referred to in paragraphs (d) and (e); and

      • (iv) internally audit the controls and processes behind the key performance indicator reporting; and

    • (g) require Chorus to carry out quarterly customer surveys of its performance in relation to relevant regulated services; and

    • (h) require Chorus to—

      • (i) implement a policy of control of commercial information provided by access seekers for relevant services and relevant regulated services, in consultation with the Commission; and

      • (ii) internally audit the effectiveness of that policy, at the end of each of the first two 6-month periods following separation day and then annually after that; and

    • (i) require Chorus to supply the UBA service in a bundle with the local access and calling service; and

    • (j) require the directors of Chorus to certify that Chorus has complied with the undertakings; and

    • (k) provide for disclosure of relevant information to the Commission, to support the Commission's assessment of compliance with the undertakings; and

    • (l) require Chorus to commit to a reasonable plan containing time frames for a transition to the end of the sharing arrangements referred to in subpart 2.

    Section 69XB: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XC Implementation of Chorus undertakings
  • (1) On and from separation day, the undertakings approved by the Minister on or before separation day under sections 42 to 44 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 take effect as if they were a deed that is—

    • (a) properly executed by, and binding on, Chorus; and

    • (b) given in favour of the Crown.

    (2) The undertakings approved by the Minister after separation day under sections 42 to 44 of that Act take effect in accordance with subsection (1), but with effect from the date of approval.

    Section 69XC: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XD Chorus must publish Chorus undertakings
  • (1) As soon as practicable after the date on which an undertaking takes effect under section 69XC, Chorus must publish the undertaking.

    (2) Section 156AK applies with necessary modifications.

    Section 69XD: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XE Variation of Chorus undertakings
  • Sections 156AL to 156AN apply with necessary modifications to undertakings under this subpart.

    Section 69XE: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XF Termination of Chorus undertakings
  • Section 156AO applies with necessary modifications to undertakings under this subpart.

    Section 69XF: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XG Enforcement of Chorus undertakings
  • (1) Sections 156AQ to 156AS apply with necessary modifications to undertakings under this subpart.

    (2) See sections 156L(3) and 156M for the maximum penalty of $10 million (and $500,000 per day) for failure to comply with undertakings).

    Section 69XG: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 5Miscellaneous

  • Subpart 5 heading: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Public Works Act 1981

  • Heading: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XH Application of Public Works Act 1981
  • (1) Despite section 4(4) of the Finance Act 1990 and section 24(4) of the State-Owned Enterprises Act 1986, nothing in sections 40 to 42 of the Public Works Act 1981 applies to the transfer of affected land from Telecom to Chorus.

    (2) However, after that transfer, sections 40 and 41 of the Public Works Act 1981 apply to that land as if Chorus were the Crown and the transfer of the land from the Crown to Telecom and from Telecom to Chorus had not taken place.

    (3) If, in relation to affected land that has been transferred by Telecom to Chorus, an offer made by Chorus under section 40(2) of the Public Works Act 1981 is not accepted within the time specified in subsection (4) and the parties have not agreed on other terms for the sale of the land, Chorus may sell or otherwise dispose of the land to any person and on such terms and conditions as it thinks fit.

    (4) The time referred to in subsection (3) is the later of the following:

    • (a) 40 working days after the offer is made or such further period as Chorus considers reasonable:

    • (b) if an application has been made to the Land Valuation Tribunal pursuant to section 40(2A) of the Public Works Act 1981, 20 working days after the determination of the Tribunal.

    (5) In this section,—

    affected land means any land that, immediately before it was transferred by the Crown to Telecom pursuant to section 4(4) of the Finance Act 1990, was held by the Crown under the Public Works Act 1981 for a public work

    land has the same meaning as in section 2 of the Public Works Act 1981

    working day has the same meaning as in section 2 of the Public Works Act 1981.

    Section 69XH: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Resource Management Act 1991 issues

  • Heading: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XI Requiring authority status under Resource Management Act 1991
  • (1) Chorus is approved as a requiring authority, as a network utility operator, under the Resource Management Act 1991 for the following purposes:

    • (a) constructing or operating, or proposing to construct or operate, a network for the purpose of telecommunication as defined in section 5 of this Act; and

    • (b) constructing or operating, or proposing to construct or operate, a network for the purpose of radiocommunications as defined in section 2(1) of the Radiocommunications Act 1989.

    (2) Part 8 of the Resource Management Act 1991 applies with necessary modifications as if the approval had been given under section 167 of that Act.

    Section 69XI: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XJ Designations under Resource Management Act 1991
  • (1) The Minister may, before separation day, by notice in the Gazette, issue 2 lists comprising all or any of the designations (within the meaning of section 166 of the Resource Management Act 1991) for which Telecom is responsible, as follows:

    • (a) designations that are to be transferred to Chorus:

    • (b) designations that are to be additionally granted back to Telecom.

    (2) On separation day,—

    • (a) all the rights and responsibilities of Telecom in relation to the designations listed in a Gazette notice under subsection (1)(a), as they existed immediately before separation day, are transferred to Chorus for the purposes of section 180 of the Resource Management Act 1991; and

    • (b) the designations listed in a Gazette notice under subsection (1)(b), as they existed immediately before separation day, are (in addition to being transferred to Chorus) granted back to Telecom, with the effect that, subject to subsection (3), Telecom continues to have the same rights and responsibilities as Chorus in relation to the designations.

    (3) For the purposes of section 177 of the Resource Management Act 1991,—

    • (a) the designations transferred to Chorus under subsection (2)(a) are treated as earlier designations; and

    • (b) the additional designations granted to Telecom under subsection (2)(b) are treated as later designations.

    (4) Part 8 of the Resource Management 1991 applies with necessary modifications as if the designations had been transferred or made under that Part.

    Section 69XJ: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Restrictive covenants

  • Heading: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XK Certain restrictive covenants
  • (1) This section applies to any restrictive covenant that is registered in favour of land—

    • (a) of which Telecom was a registered proprietor immediately before separation day; and

    • (b) that is transferred from Telecom to Chorus on separation day.

    (2) Despite the transfer of land to Chorus, Telecom is entitled to enforce the covenant against the persons bound by the covenant as if Telecom were an owner or occupier of the land.

    (3) This section does not limit the rights to enforce the covenant of Chorus, Chorus’s successors in title, and persons claiming through Chorus or Chorus’s successors in title.

    (4) The Registrar-General may enter in the register relating to the burdened land, the benefited land, or both, a notification of the effect of this section as if it were an instrument.

    Section 69XK: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Government Superannuation Fund Act 1956

  • Heading: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XL Protection of existing members of Government Superannuation Fund
  • (1) The Government Superannuation Fund Act 1956 continues to apply to the persons referred to in subsection (2) in all respects as if service with Chorus were Government service.

    (2) The persons are every person who, immediately before separation day,—

    • (a) is employed by Telecom; and

    • (b) is deemed to be employed in the Government service under section 2A of the Government Superannuation Fund Act 1956; and

    • (c) is a contributor to the Government Superannuation Fund under Part 2 or 2A of that Act.

    (3) For the purpose of applying the Government Superannuation Fund Act 1956, the chief executive of Chorus is the controlling authority.

    Section 69XL: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 6Taxation consequences of structural separation

  • Subpart 6 heading: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XM Interpretation in this subpart
  • In this subpart, unless the context requires otherwise,––

    appointed day means,––

    • (a) for a purpose specified in a proposal approved by Order in Council made under section 46 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011, a day specified in that proposal for that purpose:

    • (b) if there is no relevant day under paragraph (a), the day on which the vesting of the designated assets and liabilities, and the demerger distribution, take effect

    Chorus company means a member of the group of companies comprising ChorusCo and the companies that are, or will be, its subsidiaries immediately following the demerger distribution and the vesting of the designated assets and liabilities

    demerger distribution means a distribution, or an entitlement to a distribution, to each holder of ordinary shares in Telecom Corporation of New Zealand Limited, where the distribution or entitlement––

    • (a) arises under the demerger arrangement; and

    • (b) comprises––

      • (i) an amount determined by reference to the value of a holder's entitlement to ordinary shares in ChorusCo:

      • (ii) ordinary shares in ChorusCo to which the holder is entitled, or proceeds from the disposal of that holder's entitlement to ordinary shares in ChorusCo

    designated assets and liabilities means assets and liabilities, or parts of assets and liabilities, as the case may be, specified in an Order in Council made under section 46 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011, and designated assets and designated liabilities have corresponding meanings

    income year has the same meaning as in the Income Tax Act 2007

    Inland Revenue Acts has the same meaning as in the Tax Administration Act 1994

    Telecom company means a member of the group of companies comprising Telecom Corporation of New Zealand Limited and the companies that are, or will be, its subsidiaries immediately following the demerger distribution and the vesting of the designated assets and liabilities

    vest means the transfer of the designated assets and liabilities from a Telecom company to a Chorus company on the appointed day

    vesting year means the income year that includes the appointed day for the vesting of the designated assets and liabilities.

    Section 69XM: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XN Purpose
  • The purpose of this subpart is to ensure that––

    • (a) the vesting of the designated assets and liabilities in Chorus does not give rise to tax consequences under the Inland Revenue Acts for Telecom or Chorus that would not have arisen if they were the same person:

    • (b) no tax consequences arise under the Inland Revenue Acts on the appointed day for any shareholder of Telecom Corporation of New Zealand Limited or Chorus from the demerger distribution that would not have arisen if the vesting of the designated assets and liabilities and the demerger distribution had not occurred.

    Section 69XN: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XO Depreciation
  • (1) For the purposes of the Income Tax Act 2007, for a designated asset (the asset) that is depreciable property,—

    • (a) the relevant Telecom company has a deduction for an amount of depreciation loss for the period beginning on the first day of the vesting year and ending on the day before the appointed day:

    • (b) the relevant Telecom company does not derive depreciation recovery income and does not have a deduction for an amount of depreciation loss under sections EE 44 to EE 52 of the Income Tax Act 2007 as a result of the vesting of the asset:

    • (c) the relevant Chorus company must calculate, on and after the appointed day, depreciation recovery income and deductions for amounts of depreciation loss as if, in respect of the period up to and including the appointed day, it and the Telecom company were the same person.

    (2) In this section, depreciable property, depreciation loss, and depreciation recovery income have the same meanings as in the Income Tax Act 2007.

    Section 69XO: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XP Tax effect of distribution of ChorusCo shares
  • (1) For the purposes of the Income Tax Act 2007, the following transactions do not give rise to, and are ignored for the purposes of calculating, the available subscribed capital of a Chorus company or a Telecom company:

    • (a) the vesting of the designated assets and liabilities:

    • (b) the demerger distribution:

    • (c) a transaction necessary for carrying into effect the vesting of the designated assets and liabilities, or the demerger distribution, if, for that transaction, there is no party other than Chorus companies and Telecom companies.

    (2) The demerger distribution on the appointed day––

    • (a) is not a dividend or other kind of assessable income for the purposes of the Income Tax Act 2007:

    • (c) is, for any relevant Telecom company, a disposition for the cost price of the share, for the purposes of the Income Tax Act 2007.

    (3) For the purposes of the Income Tax Act 2007, a person who receives a demerger distribution by virtue of holding a Telecom Corporation of New Zealand Limited share or shares is treated as––

    • (a) acquiring the relevant ChorusCo share or shares at the same time and for the same purposes as the Telecom Corporation of New Zealand Limited share or shares that give rise to that person's entitlement to the demerger distribution:

    • (b) having paid the amount given by subsection (4) for the acquisition of the ChorusCo share or shares:

    • (c) having paid the amount given by subsection (5) for the acquisition of the Telecom Corporation of New Zealand Limited share or shares.

    (4) For the purposes of subsection (3)(b), the amount paid for the acquisition is calculated using the following formula:

     pre-calculation amount paid × Chorus mv
     combined mv 

    (5) For the purposes of subsection (3)(c), the amount paid for the acquisition is calculated using the following formula:

     pre-calculation amount paid × Telecom mv
     combined mv 

    (6) In the formulas in subsections (4) and (5),––

    • (a) pre-calculation amount paid is the person's expenditure or loss incurred in acquiring the relevant Telecom Corporation of New Zealand Limited share or shares, ignoring this section:

    • (b) Chorus mv is the market capitalisation of ChorusCo calculated in the manner prescribed in a proposal approved by Order in Council under section 46 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011, or, if none is prescribed, the number of ChorusCo shares on issue immediately following the demerger distribution multiplied by the volume weighted average price of ChorusCo shares as traded on the NZSX over the first 5 trading days commencing on the date of listing of ChorusCo:

    • (c) Telecom mv is the market capitalisation of Telecom Corporation of New Zealand Limited calculated in the manner prescribed in a proposal approved by Order in Council under section 46 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011, or, if none is prescribed, the number of Telecom Corporation of New Zealand Limited shares on issue immediately following the demerger distribution multiplied by the volume weighted average price of Telecom Corporation of New Zealand Limited shares as traded on the NZSX over the first 5 trading days commencing on the date of listing of ChorusCo:

    • (d) combined mv is the total market capitalisation of ChorusCo and of Telecom Corporation of New Zealand Limited calculated in the manner prescribed in a proposal approved by Order in Council under section 46 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011, or, if none is prescribed, the total of the market capitalisation of ChorusCo and of Telecom Corporation of New Zealand Limited determined in accordance with paragraphs (b) and (c).

    (7) Subsection (8) applies where––

    • (a) an arrangement entered into on or before the appointed day would, but for the demerger distribution, be a returning share transfer or share-lending arrangement in respect of which the original share is a Telecom Corporation of New Zealand Limited share; and

    • (b) if, under the relevant arrangement in respect of the Telecom Corporation of New Zealand Limited share, the share user is required to transfer a Telecom Corporation of New Zealand Limited share or shares and a ChorusCo share or shares to the share supplier.

    (8) If subsection (7) applies,––

    • (a) the relevant ChorusCo share or shares are treated as part of the relevant Telecom Corporation of New Zealand Limited share or shares for the purposes of the definitions of identical share, original share, returning share transfer, and share-lending arrangement in the Income Tax Act 2007:

    • (b) subsection (3) applies to the share supplier as if the share supplier were the person referred to in that subsection.

    (9) In this section, available subscribed capital, dividend, identical share, original share, returning share transfer, share-lending arrangement, share supplier, and share user have the same meanings as in the Income Tax Act 2007.

    Section 69XP: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XQ Goods and Services Tax Act 1985
  • (1) The vesting of the designated assets and liabilities is treated as being a taxable supply on the appointed day that is charged with tax at the rate of 0% for the purposes of the Goods and Services Tax Act 1985.

    (2) For the purpose of calculating, under the Goods and Services Tax Act 1985, the amount of tax payable, or input tax deductible, on or after the appointed day by a Chorus company in respect of, or in relation to, a designated asset or a designated liability, the Chorus company and the relevant Telecom company are treated as if they were the same person in respect of the period up to and including the appointed day, subject to subsection (1).

    (3) If it is necessary for a tax invoice, a credit note, or a debit note (the document) to be issued by or to a Telecom company in respect of a supply made by or to a Telecom company before the appointed day, the document may be issued by or to a Chorus company if the supply was in respect of or in relation to designated assets and liabilities. The Chorus company and the Telecom company are treated as if, in relation to that supply, they were the same person for the purposes of any requirement in the Goods and Services Tax Act 1985 that the Telecom company holds, has previously been issued with, or has issued to a person, a tax invoice, a debit note, or a credit note for the supply.

    (4) In this section, credit note, debit note, input tax, supply, tax, and tax invoice have the same meanings as in the Goods and Services Tax Act 1985.

    Section 69XQ: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XR Prepayments
  • (1) For the purposes of the Income Tax Act 2007,––

    • (a) for the vesting year, the relevant Telecom company is treated as having an unexpired amount of expenditure under section EA 3 of that Act (the unexpired portion) for expenditure connected with the designated assets and liabilities, calculated by applying section EA 3(4) to (7) of that Act as if the day before the appointed day were the end of an income year:

    • (b) the relevant Telecom company has, for the vesting year, income under section CH 2 of that Act for the unexpired portion described in paragraph (a):

    • (c) for an income year starting after the appointed day, the relevant Telecom company is not allowed a deduction for the unexpired portion under section DB 50 of that Act, and no part of the unexpired portion is income under section CH 2 of that Act:

    • (d) the relevant Chorus company has, for the vesting year, a deduction for the unexpired portion described in paragraph (a) under section DB 50 of that Act:

    • (e) for the vesting year and any subsequent income year, section EA 3 of that Act applies to the relevant Chorus company as if that member had been allowed a deduction under that Act for expenditure to which paragraph (a) applies.

    (2) In this section, expenditure means expenditure that the relevant Telecom company has been allowed a deduction for under the Income Tax Act 2007 or an earlier Act, and that was not incurred on the items described in section EA 3(2) of that Act.

    Section 69XR: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XS Expenditure or loss incurred, and amounts derived
  • A Chorus company and the relevant Telecom company are treated as the same person for the period prior to and including the appointed day for the purpose of determining the following, under the Income Tax Act 2007:

    • (a) whether a deduction is allowed for an amount of expenditure or loss incurred by the Chorus company in connection with the designated assets or liabilities:

    • (b) the amount of any deduction of the Chorus company in connection with the designated assets or liabilities:

    • (c) whether an amount derived by the Chorus company in connection with the designated assets or liabilities is income:

    • (d) the amount of any income of the Chorus company in connection with the designated assets or liabilities.

    Section 69XS: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XT Bad debts
  • Sections CG 3 and DB 31 of the Income Tax Act 2007 apply to a relevant Chorus company in respect of any obligation that is owed to the relevant Telecom company immediately before the appointed day and that vests in the Chorus company, as if the Telecom company and the Chorus company were the same person in respect of the period up to and including the appointed day.

    Section 69XT: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XU Unpaid employment expenditure
  • Sections DC 11(2) and (3) and EA 4(6) of the Income Tax Act 2007 apply to any amount of employment income (as that term is defined in the Income Tax Act 2007) that a Chorus company assumes the obligation to pay in connection with the vesting. For the purposes of those sections, the Chorus company is treated as person B, and the relevant Telecom company that incurred the obligation to pay is treated as person A.

    Section 69XU: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XV Vesting of designated assets and liabilities
  • The vesting of the designated assets and liabilities in a Chorus company—

    • (b) does not give rise to a dividend, or, except as provided in this subpart, other assessable income, for the purposes of the Income Tax Act 2007:

    • (c) does not, except as provided in this subpart, give rise to a deduction for the purposes of the Income Tax Act 2007.

    Section 69XV: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XW Revenue account property
  • (1) For the purposes of the Income Tax Act 2007, for a designated asset or liability that is revenue account property (the property), the property is treated as being disposed of by the relevant Telecom company and acquired by the relevant Chorus company for an amount equal to the property's tax book value.

    (2) In this section, tax book value means,––

    • (a) for the property, if it is trading stock or an excepted financial arrangement acquired by the relevant Telecom company before the vesting year, the opening value of the property under section DB 49 of the Income Tax Act 2007 for that Telecom company for the vesting year:

    • (b) for the property, if paragraph (a) does not apply, the amount of expenditure or loss for which the relevant Telecom company is allowed a deduction in the vesting year as a result of the disposal.

    (3) In this section, excepted financial arrangement, revenue account property, and trading stock have the same meaning as in the Income Tax Act 2007.

    Section 69XW: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XX Leased assets
  • For the purposes of the Income Tax Act 2007, for expenditure that a Telecom company incurs as a lessee under a lease that relates to a designated asset and to which section EJ 10 of the Income Tax Act 2007 applies,—

    • (a) the Telecom company must calculate an amount to be allocated to the vesting year under section EJ 10(3) and (4) of that Act as if the day before the appointed day were the end of the vesting year:

    • (b) the relevant Chorus company must calculate an amount to be allocated to the vesting year under section EJ 10(3) and (4) of that Act as if the appointed day were the start of the vesting year:

    • (c) section EJ 10 of that Act applies to the Chorus company for income years after the vesting year as if, in respect of the period up to and including the appointed day, the Telecom company and the Chorus company were the same person.

    Section 69XX: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XY Finance leases: financial arrangements rules
  • (1) For the purposes of the financial arrangements rules as defined in section EW 1(2) of the Income Tax Act 2007, for a finance lease that a Telecom company is party to immediately before the appointed day and vests in a Chorus company on the appointed day,––

    • (a) if the finance lease is an asset of the Telecom company, the Chorus company is treated as paying to the Telecom company an amount of consideration for the finance lease that is equal to the tax book value of the finance lease on the relevant day:

    • (b) if the finance lease is a liability of the Telecom company, the Telecom company is treated as paying to the Chorus company an amount of consideration for the finance lease that is equal to the tax book value of the finance lease on the relevant day:

    • (c) the Telecom company must calculate, on the relevant day, a base price adjustment under section EW 31 of the Income Tax Act 2007:

    • (d) if the Chorus company calculates, on or after the relevant day, a base price adjustment under section EW 31 of that Act, that base price adjustment must be calculated as if, in respect of the period up to and including the relevant day, it and the Telecom company were the same person:

    (2) In this section,––

    • (b) tax book value means, for the relevant day and a finance lease, the value for tax purposes of the finance lease on the relevant day determined consistently with the method used in subpart EW of the Income Tax Act 2007 to calculate and allocate income and expenditure under the finance lease as if the day immediately preceding the relevant day were the last day of an income year.

    Section 69XY: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69XZ Approved issuer levy and administrative status
  • (1) For the purposes of the Income Tax Act 2007 and the Stamp and Cheque Duties Act 1971, a transaction or class of transactions registered as a registered security or as registered securities by a Telecom company on or prior to the appointed day is treated as also being registered as a registered security or as registered securities, as the case may be, by the relevant Chorus company. The relevant Chorus company is treated as an approved issuer in respect of the registered security or registered securities, as the case may be.

    (2) The relevant Telecom company and the relevant Chorus company are treated as the same person, for the period prior to and including the appointed day, for the purposes of the making, giving, or receiving of any election, notice, certificate, and filing provided for under the Inland Revenue Acts.

    (3) A Telecom company and the relevant Chorus company are treated as the same person for the purposes of receiving the benefit of––

    • (a) a provisional rate, as defined in section EE 67 of the Income Tax Act 2007:

    (4) In this section, registered security has the same meaning as in the Income Tax Act 2007.

    Section 69XZ: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 51 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Part 2B
Information disclosure requirements

  • Part 2B: inserted, on 22 December 2006, by section 32 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

69Y Purpose
  • The purpose of this Part is to promote competition in telecommunications markets for the long-term benefit of end-users of telecommunications services in New Zealand by requiring that reliable and timely information prescribed by the Commission is made publicly available—

    • (a) by Telecom, so that a wide range of people are informed about the operation and behaviour of Telecom's network, wholesale, and retail business activities and services; and

    • (b) by access providers, including Telecom, so that a wide range of people are informed about the operation and behaviour of prescribed businesses that provide prescribed services, in order to monitor and facilitate compliance with prescribed applicable access principles.

    Compare: 1986 No 5 s 57T(1)

    Section 69Y: inserted, on 22 December 2006, by section 32 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

69Z Parameters of Part
  • The Commission's requirements under this Part must be reasonable, having regard to the purpose of this Part, the confidentiality of the information in question, and the time required to prepare the information.

    Section 69Z: inserted, on 22 December 2006, by section 32 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

69ZA Interpretation
  • In this Part, unless the context otherwise requires,—

    disclose means to publish or make publicly available or otherwise supply, as may be required by the Commission

    information and disclosed information includes any statements, certificates, or other information required to be disclosed under this Act

    prescribed means prescribed by the Commission.

    Compare: 1986 No 5 s 57T(6)

    Section 69ZA: inserted, on 22 December 2006, by section 32 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

69ZB Accounting separation of Telecom
  • [Repealed]

    Section 69ZB: repealed, on 1 July 2011, by section 47 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69ZC Information disclosure by all access providers
  • (1) This section applies—

    • (a) to any access provider in relation to any part of its business that provides prescribed designated or specified services; and

    • (b) for the purpose of enabling monitoring of, and facilitating compliance with, prescribed applicable access principles—

      • (i) that are incorporated in any determination, approved code, or registered undertaking; and

      • (ii) with which the access provider is required to comply.

    (2) The Commission—

    • (a) may require the access provider to prepare and disclose information about the operation and behaviour of that part of its business; and

    • (b) may require the access provider to adopt, in the preparation or compilation of that information, any methodology that is required by the Commission.

    (3) The Commission may require the access provider to prepare and disclose information consisting of, or about, the following things, as part of the information required under this section,—

    • (a) contracts:

    • (b) prices, terms, and conditions of supply of prescribed services:

    • (c) transactions with related parties (as if the test for related parties were the same as the test in section 79):

    • (d) performance measures and statistics (for example, response times, technical performance, and service quality details):

    • (e) plans and forecasts:

    • (f) network capacity information:

    • (g) policies and methodologies in these or other areas.

    (4) Access providers must prepare and disclose any information required under this section in accordance with the Commission's requirements.

    (5) Subsection (3) does not limit subsection (2).

    Compare: 1986 No 5 s 57T(2), (3)

    Section 69ZC: inserted, on 22 December 2006, by section 32 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

69ZD Miscellaneous provisions relating to Commission's information disclosure requirements
  • (1) The Commission may, in making requirements under section 69ZC

    • (a) prescribe the form and manner in which information must be disclosed:

    • (b) specify a time or date, or times or dates, as at which information must be disclosed:

    • (c) require the disclosure of assumptions made in the preparation of the information:

    • (d) require the audit of disclosed information:

    • (e) require disclosed information, or information from which disclosed information is derived (in whole or in part), to be certified, in the prescribed form and manner by persons belonging to any specified class of persons:

    • (f) set rules about when and for how long information must be disclosed:

    • (g) require the retention of data on which disclosed information is based and associated documentation:

    • (h) exempt or provide for exemptions (including provide for the revocation of exemptions), on any terms and conditions, of any person or class of persons from all or any of the requirements:

    • (i) provide for transitional provisions:

    • (j) make requirements from time to time (for example, more than once a year):

    • (k) make requirements in respect of all or part of the relevant business.

    (2) Subsection (1)(j) does not limit section 16 of the Interpretation Act 1999.

    Compare: 1986 No 5 s 57T(8)

    Section 69ZD: inserted, on 22 December 2006, by section 32 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 69ZD(1): amended, on 1 July 2011, by section 48 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

69ZE Publication of Commission's information disclosure requirements
  • The Commission must give public notice of requirements made under this Part.

    Compare: 1986 No 5 s 57T(4)

    Section 69ZE: inserted, on 22 December 2006, by section 32 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

69ZF Information to be supplied to Commission
  • (1) Every person who is required under this Part to disclose information must supply to the Commission—

    • (a) a copy of all information disclosed under this Part, which must be supplied within 5 working days after the information is first disclosed under this Part; and

    • (b) any further statements, reports, agreements, particulars, and other information requested in writing by the Commission for the purpose of monitoring the person's compliance with the requirements made under this Part.

    (2) Every person to whom a request is made under subsection (1)(b) must comply with that request within the period specified by the Commission.

    (3) The Commission may require all or any statements, reports, agreements, particulars, and other information supplied under subsection (1) to be either or both—

    • (a) audited:

    • (b) verified by statutory declaration by the persons and in the form required by the Commission.

    Compare: 1986 No 5 s 57U

    Section 69ZF: inserted, on 22 December 2006, by section 32 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

69ZG Commission to publish summaries
  • The Commission must, as soon as practicable after the Commission is supplied with information under section 69ZF, publish a summary and analysis of the disclosed information for the purpose of promoting greater understanding of—

    • (a) the operation and behaviour of the relevant prescribed businesses of Telecom and access providers; and

    • (b) the changes in operation and behaviour over time.

    Compare: 1986 No 5 s 57V

    Section 69ZG: inserted, on 22 December 2006, by section 32 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

69ZH Reasonable charge may be imposed for providing copies of statements
  • (1) Any person who is required under this Part to provide copies of information, on request, to the public may charge for providing those copies.

    (2) A charge must be no more than is reasonably required to recover the costs of providing those copies.

    Compare: 1986 No 5 s 57W

    Section 69ZH: inserted, on 22 December 2006, by section 32 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Part 3
Telecommunications service obligations

Subpart 1TSO instruments

70 Declaration of TSO instruments
  • (1) The purpose of this section is to facilitate the supply of certain telecommunications services to groups of end-users within New Zealand to whom those telecommunications services may not otherwise be supplied on a commercial basis or at a price that is considered by the Minister to be affordable to those groups of end-users.

    (2) Subject to subsection (3), the Governor-General may, by Order in Council made on the recommendation of the Minister, declare an instrument that is identified in the Order in Council and that meets the requirements set out in subsection (4) to be a TSO instrument.

    (3) The Minister must not make a recommendation under subsection (2) unless—

    • (a) the service provider to whom the instrument applies agrees to the instrument being declared a TSO instrument; and

    • (b) the Minister has first—

      • (i) consulted liable persons and any persons and organisations that the Minister considers appropriate having regard to the subject matter of the proposed TSO instrument; and

      • (ii) assessed whether or not contestability could reasonably be achieved in relation to each of the obligations to which the instrument applies.

    (4) An instrument that is to be declared a TSO instrument must—

    • (a) record a contract or arrangement or an understanding between the Crown and a service provider for the supply of a particular telecommunications service or range of telecommunications services; and

    • (b) identify the group of end-users to whom the service must be supplied; and

    • (c) define the geographical area within which the service must be supplied; and

    • (d) specify the retail price at, or below which, the service must be supplied; and

    • (e) specify the criteria that must be met for the standard of the service to be supplied.

    (5) [Repealed]

    Section 70(5): repealed, on 22 December 2006, by section 33 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

71 Deemed TSO instrument
  • (1) Despite anything to the contrary in section 70, any other enactment, or rule of law, an instrument of the kind referred to in subsection (2) is deemed to be a TSO instrument (deemed TSO instrument) for the purposes of this Part (as if that instrument had been declared to be a TSO instrument under section 70).

    (2) Subsection (1) applies to any other instrument that—

    • (a) includes or records provisions that state that the parties intend the instrument to be a deemed TSO instrument under this Act; and

    • (b) is conditional on, or entered into as a consequence of, the structural separation of Telecom.

    Section 71(2): substituted, on 1 July 2011, by section 8 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

71A TSO instrument may specify total amount payable by the Crown
  • (1) A TSO instrument may specify the total amount payable by the Crown under the instrument for each financial year (the specified amount).

    (2) The total amount may be specified as—

    • (a) a fixed monetary amount; or

    • (b) a capped monetary amount; or

    • (c) an indexed monetary amount; or

    • (d) a formula for the calculation of a monetary amount; or

    • (e) any combination of paragraphs (a) to (d).

    Section 71A: substituted, on 1 July 2011, by section 9 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

72 New KSO does not alter or revoke constitution of Telecom
  • [Repealed]

    Section 72: repealed, on 1 July 2011, by section 10 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

73 When KSO part of original KSO ceases to have effect
  • [Repealed]

    Section 73: repealed, on 1 July 2011, by section 10 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

74 Compliance with TSO instrument
  • (1) A TSO provider must comply with the terms of a TSO instrument.

    (2) The statutory duty in subsection (1) does not limit or affect any right, duty, liability, or remedy in respect of a TSO instrument that exists or is available apart from this Act.

    Section 74: substituted, on 1 July 2011, by section 11 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

75 Variation of TSO instrument
  • A variation of—

    • (a) an instrument that is declared to be a TSO instrument under section 70 must be treated as part of the TSO instrument as long as the TSO instrument continues to meet the requirements set out in section 70(4):

    • (b) a deemed TSO instrument must be treated as part of the deemed TSO instrument.

    Section 75 heading: amended, on 1 July 2011, by section 12(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 75(a): amended, on 1 July 2011, by section 12(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

76 When instrument ceases to be TSO instrument
  • (1) An instrument ceases to be a TSO instrument,—

    • (a) in the case of an instrument that is declared to be a TSO instrument under section 70, if the Governor-General, by Order in Council made on the recommendation of the Minister, revokes the declaration of that TSO instrument; or

    • (b) in the case of a deemed TSO instrument, on a date appointed by the Governor-General by Order in Council made on the recommendation of the Minister; or

    • (c) if the instrument is terminated in accordance with its terms.

    (2) The Minister must not make a recommendation under subsection (1)(a) or (b) unless,—

    • (a) in the case of an instrument that is declared to be a TSO instrument under section 70, the service provider to whom that instrument applies agrees to the revocation of the declaration; or

    • (b) in the case of a deemed TSO instrument, the service provider to whom that instrument applies agrees to that instrument ceasing to have effect as a deemed TSO instrument.

    Section 76: substituted, on 1 July 2011, by section 13 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

77 Notification of TSO instrument
  • (1) The Minister must notify the Commission of—

    • (a) every instrument that is declared to be a TSO instrument under section 70; and

    • (b) every deemed TSO instrument.

    (2) The Commission must give public notice of every TSO instrument.

    Section 77: substituted, on 1 July 2011, by section 14 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

78 Application of Commerce Act 1986
  • Part 2 of the Commerce Act 1986 does not apply in respect of a TSO instrument or a contract, arrangement, or understanding to which the TSO instrument relates or any matter necessary for giving effect to the TSO instrument or the contract, arrangement, or understanding.

79 When 2 or more bodies corporate must be treated as 1 person
  • (1) For the purposes of this Part, any 2 or more bodies corporate must be treated as 1 person if—

    • (a) one of them is a body corporate of which the others are subsidiaries; or

    • (b) all of them are subsidiaries of the same body corporate; or

    • (c) all of them are associates of each other; or

    • (d) one of them owns or controls shares that in the aggregate carry the right to exercise or control the exercise of 20% or more of the voting power at meetings of the others; or

    • (e) a third person owns or controls shares in each of them that carry the right to exercise or control the exercise of 20% or more of the voting power at meetings of each of them.

    (2) For the purposes of subsection (1)(c), a body corporate is an associate of another if that body corporate is able, whether directly or indirectly, to exert a substantial degree of influence over the activities of the other.

    (3) A body corporate is not able to exert a substantial degree of influence over another body corporate for the purposes of subsection (2) just because—

    • (a) those bodies corporate are in competition in the same market; or

    • (b) one of them supplies goods or services to the other.

    Section 79: substituted, on 22 December 2006, by section 36 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Subpart 2Amounts payable by liable persons to the Crown

  • Subpart 2 heading: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Annual procedure for determining amounts payable by liable persons to the Crown

  • Heading: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

80 Interpretation
  • In this subpart, unless the context otherwise requires,—

    financial statements,—

    • (a) except if section 79 applies, has the same meaning as in section 6 of the Financial Reporting Act 2013; and

    • (b) if section 79 applies, means a consolidated statement of financial performance of the 2 or more bodies corporate required by that section to be treated as 1 person, prepared in accordance with generally accepted accounting practice, as defined in section 8 of the Financial Reporting Act 2013

    minimum telecommunications revenue means $10 million, or such other amount, as may be prescribed by regulations made under section 101(1)(a), of gross revenue (as may be determined in accordance with any specifications set by the Commission) that a liable person receives during a financial year for supplying either or both of the following (excluding any amount paid to a liable person by the Crown as compensation for the cost of complying with a TSO instrument that contains a specified amount):

    • (a) telecommunications services by means of its PTN:

    • (b) telecommunications services by means that rely primarily on the existence of its PTN or any other PTN.

    Section 80: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 80 financial statements: replaced, on 1 April 2014, by section 126 of the Financial Reporting (Amendments to Other Enactments) Act 2013 (2013 No 102).

Requirement to produce certain information

[Repealed]

  • Heading: repealed, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

81 Subpart does not apply to certain liable persons
  • (1) This subpart does not apply to a liable person in respect of a financial year (financial year A) if—

    • (a) the liable person was not trading in the financial year preceding financial year A; or

    • (b) the liable person's telecommunications revenue for the year preceding financial year A was less than the minimum telecommunications revenue.

    (2) For the purpose of determining whether a person is a liable person to whom this subpart applies in respect of a financial year, the Commission may, by written notice to that person, require the person to provide to the Commission, within the time specified in the notice,—

    • (a) a copy of the person's financial statements for the year preceding financial year A; and

    • (b) any further information specified by the Commission for the purpose of enabling it to verify the telecommunications revenue of that person for the year preceding financial year A; and

    • (c) a certificate that complies with subsection (3).

    (3) A certificate complies with this subsection if—

    • (a) it certifies the person's telecommunications revenue for the year preceding financial year A; and

    • (b) it is signed by 2 directors of the person with the authority of the other directors.

    Section 81: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

82 Liable persons must produce information on qualified revenue
  • Not later than 60 working days before the end of each financial year (financial year A), each liable person must provide to the Commission a copy of—

    • (a) its financial statements for the financial year preceding financial year A; and

    • (b) any further information specified by the Commission for the purpose of enabling it to verify the qualified revenue of that person for the financial year preceding financial year A.

    Section 82: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Net cost

[Repealed]

  • Heading: repealed, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

83 Liable persons must produce information for purposes of liability allocation determination
  • (1) Not later than 60 working days after the end of each financial year, each liable person must provide to the Commission—

    • (a) all prescribed information or, if there is no prescribed information, information specified by the Commission, for the purpose of enabling the Commission to make its determination in accordance with section 88(a); and

    • (b) a report that complies with subsection (2).

    (2) A report complies with this subsection if—

    • (a) it is prepared by a qualified auditor; and

    • (b) it includes a statement of the extent to which the information provided by the liable person under subsection (1)(a) is correct and complete.

    Section 83: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

84 Commission to prepare draft liability allocation determination
  • (1) The Commission must—

    • (a) prepare a draft liability allocation determination for each financial year; and

    • (b) give public notice of that draft determination; and

    • (c) include in the public notice the closing date for submissions, which must be not later than 20 working days after the date of giving public notice.

    (2) The Commission must make reasonable efforts to do the things referred to in subsection (1) not later than 80 working days after the end of the financial year.

    Section 84: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Amount of revenue received by liable persons in relation to TSO instrument

[Repealed]

  • Heading: repealed, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

85 Matters to be included in draft liability allocation determination
  • (1) A draft liability allocation determination must include—

    • (a) the amount of each liable person's qualified revenue; and

    • (b) the amount of the telecommunications development levy payable by each liable person for the financial year, calculated in accordance with the following formula:

       a ×c  
      b

      where—

      a
      is the amount of the liable person's qualified revenue
      b
      is the sum of all liable persons' qualified revenue
      c
      is the telecommunications development levy specified for the relevant year in Schedule 3B; and
    • (c) the methodology applied by the Commission in preparing the determination; and

    • (d) the reasons for the determination.

    (2) To avoid doubt, the Commission may determine what revenue basis to use for the purposes of subsection (1)(a) (for example, a net revenue basis).

    Section 85: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

General provision relating to TSO cost allocation determination and TSO cost calculation determination

[Repealed]

  • Heading: repealed, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

86 Conferences on draft liability allocation determination
  • The Commission may—

    • (a) hold conferences in relation to the draft liability allocation determination; and

    • (b) invite to those conferences any person who has a material interest in the determination.

    Section 86: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

TSO cost allocation determination

[Repealed]

  • Heading: repealed, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

87 Commission to prepare final liability allocation determination
  • (1) The Commission must—

    • (a) prepare a final liability allocation determination; and

    • (b) give public notice of that final determination; and

    • (c) give a copy of that final determination to all liable persons.

    (2) The Commission must make reasonable efforts to do the things referred to in subsection (1) not later than 20 working days after the closing date for submissions specified in accordance with section 84(1)(c).

    Section 87: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

88 Matters to be included in final liability allocation determination
  • A final liability allocation determination must include—

    • (a) the amount of each liable person's qualified revenue; and

    • (b) the amount of the telecommunications development levy payable by each liable person, calculated in accordance with the formula set out in section 85(1)(b); and

    • (c) the methodology applied by the Commission in preparing the determination; and

    • (d) the reasons for the determination.

    Section 88: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

89 Payment by liable persons to the Crown
  • (1) Each liable person must pay to the Crown the amount set out in the determination in accordance with section 88(b) not later than 20 working days after the date that the determination is publicly notified.

    (2) If that amount is not paid on or before the due date,—

    • (a) it is recoverable in any court of competent jurisdiction as a debt due to the Crown; and

    • (b) the liable person must pay the Crown interest on the unpaid amount at the 90-day bank bill rate (as at 21 working days after the date on which the determination is publicly notified) plus 5% for the period from the time the amount was due until the time at which it is paid.

    (3) Subsection (2) does not authorise the imposing of interest on interest.

    Section 89: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

General matters

  • Heading: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

90 Crown use of telecommunications development levy
  • (1) The amounts paid by liable persons under section 89 (collectively, the telecommunications development levy) may be used for the following purposes:

    • (a) to pay TSO charges:

    • (b) to pay for non-urban telecommunications infrastructure development:

    • (c) to pay for upgrades to the emergency service calling system:

    • (d) any other purpose that the Minister considers will facilitate the supply of certain telecommunications services to groups of end-users within New Zealand to whom those telecommunications services may not otherwise be supplied on a commercial basis or at a price that is considered by the Minister to be affordable to those groups of end-users.

    (2) The telecommunications development levy must not be used for a purpose under subsection (1)(d) unless the Minister has first consulted liable persons and any persons and organisations that the Minister considers appropriate having regard to the proposed use of the levy.

    (3) To avoid doubt, except as provided in section 94L, nothing in this section requires the Crown to use any amount paid by liable persons under section 89 within any particular time.

    Section 90: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

91 Commission must notify final liability allocation determination before notifying TSO cost calculation determination
  • (1) The Commission may determine the priority between the preparation of a liability allocation determination and the preparation of a TSO cost calculation determination and, accordingly, may comply with sections 84 to 88 and sections 94F to 94K in the sequence, as between those 2 sets of sections, as it thinks fit.

    (2) However, the Commission must publicly notify a final liability allocation determination for each financial year in accordance with section 87(1)(b) before it publicly notifies any final TSO cost calculation determination for that financial year in accordance with section 94J(1)(b).

    Section 91: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

TSO cost calculation determination

[Repealed]

  • Heading: repealed, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

92 Annual telecommunications development levy may be reduced by Order in Council
  • (1) The Governor-General may, by Order in Council made on the recommendation of the Minister, amend Schedule 3B by reducing the annual telecommunications development levy set out in that schedule for 1 or more future years.

    (2) The Minister must not recommend the making of an order unless the Minister is satisfied that the full amount set out in Schedule 3B is not required for the purposes in section 90.

    Section 92: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 2ATSO charges payable by the Crown

  • Subpart 2A: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Assessment of compliance

  • Heading: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

93 Assessment of compliance with TSO instrument
  • Not later than 60 working days after the end of each financial year, the Commission must—

    • (a) assess a TSO provider's compliance with its TSO instrument during that financial year in accordance with any process set out in the TSO instrument; and

    • (b) notify the TSO provider and the Minister, in writing, of any non-compliance by the TSO provider with the TSO instrument.

    Section 93: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

93A Matters to be included in draft TSO cost calculation determination
  • [Repealed]

    Section 93A: repealed, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

93B Conferences on draft TSO cost calculation determination
  • [Repealed]

    Section 93B: repealed, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

93C Commission to prepare final TSO cost calculation determination
  • [Repealed]

    Section 93C: repealed, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

93D Requirements for final TSO cost calculation determination
  • [Repealed]

    Section 93D: repealed, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

93E Matters to be included in final TSO cost calculation determination
  • [Repealed]

    Section 93E: repealed, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Calculation of amount payable by liable person

[Repealed]

  • Heading: repealed, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

93F Calculation of amount payable by liable person
  • [Repealed]

    Section 93F: repealed, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

TSO provider may request TSO cost calculation determination

  • Heading: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94 TSO provider under TSO instrument without specified amount may request TSO cost calculation determination
  • (1) If a TSO provider under a TSO instrument that does not contain a specified amount wishes to have the TSO charges for the instrument determined in respect of a financial year, the TSO provider must notify the Commission that it wishes to invoke the procedure in sections 94D to 94K for the preparation of a TSO cost calculation determination for that financial year.

    (2) The notification must be—

    • (a) in writing; and

    • (b) given not later than 90 working days after the end of the relevant financial year.

    (3) A TSO provider under a deemed TSO instrument who gives notice under subsection (1) must, at the time of giving that notice to the Commission, serve a copy of the notice on every other TSO provider under a deemed TSO instrument.

    Section 94: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 94(3): added, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 54 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Calculation of amount payable by TSO provider

[Repealed]

  • Heading: repealed, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94A TSO provider who requests TSO cost calculation determination liable for costs in certain circumstances
  • (1) A TSO provider who notifies the Commission under section 94 must, if the Commission determines the TSO charges for the instrument to be zero, pay the costs of the Commission relating to the procedure in sections 94F to 94K for the preparation of the TSO cost calculation determination (including the costs of any expert advice) as directed by the Commission in writing.

    (2) The Commission may enforce a direction given under subsection (1) by filing it in the prescribed form in the Wellington Registry of the High Court.

    (3) A direction that is filed in the Registry of the High Court under this section is enforceable as a judgment of the High Court in its civil jurisdiction.

    Section 94A: substituted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94B Withdrawal of request for TSO cost calculation determination
  • (1) A TSO provider who notifies the Commission under section 94 may subsequently withdraw its request for a TSO cost calculation determination.

    (2) The withdrawal must be made by submitting a notice in writing to the Commission before the Commission publicly notifies its final TSO cost calculation determination under section 94J(1)(b).

    (3) A TSO provider who withdraws a request for a TSO cost calculation determination must pay the costs of the Commission (including the costs of any expert advice) relating to as much of the procedure in sections 94F to 94K as has been undertaken in preparing the determination before the withdrawal, as directed by the Commission in writing.

    (4) Section 94A(2) and (3) apply to the enforcement of the direction.

    Section 94B: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94C TSO charges deemed to be zero if TSO provider does not request TSO cost calculation determination
  • If a TSO provider under a TSO instrument that does not contain a specified amount does not notify the Commission in accordance with section 94,—

    • (b) the TSO charges for the instrument are deemed to be zero.

    Section 94C: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Annual procedure for determining TSO charges payable by the Crown

  • Heading: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94D Calculations of net cost and auditor's report must be given to Commission
  • (1) Not later than 90 working days after the end of each financial year, a TSO provider under a TSO instrument that does not contain a specified amount must provide to the Commission—

    • (a) calculations of the net cost to the TSO provider of complying with the TSO instrument during the financial year; and

    • (b) a report prepared by a qualified auditor that includes a statement of whether or not the calculations comply with—

      • (i) any prescribed requirements relating to those calculations; and

      • (ii) any requirements of the Commission.

    (2) This section is subject to section 94C.

    Section 94D: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94E Considerations for determining net cost
  • (1) In calculating the net cost under section 94D and calculating the net cost for the purposes of a draft TSO cost calculation determination under section 94F and a final TSO cost calculation determination under section 94J, the following must be taken into account:

    • (a) in the case of an instrument that is declared to be a TSO instrument under section 70, the range of direct and indirect revenues and associated benefits derived from providing telecommunications services to commercially non-viable end-users, less the costs of providing those services to those end-users:

    • (b) in the case of a deemed TSO instrument, the range of direct and indirect revenues and associated benefits derived from providing telecommunications services to all end-users connected to existing residential lines, less the costs of providing those services to those end-users:

    • (c) the provision of a reasonable return on the incremental capital employed in providing those services to end-users.

    (2) Subsection (1) is subject to subsections (3) and (4).

    (3) In calculating the net cost for the purposes of a draft TSO cost calculation determination under section 94F and a final TSO cost calculation determination under section 94J, the Commission—

    • (a) may choose not to include profits from any new telecommunications services that involve significant capital investment and that offer capabilities not available from established telecommunications services; and

    • (b) must not include any losses from telecommunications services other than services that the TSO instrument requires the TSO provider to provide; and

    • (c) must consider the purpose set out in section 18.

    (4) In calculating the net cost under section 94D, the TSO provider must comply with any requirements of the Commission relating to the application of subsection (3)(a) to (c).

    (5) In this section,—

    established telecommunications services means telecommunications services that are not new telecommunications services

    new telecommunications services means telecommunications services that were first provided in New Zealand within 5 years before the start of the financial year to which the calculation of the net cost relates.

    Section 94E: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94EA Calculations of net revenue and auditor's report must be given to Commission
  • (1) This section applies to a TSO provider under a deemed TSO instrument that requires the TSO provider to provide a telecommunications service to end-users and who is served with a copy of a notice under section 94(3).

    (2) Not later than 60 days after receiving the copy of the notice served under section 94(3), a TSO provider to whom this section applies must provide to the Commission—

    • (a) calculations of the net revenue of the TSO provider for the financial year; and

    • (b) a report prepared by a qualified auditor that includes a statement of whether the calculations comply with—

      • (i) any prescribed requirements relating to those calculations; and

      • (ii) any requirements of the Commission.

    Section 94EA: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 55 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94EB Considerations for determining net revenue
  • (1) In calculating net revenue under section 94EA and calculating net revenue for the purposes of a draft TSO cost calculation determination under section 94F and a final TSO cost calculation determination under section 94J, the provision of a reasonable return on the incremental capital employed in providing telecommunications services to end-users must be taken into account.

    (2) In calculating the net revenue for the purposes of a draft TSO cost calculation determination under section 94F and a final TSO cost calculation determination under section 94J, the Commission—

    • (a) may choose not to include profits from any new telecommunications services that involve significant capital investment and that offer capabilities not available from established telecommunications services; and

    • (b) must not include any losses from telecommunications services other than services that the TSO instrument requires the TSO provider to provide; and

    • (c) must consider the purpose set out in section 18.

    (3) In calculating net revenue under section 94EA, the TSO provider must comply with any requirements of the Commission relating to the application of subsection (2)(a) to (c).

    (4) In this section, established telecommunications services and new telecommunications services have the same meanings as in section 94E.

    Section 94EB: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 55 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94F Commission to prepare draft TSO cost calculation determination
  • (1) The Commission must—

    • (a) prepare a draft TSO cost calculation determination in respect of each TSO instrument for each financial year; and

    • (b) give public notice of that draft determination; and

    • (c) include in the public notice the closing date for submissions, which must be not later than 20 working days after the date of giving public notice.

    (2) The Commission must make reasonable efforts to do the things referred to in subsection (1) not later than 120 working days after the end of the financial year.

    (3) This section is subject to sections 94 and 94C.

    Section 94F: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94G Matters to be included in draft TSO cost calculation determination
  • A draft TSO cost calculation determination must include,—

    • (a) if the TSO instrument does not contain a specified amount, the net cost to the TSO provider of complying with the TSO instrument during the financial year and all material information that—

      • (i) relates to the calculation of the net cost; and

      • (ii) would not, in the opinion of the Commission, be likely to unreasonably prejudice the commercial position of the TSO provider; and

    • (ab) if the TSO instrument does not contain a specified amount and is a deemed TSO instrument, the net revenue of all providers under deemed TSO instruments, excluding the provider whose net cost is set out in paragraph (a), and all material information that—

      • (i) relates to the calculation of the net revenue; and

      • (ii) would not, in the opinion of the Commission, be likely to unreasonably prejudice the commercial position of any TSO provider; and

    • (b) if the TSO instrument contains a specified amount, the dollar amount of the specified amount and all material information that—

      • (i) relates to the calculation of that amount; and

      • (ii) would not, in the opinion of the Commission, be likely to unreasonably prejudice the commercial position of the TSO provider; and

    • (c) the amount (if any) by which the total amount that the TSO provider would receive from the Crown in relation to the TSO instrument must be reduced because the TSO provider has not complied with the TSO instrument; and

    • (d) the methodology applied by the Commission in preparing the determination; and

    • (e) the reasons for the determination.

    Section 94G: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 94G(ab): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 56 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94H Requirements for draft TSO cost calculation determination
  • In preparing a draft TSO cost calculation determination of the matters referred to in section 94G(c), the Commission must consider the steps taken (if any) by the TSO provider to remedy any non-compliance by the TSO provider with the TSO instrument between the date the TSO provider was notified of the non-compliance under section 93(b) and the date that is 15 working days before public notice is given under section 94F(1)(b).

    Section 94H: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94I Conferences on draft TSO cost calculation determination
  • The Commission may—

    • (a) hold conferences in relation to a draft TSO cost calculation determination; and

    • (b) invite to those conferences any person who has a material interest in the determination.

    Section 94I: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94J Commission to prepare final TSO cost calculation determination
  • (1) The Commission must—

    • (a) prepare a final TSO cost calculation determination; and

    • (b) give public notice of that final determination; and

    • (c) give a copy of that final determination to the Minister, all liable persons, and the TSO providers in relation to the TSO instrument.

    (2) The Commission must make reasonable efforts to do the things referred to in subsection (1) not later than 40 working days after the closing date for submissions specified in accordance with section 94F(1)(c).

    (3) This section is subject to sections 94 and 94C.

    Section 94J: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94K Matters to be included in final TSO cost calculation determination
  • (1) A final TSO cost calculation determination must include,—

    • (a) if the TSO instrument does not contain a specified amount, the net cost to the TSO provider of complying with the TSO instrument during the financial year and all material information that—

      • (i) relates to the calculation of the net cost; and

      • (ii) would not, in the opinion of the Commission, be likely to unreasonably prejudice the commercial position of the TSO provider; and

    • (ab) if the TSO instrument does not contain a specified amount and is a deemed TSO instrument, the net revenue for the financial year of all providers under deemed TSO instruments, excluding the provider whose net cost is set out under paragraph (a), and all material information that—

      • (i) relates to the calculation of the net revenue; and

      • (ii) would not, in the opinion of the Commission, be likely to unreasonably prejudice the commercial position of any TSO provider; and

    • (b) if the TSO instrument contains a specified amount, the dollar amount of the specified amount and all material information that—

      • (i) relates to the calculation of that amount; and

      • (ii) would not, in the opinion of the Commission, be likely to unreasonably prejudice the commercial position of the TSO provider; and

    • (c) the amount (if any) by which the total amount that the TSO provider would receive from the Crown in relation to the TSO instrument must be reduced because the TSO provider has not complied with the TSO instrument; and

    • (d) the amount payable by the Crown to the TSO provider in relation to the TSO instrument in respect of the financial year calculated,—

      • (i) in the case of a TSO instrument that does not contain a specified amount and is not a deemed instrument, by subtracting the amount of the reduction (if any) referred to in paragraph (c) from the net cost referred to in paragraph (a); and

      • (ia) in the case of a TSO instrument that does not contain a specified amount and is a deemed TSO instrument, by subtracting the amount of the reduction (if any) referred to in paragraph (c) and the net revenue referred to in paragraph (ab) from the net cost referred to in paragraph (a); and

      • (ii) in the case of a TSO instrument that contains a specified amount, by subtracting the amount of the reduction (if any) referred to in paragraph (c) from the specified amount referred to in paragraph (b); and

    • (e) the amount payable by the Crown to the TSO provider in relation to the TSO instrument for the loss of use of the amount referred to in paragraph (d), calculated at the 90-day bank bill rate (as at the date of the final determination) for the period commencing from the end of the financial year and ending with the date of the final TSO cost calculation determination; and

    • (f) the methodology used by the Commission in preparing the determination; and

    • (g) the reasons for the determination.

    (2) To avoid doubt, if the calculation under subsection (1)(a) or (b) results in a figure that is zero or less, the amount for the purposes of subsection (1)(d) and (e), and that must be included in the determination, is zero.

    Section 94K: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 94K(1)(ab): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 57(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 94K(1)(d)(i): amended, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 57(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 94K(1)(d)(ia): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 57(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

94L Payment by the Crown to TSO provider
  • (1) The Crown must pay to the TSO provider, not later than 30 working days after the date that the final TSO cost calculation determination is publicly notified,—

    • (a) the amount set out in the final TSO cost calculation determination in accordance with section 94K(1)(d); and

    • (b) the amount set out in the final TSO cost calculation determination in accordance with section 94K(1)(e).

    (2) If the Crown does not pay the total of the amounts referred to in subsection (1) on or before the due date, the Crown must pay the TSO provider interest on the unpaid amount at the 90-day bank bill rate (as at 31 working days after the date on which the final cost calculation determination is publicly notified) plus 5% for the period from the time the amount was due until the time at which it is paid.

    Section 94L: inserted, on 1 July 2011, by section 15 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 3Remedies and miscellaneous

Remedies

95 Application of sections 96 to 98 to TSO instruments that are company constitutions
  • [Repealed]

    Section 95: repealed, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 58 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

96 Power of court to grant relief in respect of TSO instrument
  • (1) If, on the application of the Crown, it appears to the High Court that a TSO provider intends to engage, or is engaging, or has engaged, in conduct that constitutes, or would constitute, a breach of the terms of a TSO instrument, the court may make any orders on any terms and conditions that it thinks appropriate, including, without limitation,—

    • (a) an order to—

      • (i) restrain the TSO provider from engaging in conduct that constitutes, or would constitute, the breach:

      • (ii) require the TSO provider to do a particular act or thing:

      • (iii) require the TSO provider to comply with the terms of the TSO instrument:

    • (b) an interim order.

    (2) In any proceeding under this section, the Crown, on the order of the court, may obtain discovery and administer interrogatories.

    (3) The court may at any time rescind or vary an order made under this section.

    Section 96(1): amended, on 22 December 2006, by section 47 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 96(1)(a)(i): amended, on 22 December 2006, by section 47 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 96(1)(a)(ii): amended, on 22 December 2006, by section 47 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 96(1)(a)(iii): amended, on 22 December 2006, by section 47 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

97 Court must take public interest into account
  • In deciding whether to make an order under section 96, the court must take into account whether or not it is in the public interest that the order be made.

98 Certain matters not to prevent making of order under section 96
  • None of the following prevents the court from making an order under section 96:

    • (a) the fact that any benefit or advantage that the TSO provider obtains, or is likely to obtain, in connection with the TSO instrument is provided by a person other than the Crown:

    • (b) the fact that services are provided under the TSO instrument to a person other than, or in addition to, the Crown.

    Section 98(a): amended, on 22 December 2006, by section 48 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

99 Amounts identifying particular TSOs in invoices not permitted
  • [Repealed]

    Section 99: repealed, on 1 July 2011, by section 16 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Miscellaneous

100 Right of appeal to High Court
  • (1) The following persons and (as applicable) the Crown may appeal to the High Court against the following matters:

    • (a) a liable person, against a determination of the Commission, in relation to that person, of the matter referred to in section 88(a):

    • (c) a liable person, TSO provider, or the Crown, against a determination of the Commission in respect of a matter referred to in section 94K(1)(a) to (g).

    (2) An appeal under subsection (1) may be on a question of law only.

    (3) If an appeal or judicial review proceedings are commenced about a liability allocation determination, TSO cost calculation determination, or direction under section 94A(1), the determination or direction continues to have effect and is enforceable as if the proceedings had not been commenced until the proceedings are finally disposed of.

    (4) To avoid doubt, the obligations to pay money imposed by sections 89 and 94L continue to have effect and are enforceable despite any appeal or judicial review proceedings about a determination that relates to those payments, until the proceedings are finally disposed of.

    (5) TSO provider, in subsection (1), means the TSO provider under the TSO instrument to which the direction or determination relates.

    Section 100: substituted, on 1 July 2011, by section 17 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

100A Procedure for determinations
  • For a determination made under this Part, the Commission—

    • (a) is not bound by technicalities, legal forms, or rules of evidence:

    • (b) may inform itself of any matter relevant to the determination in any way it thinks appropriate:

    • (c) must consider all submissions made in relation to the determination and all information and opinions presented or expressed at any conference in relation to the determination.

    Section 100A: inserted, on 22 December 2006, by section 50 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

100B Commission must include information about deemed TSO instrument in TSO cost calculation determinations
  • (1) The Commission must include the information specified in subsection (2) in a—

    • (a) draft TSO cost calculation determination under section 94F in relation to a deemed TSO instrument:

    • (b) final TSO cost calculation determination under section 94J in relation to a deemed TSO instrument.

    (2) The information referred to in subsection (1) is as follows:

    • (a) the name, location, and limits of each geographical area within which the TSO provider supplies the service under the deemed TSO instrument; and

    • (b) the number of subscriber lines for that service in each geographical area; and

    • (c) the number of those subscriber lines for which—

      • (i) the revenue attributed by the Commission is greater than, or equal to, the respective cost attributed; and

      • (ii) the revenue attributed by the Commission is less than the respective cost attributed; and

    • (d) the net cost of the deemed TSO instrument in each geographical area; and

    • (e) any related information that is necessary to assist in understanding the information specified in paragraphs (a) to (d).

    (3) The geographical areas referred to in subsection (2) must correspond to the areas that the Commission has identified in assessing, for the purpose of calculating the TSO net cost, the commercial viability of supplying the service to end-users.

    Section 100B: inserted, on 22 December 2006, by section 50 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 100B(1)(a): amended, on 1 July 2011, by section 18(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 100B(1)(b): amended, on 1 July 2011, by section 18(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 100B(3): amended, on 1 July 2011, by section 18(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

100BA Commission must include information about spending of TSO charges paid in relation to deemed TSO instrument
  • (1) The Commission must include the information specified in subsection (2) in—

    • (a) a draft TSO cost calculation determination under section 94F, in relation to a deemed TSO instrument; and

    • (b) a final TSO cost calculation determination under section 94J, in relation to a deemed TSO instrument.

    (2) The information referred to in subsection (1) is the amount of the total TSO charges most recently received by the TSO provider (if any), that the TSO provider has spent on each of the following, and details of that expenditure:

    • (a) TSO-related infrastructure:

    • (b) TSO-related operational costs:

    • (c) any other items.

    (3) For the purpose of enabling the Commission to comply with subsection (1), the Commission may require the TSO provider to prepare and provide information about the spending of the TSO charges most recently received by the TSO provider.

    (4) The TSO provider must prepare and provide any information required under subsection (3) in accordance with the Commission's requirements.

    Section 100BA: inserted, on 1 July 2011, by section 19 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

100C Duties of Commission in complying with sections 100B and 100BA
  • (1) In complying with section 100B, the Commission must ensure that—

    • (a) the information to be included in a draft or final TSO cost calculation determination is at its lowest level of aggregation (as determined by the Commission); and

    • (b) satisfactory provision exists to protect the confidentiality of any information that—

      • (i) the person who supplied it has advised is confidential; or

      • (ii) may reasonably be regarded as confidential; and

    • (c) the inclusion of that information does not constitute an action that is an interference with the privacy of an individual under section 66 of the Privacy Act 1993.

    (2) However, if the Commission considers that compliance with subsection (1)(a) will, or is likely to, prejudice compliance with subsection (1)(b) or (c), the Commission—

    • (a) may aggregate the information before it is included under section 100B; and

    • (b) may do so in any manner that it thinks fit.

    (3) In complying with section 100BA, the Commission must ensure that satisfactory provision exists to protect the confidentiality of any information that may reasonably be regarded as confidential or commercially sensitive.

    Section 100C: inserted, on 22 December 2006, by section 50 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 100C heading: amended, on 1 July 2011, by section 20(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 100C(3): added, on 1 July 2011, by section 20(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

101 Regulations
  • (1) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations that—

    • (a) determine the amount of the minimum telecommunications revenue for the purposes of section 80:

    • (b) prescribe the information that must be provided to the Commission under section 83(1)(a):

    • (e) provide for any methods for all or any of the following:

      • (i) preparing a draft determination of the amount of qualified revenue referred to in section 85(1)(a):

      • (ii) determining the amount of qualified revenue referred to in section 88(a):

      • (iv) preparing a draft determination of the net cost referred to in section 94G(a):

    (2) The Minister must not make a recommendation under subsection (1)(b) to (e) unless—

    • (a) the Commission has consulted every liable person; and

    • (b) the Commission has recommended that the regulations be made.

    (3) The Minister must not recommend the making of regulations under subsection (1)(a) unless the Minister is satisfied that, if the regulations were made, the minimum telecommunications revenue under those regulations would not exceed the maximum telecommunications revenue threshold.

    (4) In this section, maximum telecommunications revenue threshold means the amount calculated in accordance with the following formula:

     a ×c  
    b

    where—

    a
    is the CPI index number for the last quarter before the Minister's recommendation would be made
    b
    is the CPI index number for the last quarter before the date of commencement of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
    c
    is $10 million.

    Section 101: substituted, on 1 July 2011, by section 21 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 101(1)(da): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 59(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 101(1)(e)(iiia): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 59(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

101A Review of local service TSO arrangements
  • (1) The chief executive of the Ministry must,—

    • (a) at the start of 2013, commence a review of the deemed TSO instruments and the provisions of this Act that implement those deeds (including the provisions that relate to funding) (collectively, the deemed TSO arrangements), including consideration of the following:

      • (i) the operation of the deemed TSO arrangements:

      • (ii) changes in the telecommunications sector that have arisen from investments in, and the roll-out of, new and enhanced telecommunications infrastructure and facilities and the impact of those changes on the deemed TSO arrangements:

      • (iii) the continued need for, and relevance of, the deemed TSO arrangements:

      • (iv) the practicality of adopting universal, rather than provider-specific, arrangements for provision of the services and achievement of the outcomes covered by the deemed TSO arrangements:

      • (v) the impact of the funding arrangements for deemed TSO instruments and the calculation of costs in relation to deemed TSO instruments on TSO providers, market competition, and the development generally of the telecommunications industry:

      • (vi) alternative arrangements for achieving the purpose set out in section 70(1), including—

        • (A) the potential for adopting a contestable TSO model for deemed TSO arrangements and the costs and benefits of those alternatives in comparison with the deemed TSO arrangements; and

        • (B) alternative approaches for the funding of deemed TSO instruments and the calculation of costs in relation to deemed TSO instruments, including the costs and benefits of those alternative approaches in comparison with the deemed TSO funding arrangements:

      • (vii) related regulatory issues; and

    • (b) report to the Minister on its findings not later than the end of 2013.

    (2) In carrying out the review, the chief executive of the Ministry must consult with interested parties, including the Commission, industry participants, consumers, and Māori.

    (3) In conducting the review and reporting to the Minister, the chief executive of the Ministry must take the following into account:

    • (a) the long-term interests of end-users of telecommunications services:

    • (b) the long-term interests of those end-users in respect of whom the provision of services covered by the deemed TSO arrangements is commercially non-viable:

    • (c) the legitimate business interests of TSO providers:

    • (d) the ability for providers of TSO services to receive a reasonable return on the incremental capital employed in providing the services required under deemed TSO instruments:

    • (e) the impact on the incentives and capabilities of TSO providers and other telecommunications service providers to invest in new and improved telecommunications facilities and services:

    • (f) the effects on competition in telecommunications services markets in New Zealand.

    Section 101A: inserted, on 1 July 2011, by section 22 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Part 4
Networks

Subpart 1Network operators and networks generally

Declarations of network operator status

102 Persons declared to be network operators
  • (1) The purpose of this section and sections 103 to 105 is to facilitate entry into, and competition in, telecommunications markets and broadcasting markets.

    (2) A person may apply to the Minister to be declared a network operator for the purposes of this Act or any provisions of this Act.

    (3) For the purposes of this section and sections 103 to 105, any 2 or more bodies corporate must be treated as 1 person if—

    • (a) one of them is a body corporate of which the others are subsidiaries; or

    • (b) all of them are subsidiaries of the same body corporate; or

    • (c) all of them are associates of each other; or

    • (d) one of them owns or controls shares that in the aggregate carry the right to exercise or control the exercise of 20% or more of the voting power at meetings of the others; or

    • (e) a third person owns or controls shares in each of them that carry the right to exercise or control the exercise of 20% or more of the voting power at meetings of each of them.

    (4) For the purposes of subsection (3)(c), a body corporate is an associate of another if that body corporate is able, whether directly or indirectly, to exert a substantial degree of influence over the activities of the other.

    (5) A body corporate is not able to exert a substantial degree of influence over another body corporate for the purposes of subsection (4) just because—

    • (a) those bodies corporate are in competition in the same market; or

    • (b) one of them supplies goods or services to the other.

    Compare: 1987 No 116 ss 2(2), 2A(1)

    Section 102(1): amended, on 17 May 2005, by section 4 of the Telecommunications Amendment Act 2005 (2005 No 70).

    Section 102(3): substituted, on 22 December 2006, by section 52 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 102(4): added, on 22 December 2006, by section 52 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 102(5): added, on 22 December 2006, by section 52 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

103 Ministerial requirements for declaration
  • The Minister must declare an applicant to be a network operator for the purposes of this Act or any provisions of this Act if the Minister is satisfied that a declaration is necessary to enable the applicant to commence or carry on a business providing—

    • (a) facilities for telecommunication between 10 or more other persons that enable at least 10 of those persons to communicate with each other; or

    • (b) facilities for broadcasting to 500 or more other persons that enable programmes to be transmitted along a line or lines to each of those persons.

    Compare: 1987 No 116 s 2A(2)

104 When declaration must be revoked
  • The Minister must revoke a declaration if the Minister is satisfied that a network operator has ceased to provide the facilities listed in section 103.

    Compare: 1987 No 116 s 2A(4)

105 Declaration made or revoked by notice in Gazette
  • (1) A declaration is made by notice in the Gazette, except that Chorus and Telecom are declared to be network operators by this Act.

    (1A) A declaration may be revoked by notice in the Gazette (including the declarations relating to Chorus and Telecom).

    (2) A notice in the Gazette under this section is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

    Compare: 1987 No 116 s 2A(3), (5)

    Section 105(1): substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 63(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 105(1A): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 63(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 105(2): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

Connection to network

106 Operator must agree to connection to network
  • (1) Except as provided in Part 2, a person may only connect equipment to a network, or to anything connected to a network, that is owned or operated by an operator who has agreed to the connection.

    (2) Nothing in subsection (1) limits the Commerce Act 1986.

    (3) Subsection (1) is subject to sections 107 and 108.

    (4) In subsection (1) and sections 107 and 108, operator means—

    • (a) a network operator; or

    • (b) any other person who provides a telecommunications service by means of a PTN that is operated by the person.

    Compare: 1987 No 116 s 6(1), (2)

    Section 106(4)(b): amended, on 1 July 2011, by section 26(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

107 When operator must not agree to connection to network
  • (1) An operator must not agree to the connection of a telephone analyser to a network that is owned or operated by an operator unless the connection is for 1 or more of the following purposes:

    • (a) to enable a person to whom the operator provides telecommunications services to obtain call associated data that relates to telecommunications between the person and other persons:

    • (b) to maintain the network:

    (2) In subsection (1), telephone analyser and call associated data have the same meanings as in section 2(1) of the Telecommunications (Residual Provisions) Act 1987.

    Compare: 1987 No 116 s 6(2A)

108 When operator must not refuse to agree to connection to network
  • (1) An operator must not refuse to agree to the connection of any equipment to a network, or to anything connected to a network, that is owned or operated by the operator if the only reason for the refusal is that the operator considers that the equipment does not conform with the operator's standards for connection of that equipment.

    (2) Subsection (1) applies only if—

    • (a) the network operator has set either a standard that applies, or standards that apply, (applicable standards) to the equipment and its connection to the network; and

    • (b) those applicable standards have been published in accordance with any regulations made under section 109; and

    • (c) a relevant competent conformity assessment body has, in accordance with any regulations made under section 109, determined that the particular equipment complies with those published applicable standards.

    (3) In subsection (2) and section 109, relevant competent conformity assessment body means a body that is recognised, in accordance with any procedure set out in any regulations made under section 109, as being responsible for assessing, in accordance with those regulations, whether or not particular equipment complies with applicable standards that are published.

109 Regulations
  • The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:

    • (a) providing for procedures and requirements relating to the publication of applicable standards under section 108(2)(b):

    • (b) providing for procedures and requirements that relate to recognising a body as a competent conformity assessment body for the purposes of assessing compliance with applicable standards under section 108(2)(c):

    • (c) providing for procedures and requirements that relate to assessing compliance with applicable standards under section 108(2)(c):

    • (d) providing for any other matters contemplated by section 108, necessary for its administration, or necessary for giving it full effect.

110 Actions for damages for contravention of section 106
  • (1) Every person is liable for damages who—

    • (b) induces by threats, promises, or otherwise, the contravention of that section:

    • (c) is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention of that section.

    (2) An action under subsection (1) may be commenced at any time within 3 years from the time when the cause of action arose.

    Compare: 1987 No 116 s 20D

111 Injunctions may be granted by High Court for contravention of section 106
  • (1) The High Court may, on the application of a network operator, grant an injunction restraining a person from engaging in conduct that constitutes, or would constitute, any of the following:

    • (a) a contravention of, or an attempt to contravene, section 106:

    • (b) inducing, or attempting to induce, any other person, whether by threats, promises, or otherwise, to contravene that section:

    • (c) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of that section.

    (2) The High Court may, at any time, rescind or vary an injunction granted under this section.

    Compare: 1987 No 116 s 20C

Information requirement

  • Heading: inserted, on 22 December 2006, by section 53 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

111A Information about interconnection arrangements
  • (1) A major supplier must make publicly available a copy of—

    • (a) the procedures that apply to interconnection with a PTN owned or operated by that supplier; and

    • (b) all the applicable terms and conditions of supply for interconnection with that PTN.

    (2) In this section, major supplier

    • (a) means Telecom; and

    • (b) includes a person who is declared by the Governor-General, by Order in Council made on the recommendation of the Minister, to be a major supplier for the purposes of this section.

    (3) The Minister must not make a recommendation under subsection (2)(b) unless the Minister is satisfied that the proposed order to which the recommendation relates is necessary to facilitate New Zealand's compliance with its international obligations.

    Section 111A: inserted, on 22 December 2006, by section 53 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 111A(1)(a): amended, on 1 July 2011, by section 26(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 111A(1)(b): amended, on 1 July 2011, by section 26(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Misuse of network

112 Misuse of telephone device
  • (1) Every person commits an offence who, in using a telephone device, uses profane, indecent, or obscene language, or makes a suggestion of a profane, indecent, or obscene nature, with the intention of offending the recipient.

    (2) Every person commits an offence who—

    • (a) uses, or causes or permits to be used, any telephone device for the purpose of disturbing, annoying, or irritating any person, whether by calling up without speech or by wantonly or maliciously transmitting communications or sounds, with the intention of offending the recipient; or

    • (b) in using a telecommunications device, knowingly gives any fictitious order, instruction, or message.

    (3) Every person who commits an offence against subsection (1) or subsection (2) is liable on conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000.

    Compare: 1987 No 116 s 8

    Section 112(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

113 Indecent telephone calls for pecuniary gain
  • (1) Every person commits an offence against this Act who, in using a telephone device, uses or causes to be used indecent or obscene language, or makes or causes to be made a suggestion of an indecent or obscene nature, for the purpose of obtaining commercial gain.

    (2) Every person who commits an offence against subsection (1) is liable, on conviction,—

    • (a) in the case of an individual, to a fine not exceeding $2,000:

    • (b) in the case of a body corporate, to a fine not exceeding $5,000.

    Compare: 1987 No 116 s 8A

    Section 113(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

114 Interception of telecommunications for authorised purposes
  • [Repealed]

    Section 114: repealed, on 1 October 2003, by section 35 of the Crimes Amendment Act 2003 (2003 No 39).

115 Offence to use or disclose certain information for unauthorised purposes
  • [Repealed]

    Section 115: repealed, on 1 October 2003, by section 35 of the Crimes Amendment Act 2003 (2003 No 39).

Evidence

116 Computer records
  • (1) A document certified by an employee of a network operator to be a computer record of a telecommunication and to have been produced in the ordinary course of producing those computer records is prima facie evidence—

    • (a) that the telecommunication was made; and

    • (b) of the originating number, the number called, the date and time of the telecommunication, and the duration and cost of the telecommunication, to the extent that those items are contained in the computer record.

    (2) For the purposes of this section, computer record includes a computer printout or any other document produced by a device by means of which information is recorded or stored.

    Compare: 1987 No 116 s 9(2), (3)

Subpart 2Maintenance of networks

Preliminary

117 Meaning of maintenance
  • (1) In this subpart, maintenance includes—

    • (a) any repairs and any other activities for the purpose of maintaining, or that have the effect of maintaining, lines or works; and

    • (b) the carrying out of any replacement or upgrade of lines or works as long as the land will not be injuriously affected as a result of the replacement or upgrade.

    (2) Subsection (1) does not have the effect of making an activity of a kind referred to in that subsection a permitted use under a district plan or regional plan under the Resource Management Act 1991 if the activity would not have otherwise been a permitted use.

118 Meaning of evidence of authority
  • In this subpart, evidence of authority, in relation to an officer, employee, or agent of a network operator, means a written authority issued to that officer, employee, or agent by the network operator that states—

    • (a) the full name of the officer, employee, or agent to whom it is issued; and

    • (b) the name of the network operator; and

    • (c) the date on which the written authority is issued; and

    • (d) the date (if any) on which the written authority expires; and

    • (e) particulars of the powers of the network operator that the officer, employee, or agent is authorised to exercise; and

    • (f) particulars of conditions (if any) imposed on the officer, employee, or agent by the network operator.

118A Notices under this subpart
  • (1) Any notice that is required to be given to any person under this subpart must be in writing.

    (2) To avoid doubt, subsection (1) does not apply to notices given in any proceedings in a court.

    Section 118A: inserted, on 1 July 2011, by section 26(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

119 Criteria for setting reasonable conditions
  • (1) In setting, varying, or revoking reasonable conditions under section 135(2) or section 142(2)(b), the local authority or other person who has jurisdiction over the road concerned may consider all or any of the following matters:

    • (a) the safe and efficient flow of traffic (whether pedestrian or vehicular):

    • (b) the health and safety of any person who is, or class of persons who are, likely to be directly affected by the work on the road:

    • (c) the need to lessen the damage that is likely to be caused to property (including structural integrity of the roads) as a result of work on the road:

    • (d) the compensation that may be payable under section 154 for property that is likely to be damaged as a result of work on the road:

    • (e) the need to lessen disruption to the local community (including businesses):

    • (f) the co-ordination of installation of other networks:

    • (g) the co-ordination with road construction work by the local authority or other person who has jurisdiction over that road:

    • (h) the need of a network operator to establish a telecommunications network in a timely manner.

    (2) Nothing in subsection (1) limits a local authority's or other person's ability to impose reasonable conditions under section 135(2) or section 142(2)(b).

    (3) However, a condition requiring a network operator to increase amenity values (rather than to merely maintain them) must not be imposed unless the work to be done is in an area identified in a district plan as an area in relation to which, under the district plan, there are particular considerations, or rules or requirements, relating to amenity values.

    (4) If the cost to the network operator of complying with a condition referred to in subsection (3) is higher than it would have been if there were not a requirement to increase amenity values, then the person imposing the condition must pay that increase in cost.

    Section 119(3): added, on 6 August 2010, by section 5 of the Infrastructure (Amendments Relating to Utilities Access) Act 2010 (2010 No 99).

    Section 119(4): added, on 6 August 2010, by section 5 of the Infrastructure (Amendments Relating to Utilities Access) Act 2010 (2010 No 99).

Rights of entry to land in respect of lines

120 Application to District Court
  • (1) If a network operator wishes to enter land for the purpose of constructing, erecting, laying, or maintaining any line, the network operator may apply to a District Court for an order under section 121.

    (2) The network operator must give the owner and the occupier of the land at least 10 working days' notice of the operator's intention to apply to the District Court under subsection (1).

    Compare: 1987 No 116 s 11(1)

121 Court order
  • (1) If the District Court is satisfied that the requirements set out in subsection (2) have been met, it may make an order authorising the network operator to—

    • (a) enter the land at reasonable times, with or without any person who is, or anything that is, reasonably necessary for the construction, erection, laying, or maintenance of a line:

    • (b) perform work that is reasonably necessary to construct, erect, lay, or maintain a line.

    (2) The requirements that must be met are as follows:

    • (a) the construction, erection, laying, or maintenance of the line is necessary for the purposes of telecommunications:

    • (b) the network operator has taken all reasonable steps to negotiate an agreement for entry:

    • (c) in relation to the construction, erection, or laying of a line, no practical alternative route exists.

    Compare: 1987 No 116 s 11(2)

122 Contents of court order
  • Every order made under section 121 must specify—

    • (a) how and when entry may be made; and

    • (b) the specific powers intended to be exercised; and

    • (c) any other conditions (including conditions relating to the payment of compensation) that the District Court thinks fit to impose.

    Compare: 1987 No 116 s 11(3)

123 Service of order
  • Before exercising any powers authorised by an order made under section 121, the network operator must serve the order on the owner and the occupier of the land to which the order relates.

    Compare: 1987 No 116 s 11(4)

124 Production of order
  • Every officer, employee, or agent of a network operator acting under an order made under section 121 must produce evidence of his or her authority and identity—

    • (a) on initial entry; and

    • (b) after the initial entry, on request.

    Compare: 1987 No 116 s 11(5)

Rights of entry to land in respect of existing works and existing lines

125 Rights of entry to land
  • Subject to section 126, a network operator may—

    • (a) enter land for the purpose of gaining access to any existing works or existing lines owned by the operator; and

    • (b) perform any act or operation necessary for the purpose of inspecting, maintaining, or repairing those works or lines.

    Compare: 1987 No 116 s 12(1)

126 Conditions of entry to land
  • (1) The power to enter land conferred by section 125 is subject to the following conditions:

    • (a) entry to the land must only be made by an officer, employee, or agent of the network operator authorised by it in writing:

    • (b) reasonable notice of the intention to enter must be given to the owner and to the occupier of the land:

    • (c) entry must be made at reasonable times:

    • (d) the person entering must produce evidence of his or her authority and identity—

      • (i) on initial entry; and

      • (ii) after the initial entry, on request.

    (2) The conditions in subsection (1) do not apply if entry on the land is—

    • (a) necessary in circumstances of probable danger to life or property; or

    • (b) immediately necessary to maintain the continuity or safety of the supply of telecommunications.

    (3) If subsection (2) applies, the network operator must, as soon as practicable after entry on the land, give notice to the owner and to the occupier of the land of the fact of the entry on the land and of what was done.

    Compare: 1987 No 116 s 12(3)

127 Evidentiary presumption
  • A certificate under the seal of a network operator containing a statement that a specified instrument, machinery, engine, structure, or other work was erected or constructed before 1 January 1988 under the authority of the Post Office Act 1959 (or any Act repealed by that Act), or that a line was constructed before 1 April 1989 under the authority of this Act, is admissible in evidence in any proceedings and, in the absence of proof to the contrary, constitutes proof of that statement.

    Compare: 1987 No 116 s 12(2)

Interference with lines

128 Request for removal or trimming of trees
  • If a tree, shrub, or plant on any land or road interferes with, or is likely to interfere with, a line, the network operator who uses the line may request the owner or occupier of the land, or local authority or other person who has control of the road, to remove or trim the tree, shrub, or plant.

    Compare: 1987 No 116 s 13(1)

129 Application to District Court
  • (1) If an owner, occupier, a local authority, or other person fails to comply with a request made under section 128, the network operator who uses the line may apply to the District Court for an order authorising the network operator to remove or trim the tree, shrub, or plant in respect of which the request was made.

    (2) The network operator must give the owner, occupier, local authority, or other person who fails to comply with the request at least 10 working days' notice of the operator's intention to apply to the District Court under subsection (1).

    Compare: 1987 No 116 s 13(2)

130 Court order
  • On being satisfied that a tree, shrub, or plant on land interferes with, or is likely to interfere with, a line, the District Court may make an order on any terms and conditions (including those relating to notice and time of removal or trimming) that the court thinks fit.

    Compare: 1987 No 116 s 13(2)

131 Costs of removal or trimming of trees
  • If a network operator removes or trims a tree, shrub, or plant on any land or road under the authority of an order made under section 130, the owner, occupier, local authority, or other person to whom notice of the application under section 129(2) was given is liable for the reasonable cost of the work of the network operator.

    Compare: 1987 No 116 s 13(3)

132 Removal of trees, etc, in emergency
  • (1) If a tree, shrub, or plant on any land or road is, or is likely to, cause imminent danger to, or serious interference with, a line, the network operator may—

    • (a) enter the land or road where the tree, shrub, or plant is rooted or overhangs; and

    • (b) do work in respect of the tree, shrub, or plant that is necessary to remove the danger or serious interference, or likely danger or serious interference.

    (2) The network operator must, if it is possible in the circumstances, notify the occupier of the land, or the local authority or other person who has control of the road, as the case may be, of the operator's intention to enter the land or road and carry out work under subsection (1).

    (3) A network operator who is unable to give notice to the relevant persons under subsection (2) must, as soon as practicable after entry on the land, give notice to the relevant persons of the fact of the entry on the land and of what was done.

    Compare: 1987 No 116 s 14(1)

133 Production of authority
  • Every officer, employee, or agent of a network operator who enters land or a road under section 132 must—

    • (a) carry evidence of his or her authority and identity, which must be produced on request; or

    • (b) work under the immediate control of a person who holds evidence of that person's authority and identity, which must be produced if requested.

    Compare: 1987 No 116 s 14(2)

134 Costs of removal of trees, etc, in emergency
  • If a network operator removes or trims a tree, shrub, or plant on any land or road under section 132, the occupier of the land, or the local authority or other person who has control of the road, as the case may be, is liable for the reasonable cost of the work of the network operator.

    Compare: 1987 No 116 s 14(3)

Lines or wireless works on roads

  • Heading: amended, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

135 Construction or repair of lines or wireless works on roads
  • (1) Except as provided in subsection (2), a network operator may—

    • (a) construct, place, and maintain lines or wireless works in, on, along, over, across, or under any road; and

    • (b) for any of those purposes, open or break up any road, and alter the position of any pipe (not being a main) for the supply of water or gas; and

    • (c) alter, repair, or remove those lines or wireless works or any part of those lines or wireless works.

    (2) A network operator must exercise the powers contained in subsection (1) in accordance with any reasonable conditions that the local authority or other person who has jurisdiction over that road requires.

    Compare: 1987 No 116 s 15

    Section 135 heading: amended, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 135(1)(a): amended, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 135(1)(c): amended, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

136 Notice requirement
  • (1) Except as provided in section 139, before a network operator proceeds to open or break up any road, the network operator must give notice of the intention to carry out the work to—

    • (a) the local authority or other person who has jurisdiction over the road; and

    • (b) any utility operator (as defined in section 4 of the Utilities Access Act 2010) whose pipes, lines, or other structures will or are likely to be affected by the work.

    (2) Every notice must specify the location of the proposed work, the nature of the work to be carried out, and the reasons for it.

    Compare: 1987 No 116 s 15A(1), (2)

    Section 136(1): substituted, on 6 August 2010, by section 6 of the Infrastructure (Amendments Relating to Utilities Access) Act 2010 (2010 No 99).

137 Network operator to be notified of conditions
  • Not later than 15 working days after the receipt of the written notice of the intention to carry out work, the local authority or other person who has jurisdiction over the road must notify the network operator in writing of any conditions imposed under section 135(2).

    Compare: 1987 No 116 s 15A(3)

    Section 137: amended, on 6 August 2010, by section 7 of the Infrastructure (Amendments Relating to Utilities Access) Act 2010 (2010 No 99).

138 Failure to notify conditions
  • If a local authority or other person who has jurisdiction over the road fails to notify the network operator of the conditions imposed under section 135(2) within the 15-working day period referred to in section 137, those conditions may not be imposed, and the network operator may commence work.

    Compare: 1987 No 116 s 15A(4)

    Section 138: amended, on 6 August 2010, by section 8 of the Infrastructure (Amendments Relating to Utilities Access) Act 2010 (2010 No 99).

139 Urgency
  • If work is urgent and necessary because of any defective equipment, or other emergency, the network operator—

    • (a) is excused from complying with the requirements of section 136(1) before commencing the work; but

    • (b) must give the information required by section 136(2) as soon as practicable after commencing the work.

    Compare: 1987 No 116 s 15A(5)

140 Offence to not comply with any of sections 135, 136, and 139
  • (1) A network operator who fails to comply with any of sections 135, 136, and 139 commits an offence.

    (2) A network operator who commits an offence against subsection (1) is liable on conviction to a fine not exceeding $10,000.

    (3) In addition to any fine imposed under subsection (2), a court may make any order relating to compensation that it thinks fit.

    Compare: 1987 No 116 s 15B

    Section 140(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

141 Appeals by network operators to District Court
  • (1) A network operator may appeal to a District Court against all or any of the conditions imposed under section 135(2) by the local authority or other person who has jurisdiction over the road.

    (2) An appeal must be made not later than 45 working days after the date of notification of the conditions imposed or within any further time that the District Court may allow.

    (3) In its determination of any appeal, a District Court may confirm, modify, or cancel any or all of the conditions imposed.

    (4) The decision of a District Court in the determination of an appeal under this section is final.

    Compare: 1987 No 116 ss 15C, 15D

Telephone cabinets, etc, on roads

142 Construction, etc, of telephone cabinets or other similar appliances
  • (1) Subject to subsection (2), a network operator may construct, place, and maintain public telephone cabinets, distribution cabinets, or any other similar appliances on a road.

    (2) A network operator must—

    • (a) give notice of its intention to place a cabinet or other appliance on the road to—

      • (i) the local authority or other person who has jurisdiction over the road; and

      • (ii) any utility operator (as defined in section 4 of the Utilities Access Act 2010) whose pipes, lines, or other structures will or are likely to be affected by the work; and

    • (b) comply with any reasonable conditions that are imposed by the local authority or other person who has jurisdiction over that road on which the cabinet or appliance is to be placed; and

    • (c) not intentionally place the cabinet or appliance on the road so that it interferes with the ordinary traffic.

    (3) Every notice under subsection (2)(a) must specify where the cabinet or appliance is to be placed on the road and the reasons for it.

    Section 142(2)(a): substituted, on 6 August 2010, by section 9 of the Infrastructure (Amendments Relating to Utilities Access) Act 2010 (2010 No 99).

143 Network operator to be notified of conditions
  • Not later than 15 working days after the receipt of the written notice of the network operator's intention to place a cabinet or appliance on a road under section 142, the local authority or other person who has jurisdiction over that road must notify the network operator in writing of any conditions imposed under section 142(2)(b).

    Section 143: amended, on 6 August 2010, by section 10 of the Infrastructure (Amendments Relating to Utilities Access) Act 2010 (2010 No 99).

144 Failure to notify conditions
  • If a local authority or other person who has jurisdiction over a road fails to notify the network operator of the conditions imposed under section 142(2)(b) within the 15-working day period referred to in section 143, those conditions may not be imposed and the network operator may commence work.

    Section 144: amended, on 6 August 2010, by section 11 of the Infrastructure (Amendments Relating to Utilities Access) Act 2010 (2010 No 99).

145 Urgency
  • If the telephone cabinet or appliance must be placed on a road urgently and it is necessary because of any defective equipment or other emergency, the network operator—

    • (a) is excused from complying with the requirements of section 142(3) before commencing the work; but

    • (b) must give the information required by section 142(3) as soon as practicable after placing the telephone cabinet or appliance on that road.

146 Offence not to comply with section 142 or section 145
  • (1) A network operator who fails to comply with section 142 or section 145 commits an offence.

    (2) A network operator who commits an offence against subsection (1) is liable on conviction to a fine not exceeding $10,000.

    (3) In addition to any fine imposed under subsection (2), a court may make any order relating to compensation that it thinks fit.

    Section 146(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

147 Appeals by network operators to District Court
  • (1) A network operator may appeal to a District Court against all or any of the conditions imposed under section 142(2)(b) by the local authority or other person who has jurisdiction over the road.

    (2) An appeal must be made not later than 45 working days after the date of notification of the conditions imposed or within any further time that the District Court may allow.

    (3) In its determination of any appeal, a District Court may confirm, modify, or cancel any or all of the conditions imposed.

    (4) The decision of a District Court in the determination of an appeal under this section is final.

Local authority, etc, requiring work to be done

  • Heading: inserted, on 6 August 2010, by section 12 of the Infrastructure (Amendments Relating to Utilities Access) Act 2010 (2010 No 99).

147A Local authority, etc, may require lines, etc, to be moved
  • (1) Where a network operator owns lines, cabinets, wireless works, or other similar appliances that are on a road, the local authority or other person having jurisdiction over the road may, by notice in writing, require the network operator to raise, lower, or otherwise alter the position of the lines, cabinets, wireless works, or other similar appliances.

    (2) If the network operator refuses or fails, within a reasonable period, to do the work required, the person requiring the work may do the work or have it done by some other person.

    (3) Before doing work as permitted by subsection (2), the person requiring the work must give notice to the network operator at least 15 working days before the work commences.

    Compare: 1992 No 122 s 32; 1992 No 124 s 33

    Section 147A: inserted, on 6 August 2010, by section 12 of the Infrastructure (Amendments Relating to Utilities Access) Act 2010 (2010 No 99).

    Section 147A(1): amended, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

147B Cost of work required under section 147A
  • (1) The reasonable cost of all work required to be done under section 147A must be paid by the person that requires the work to be done.

    (2) However, the cost of the work must be paid by the network operator if the reason that the work is required is that the lines, cabinets, wireless works, or other appliances—

    • (a) were constructed contrary to any of the following:

      • (i) this Act or any regulations made under section 157:

      • (ii) the Telecommunications (Residual Provisions) Act 1987:

      • (v) any local or private Act:

      • (vi) any regulations made under any of the enactments referred to in subparagraphs (ii) to (v); or

    • (b) are in a dangerous or unsafe condition.

    (3) A person that requires work to be done under section 147A may not claim for betterment in respect of that work, and no claim for betterment may be made against the person.

    (4) The following provisions apply if the person requiring the work is the New Zealand Transport Agency or the agent of the Minister of Transport:

    • (a) the cost of all lines, cabinets, wireless works, other appliances, and associated equipment that are used in carrying out the required work (other than things used only during the course of construction) must be paid by the network operator:

    • (b) if, as a consequence of the requirement, the network operator elects to fix or install any lines, cabinets, wireless works, or other appliances over, under, or through any roading structure (being a bridge, underpass, overpass, culvert, or tunnel) that is being, or is to be, constructed or altered, and if the cost of constructing or altering the roading structure is thereby increased, then the network operator must pay the increase in cost:

    • (c) if, as a consequence of the requirement, the network operator relocates the lines, cabinets, wireless works, or other similar appliances and reconstructs them to specifications different from those of the original lines, cabinets, wireless works, or other appliances, then, if the costs described in paragraph (d)(i) are less than the costs described in paragraph (d)(ii), the network operator is liable to pay the difference:

    • (d) the costs referred to in paragraph (c) are—

      • (i) what it would have cost to relocate and reconstruct the lines, cabinets, wireless works, or other similar appliances as near as reasonably practicable to their original specifications (excluding any costs to which paragraph (a) applies), taking into account—

        • (A) any restrictions or conditions imposed by or under any enactment in relation to the relocation and reconstruction; and

        • (B) the location of the original works and the alternatives reasonably available to the network operator:

      • (ii) the actual cost of the relocation and reconstruction (excluding any costs to which paragraph (a) applies).

    (5) Subsections (1) to (4) apply subject to any agreement between the person requiring the work and the network operator.

    (6) The amount of payment required under this section must be determined—

    • (a) by agreement between the person liable for the payment and the person to whom it is payable; or

    • (b) failing such agreement, by arbitration under the Arbitration Act 1996, with 1 arbitrator to be appointed by each party and an umpire to be appointed by those arbitrators before entering upon their reference.

    Compare: 1992 No 122 s 33; 1992 No 124 s 34

    Section 147B: inserted, on 6 August 2010, by section 12 of the Infrastructure (Amendments Relating to Utilities Access) Act 2010 (2010 No 99).

    Section 147B(2): amended, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 147B(4)(a): amended, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 147B(4)(b): amended, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 147B(4)(c): amended, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 147B(4)(d)(i): amended, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

147C Relationship with section 54 of Government Roading Powers Act 1989
  • Sections 147A and 147B apply despite anything to the contrary in section 54 of the Government Roading Powers Act 1989.

    Compare: 1992 No 122 s 34; 1992 No 124 s 35

    Section 147C: inserted, on 6 August 2010, by section 12 of the Infrastructure (Amendments Relating to Utilities Access) Act 2010 (2010 No 99).

Miscellaneous

148 Alteration to line or wireless works on road requested by owner
  • (1) If an owner of land or some other person requires a line, wireless works, or other works on a road to be altered so that the owner or other person has access to, or reasonable use of, the land, the network operator may require the person who makes the request to pay the cost of the alteration.

    (2) A network operator is not entitled to be paid the cost of any improvement to a line that is, or wireless works or other works that are, required to be altered by an owner of land or some other person under subsection (1).

    Compare: 1987 No 116 s 16

    Section 148 heading: amended, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 148(1): amended, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 148(2): amended, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

149 Lines must not interfere with public traffic
  • (1) A network operator must not intentionally place the wires of a line so that they interfere with the lawful traffic on a road.

    (2) However, wires of a line do not interfere with the lawful traffic on the road if the wires are placed at a height of 5.5 metres or more above the surface of the road where the wires cross a public road, or at a height of 4.25 metres or more elsewhere.

    Compare: 1987 No 116 s 17(1)

150 Lines over navigable waters
  • A network operator must not intentionally place a line so that it interferes with the navigation of navigable waters.

    Compare: 1987 No 116 s 17(2)

151 Network operator must avoid interference with traffic
  • A network operator, in maintaining, repairing, altering, or removing a line that crosses or is along a road, or that is over or under navigable waters, must not cause unnecessary or avoidable interference to the traffic on, or to the lawful use of, any road or navigable waters.

    Compare: 1987 No 116 s 17(3)

152 Offence to contravene any of sections 149 to 151
  • (1) A network operator who contravenes any of sections 149 to 151 commits an offence.

    (2) A network operator who commits an offence against subsection (1) is liable on conviction to a fine not exceeding $10,000.

    (3) In addition to any fine imposed under subsection (2), a court may make any order relating to compensation that it thinks fit.

    Section 152(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

153 Charging for access to road reserve
  • (1) Despite anything in this Act or in any other enactment, no local authority or other person who has jurisdiction over any road may require the payment, by or on behalf of a network operator, of any amount of or in the nature of rent in respect of any line, wireless works, or other works constructed in, on, along, over, across, or under that road.

    (2) Nothing in subsection (1) applies in respect of any rate or charge levied under the Rating Powers Act 1988.

    Section 153(1): amended, on 1 July 2011, by section 26(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

154 Compensation
  • (1) Every person whose property is damaged as a result of the exercise of any of the powers under this subpart is entitled to compensation.

    (2) The amount of the compensation may be agreed between the network operator and the person concerned or, failing agreement, be determined in the manner provided for by the Public Works Act 1981.

    Compare: 1987 No 116 s 19

155 Protection of existing works
  • (1) Any existing works or existing lines owned by a network operator that are fixed to, or installed over or under, land that is not owned by the network operator are deemed to be lawfully fixed or installed, and continue to be lawfully fixed or installed, until the network operator otherwise decides.

    (2) No person other than the network operator has an interest in any of those works or lines by reason only of having an interest in the land.

    Compare: 1987 No 116 s 20

Subpart 3Access to multi-unit complexes to which fibre-to-the-premises is to be deployed

  • Subpart 3: added, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

155A Overview
  • (1) This subpart provides a statutory right of access to multi-unit complexes that fibre-to-the-premises service providers may use if an access agreement is not negotiated.

    (2) This subpart does not limit the statutory rights of access in sections 120 to 127.

    Section 155A: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

155B Interpretation
  • In this subpart, unless the context otherwise requires,—

    access order means an order of the District Court referred to in section 155I

    Code means the Code that has been approved under section 155K, and includes any amendment to the Code that is approved under that section

    consumer, in relation to a consumer complaints system, includes an owner or occupier

    consumer complaints system, in relation to an FTTP service provider, means either of the following:

    • (a) an industry-based complaints system that has been established by the telecommunications industry and that has been approved by the Minister for the purposes of resolution of complaints under this subpart and the Code; or

    • (b) a consumer complaints system facilitated by Part 4B

    fibre-to-the-premises access network has the same meaning as in section 156AB

    FTTP service provider means the owner or operator of a fibre-to-the-premises access network

    maintenance has the same meaning as in section 117

    multi-unit complex means—

    • (a) a building that contains 2 or more distinct units (including the land on which the building is sited); or

    • (b) a group of buildings that are used communally (including the land on which those buildings are sited)

    owner, in relation to any part of a multi-unit complex, means any 1 or more of the following:

    • (a) a person who has a freehold or a leasehold interest in that part of the complex:

    • (b) any body corporate under the Unit Titles Act 2010 or the registered proprietor of the complex to which the unit plan relates:

    • (c) any other person who has a legal right to grant access to the building or to approve the performance of work in the building

    preliminary notice means a notice that complies with section 155F

    second notice means a notice that complies with section 155H.

    Section 155B: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 155B owner paragraph (b): amended, on 5 December 2013, by section 6 of the Telecommunications Amendment Act 2013 (2013 No 136).

Statutory right of access to multi-unit complexes

  • Heading: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

155C Nature of statutory right of access to multi-unit complexes
  • (1) The right of access conferred by this subpart is that an FTTP service provider may, for the purpose of constructing, erecting, laying, maintaining, or upgrading all or any part of a fibre-to-the-premises access network,—

    • (a) enter a multi-unit complex at reasonable times, with or without any person who is, or any thing that is, reasonably necessary; and

    • (b) perform work that is reasonably necessary for the purpose of constructing, erecting, laying, maintaining, or upgrading all or any part of a fibre-to-the-premises access network.

    (2) This right of access applies only—

    • (a) if the service provider has complied with sections 155D to 155I in respect of each part of the multi-unit complex accessed under this subpart; and

    • (b) to authorise the matters referred to in subsection (1).

    Section 155C: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

155D Preconditions before statutory right of access to multi-unit complexes may be exercised
  • Before an FTTP service provider enters, or performs work in, any part of a multi-unit complex under this subpart, the service provider must first—

    • (a) have agreed to be bound by the Code; and

    • (b) have taken all reasonable steps to negotiate an agreement for entry with the owner in accordance with the Code; and

    • (c) have served a preliminary notice on each owner of that part of the multi-unit complex in accordance with section 155F; and

    • (d) have served a second notice in accordance with section 155H on each owner of that part of the multi-unit complex who has not opted out in accordance with section 155G; and

    • (e) have obtained an access order from the District Court under section 155I in respect of each owner of that part of the multi-unit complex who has opted out in accordance with section 155G; and

    • (f) be a member of a consumer complaints system that provides for the resolution of complaints about compliance with this subpart and the Code.

    Section 155D: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

155E How statutory right of access to multi-unit complex must be exercised
  • (1) The entry to a multi-unit complex under section 155C must only be made by an officer, employee, or agent (including a contractor) of the FTTP service provider authorised by it in writing.

    (2) The person entering must produce evidence of his or her authority and identity—

    • (a) on initial entry; and

    • (b) after the initial entry, on request.

    (3) Subsections (1) and (2) are subject to the terms and conditions of any access order from the District Court under section 155I.

    (4) In this section, evidence of authority has the same meaning as in section 118, with any necessary modifications.

    Section 155E: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Process

  • Heading: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

155F Requirements in respect of preliminary notice
  • (1) A preliminary notice must—

    • (a) contain the matters specified in subsection (2); and

    • (b) comply with the Code; and

    • (c) be served on each person who is known by the service provider to be a current owner; and

    • (d) be left in a prominent place on the land.

    (2) The matters that must be included in the first notice are—

    • (a) an explanation of the infrastructure the service provider is seeking to deploy, maintain, or upgrade, and the benefits of that work:

    • (b) what the initial investigation would entail, including initial indications of the areas the service provider may want to access during the investigation, if known:

    • (c) the date and time of the intended investigation:

    • (d) an explanation that if the service provider does not hear from the owner within 20 working days (or any longer period agreed between the service provider and the owner), the owner will be deemed to have consented in principle to the investigation:

    • (e) an explanation that the owner can opt out of the access regime, and details as to reasonable grounds for opting out and the process for doing so:

    • (f) the contact details of the service provider to be used by the owner if the owner wishes to opt out or to negotiate an alternative time or date for the investigation:

    • (g) an explanation that, if the owner opts out on unreasonable grounds, the service provider may apply to the District Court for an access order:

    • (h) an assurance that the service provider has agreed to be bound by the Code and will, when entering the building, comply with the requirements in the Code, and an Internet link to the Code:

    • (i) an explanation that, if the owner or occupier believes that the service provider has breached the Code, the owner or occupier may complain to a consumer complaints system:

    • (j) an explanation of the process of making a complaint.

    Section 155F: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

155G Opting out of providing access under subpart
  • (1) An owner may opt out of the access regime in this subpart by—

    • (a) serving an opt-out notice on the service provider within 20 working days of receiving a preliminary notice or a second notice (or any longer period agreed between the service provider and the owner); or

    • (b) denying access to a service provider.

    (2) An opt-out notice must be in writing and sent to the contact address given by the service provider.

    (3) The service provider has no right of access under this subpart after an opt-out happens unless the service provider obtains an access order granted by the District Court.

    Section 155G: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

155H Requirements in respect of second notice
  • (1) A second notice must—

    • (a) contain the matters specified in subsection (2); and

    • (b) comply with the Code; and

    • (c) be served on each person who is known by the service provider to be a current owner, and left in a prominent place on the land,—

      • (i) no earlier than 10 working days after the earlier of—

        • (A) the expiration of the 20-working-day period referred to in section 155F(2)(d) (or any longer period agreed between the service provider and the owner); or

        • (B) the date of notification by the owner that the owner consents to the work as proposed in the preliminary notice; and

      • (ii) no later than 21 working days before the time proposed in the notice for the start of the work.

    (2) The second notice must give the owner all the key information relating to the proposed work, including—

    • (a) an explanation of the exact details of the proposed work, including—

      • (i) the areas in which it will occur; and

      • (ii) the nature of the work, including whether it will require structural work; and

      • (iii) the nature of any fixed infrastructure that will be installed in the process:

    • (b) details of the proposed timing of the work and the length of time it is intended to take:

    • (c) an explanation of ongoing access requirements for repairs and maintenance:

    • (d) details of any costs to the owner associated with the work:

    • (e) an explanation that the owner can opt out, and details as to reasonable grounds for opting out and the process for doing so:

    • (f) the contact details of the service provider to be used if the owner wishes to opt out or negotiate an alternative time or date for the work:

    • (g) an explanation that, if the owner opts out on unreasonable grounds, the service provider may apply to the District Court for an access order:

    • (h) an assurance that the service provider has agreed to be bound by the Code and will, when entering the building, comply with the requirements in the Code, and an Internet link to the Code:

    • (i) an explanation that, if the owner or occupier believes that the service provider has breached the Code, the owner or occupier may complain to a consumer complaints system:

    • (j) an explanation of the process of making a complaint.

    Section 155H: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

155I Access orders from District Court
  • (1) If an owner has opted out, the service provider may apply to the District Court for an access order that authorises the service provider, for the purpose of constructing, erecting, laying, maintaining, or upgrading all or any part of a fibre-to-the-premises access network, to—

    • (a) enter a multi-unit complex at reasonable times, with or without any person who is, or any thing that is, reasonably necessary; and

    • (b) perform work that is reasonably necessary for the purpose of constructing, erecting, laying, maintaining, or upgrading all or any part of a fibre-to-the-premises access network.

    (2) The District Court may grant an access order only if the court is satisfied that the owner has unreasonably opted out.

    (3) The District Court must, in making that decision, consider whether the service provider has taken reasonable steps to negotiate an agreement for entry with the owner before applying to the court.

    (4) An access order may be made on any terms and conditions that the District Court thinks fit.

    (5) Sections 120(2), and 122 to 124 apply with necessary modifications.

    Section 155I: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Code

  • Heading: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

155J Preparation of Code
  • (1) The Minister must prepare a Code relating to access to multi-unit complexes by FTTP service providers under this subpart or by agreement.

    (2) The minimum matters that must be included in the Code are—

    • (a) guidance on reasonable processes and time frames for negotiating access with owners; and

    • (b) guidance as to cost sharing between service providers and owners, and processes for agreeing final cost splits; and

    • (c) guidance as to reasonable grounds for opting out; and

    • (d) guidance as to ongoing costs and reasonable conditions of ongoing access.

    (3) The Code may contain any other provisions that are necessary or desirable.

    (4) The Minister must, before recommending that the Governor-General approve a Code, consult service providers, and any other persons, that the Minister reasonably considers may be likely to be representative of the persons to be affected by the Code.

    Section 155J: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

155K Approval and status of Code
  • (1) The Governor-General may, by Order in Council made on the recommendation of the Minister, approve a Code.

    (2) The order may refer to, but need not contain, the Code, and must be published in the Gazette.

    (3) The order and the Code are disallowable instruments for the purposes of the Legislation Act 2012.

    (4) The order, but not the Code, is a legislative instrument for the purposes of the Legislation Act 2012.

    (5) The Code must be presented to the House of Representatives no later than 16 days after the date on which it is approved.

    (6) If any provision of the Code conflicts with this or any other Act, or with any regulation made under this or any other Act, the Act or regulation prevails.

    (7) The Minister may at any time prepare an amendment to the Code, and subsections (1) to (6) apply accordingly.

    (8) The Minister must ensure that the Code, and every amendment to it,—

    • (a) is published on an Internet site that is publicly available at all reasonable times; and

    • (b) is available for purchase in hard copy, at no more than a reasonable cost, from the head office of the Ministry.

    Section 155K: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 155K(3): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

    Section 155K(4): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

Consumer complaints system

  • Heading: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

155L Compliance with rules and binding settlements
  • (1) A service provider who is a member of a consumer complaints system must comply with the rules of that system that relate to complaints about access to multi-unit complexes.

    (2) On the application of the consumer complaints adjudicator or other person responsible for a consumer complaints system, a District Court may require a member of the system to do either or both of the following:

    • (a) comply with the rules of the system that relate to complaints about access to multi-unit complexes:

    • (b) comply with a binding settlement determined by the system in response to a complaint about access to multi-unit complexes.

    (3) If a District Court is satisfied that the terms of a binding settlement are manifestly unreasonable, the court's order under subsection (2)(b) may modify the terms of the binding settlement, but only to the extent that the modification results in a binding settlement that could have been made under the consumer complaints system.

    (4) If an order requiring a member to comply with a binding settlement includes a requirement that the member pay an amount of money to a person, that order (or part of the order) may be enforced as if it were a judgment by a District Court for the payment of a sum of money.

    (5) A reference in this section to a member includes a reference to a person who was a member of the consumer complaints system at the relevant time but is no longer a member at the time of the application or order.

    Section 155L: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

155M Offence to fail to comply with District Court order
  • (1) A member or former member of a consumer complaints system who, knowing that the member or former member is subject to an order made under section 155L, fails to comply with the order, or fails to comply with the order within the time or in the manner required by the order, commits an offence and is liable on conviction to a fine not exceeding $100,000.

    (2) Nothing in this section applies to an order or part of an order of a District Court referred to in section 155L(4).

    Section 155M: inserted, on 1 July 2011, by section 23 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 155M(1): amended, on 1 July 2013, pursuant to section 413 of the Criminal Procedure Act 2011 (2011 No 81).

156 Notices to be in writing
  • [Repealed]

    Section 156: repealed, on 1 July 2011, by section 26(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Part 4AA
Services provided using networks developed with Crown funding: Undertakings regime and Commerce Act 1986 authorisations

  • Part 4AA: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 1Preliminary provisions

  • Subpart 1: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AA Overview
  • (1) This Part—

    • (a) requires providers of wholesale telecommunications services that are provided using a fibre optic communications network that is constructed, in whole or in part, with Crown investment funding provided as part of the Ultra-fast Broadband Initiative, or that provide access to unbundled elements of such a network, to give enforceable undertakings providing for non-discrimination, equivalence, and other matters in relation to the supply of those services (subpart 2); and

    • (b) restricts unbundling of point-to-multipoint layer 1 services before 1 January 2020 in respect of those service providers (section 156AP); and

    • (c) requires those service providers to disclose information concerning costs and other matters in accordance with requirements of the Commission (subpart 3); and

    • (d) enables providers of wholesale telecommunications services provided using a network that is constructed, in whole or in part, with Crown investment funding as part of the Rural Broadband Initiative to give enforceable undertakings that provide for non-discrimination and other matters in relation to those services (subpart 4); and

    • (e) provides certain Commerce Act 1986 authorisations in respect of participation in the Rural Broadband Initiative (subpart 5) and the Ultra-fast Broadband Initiative (subpart 6).

    (2) This section is intended only as a guide to the general scheme and effect of this Part.

    Section 156AA: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AB Interpretation
  • In this Part, unless the context otherwise requires,—

    access seeker means a person who seeks access to a relevant service

    arm's-length has the meaning set out in section 69D

    Crown includes Crown Fibre Holdings Limited

    disclose means to supply to the Commission

    equivalence, in relation to the supply of a relevant service, means equivalence of supply of the service and access to the service provider's network so that third-party access seekers are treated in the same way to the service provider's own business operations, including in relation to pricing, procedures, operational support, supply of information, and other relevant matters

    fibre-to-the-premises access network

    • (a) means a network structure used to deliver telecommunications services over fibre media that connects a powered node in a central office location (an exchange or equivalent powered facility) to an end-user's premises or building, or the optical distribution facility of an end-user's premises or building; and

    • (b) includes the powered node in the central office location; and

    • (c) includes that part of the overall telecommunications link that connects to the end-user's equipment

    information includes any statement, certificate, or other information required to be disclosed under this Part

    layer 1 service has the same meaning as in the document New Zealand Government Ultra-Fast Broadband Initiative Invitation to Participate in Partner Selection Process dated October 2009 (as amended)

    LFC or local fibre company means a company through which the investment of the Crown and a UFB partner in relation to a fibre optic communications network is effected, including—

    • (a) a company in which the Crown and the UFB partner hold shares; and

    • (b) a company in which the Crown holds a financial interest pursuant to the selection of that company as a UFB partner

    LFC fibre network means a fibre-to-the-premises access network that is owned or operated by an LFC

    non-discrimination, in relation to the supply of a relevant service, means that the service provider must not treat access seekers differently, or, where the service provider supplies itself with a relevant service, must not treat itself differently from other access seekers, except to the extent that a particular difference in treatment is objectively justifiable and does not harm, and is unlikely to harm, competition in any telecommunications market

    point-to-multipoint layer 1 service means a layer 1 service provided over a network configuration that enables each fibre to provide multiple end-point connections

    prescribed means prescribed by the Commission

    relevant service

    • (a) in subparts 2 and 3, means a wholesale telecommunications service that is provided using, or that provides access to unbundled elements of, an LFC fibre network; and

    • (b) in subpart 4, means a wholesale telecommunications service that is provided using, or that provides access to, unbundled elements of a network that is constructed with funding provided, in whole or in part, by the Crown as part of the Rural Broadband Initiative

    Rural Broadband Initiative means the programme to develop enhanced broadband infrastructure in non-urban areas of New Zealand with the support of Crown grant funding

    service provider means a provider of a relevant service

    UFB initiative means the competitive tender programme, known as the Ultra-fast Broadband Initiative, to develop fibre-to-the-premises broadband networks connecting 75% of New Zealand households, with the support of $1.5 billion of Crown investment funding

    UFB partner means a successful tenderer in the UFB initiative

    undertaking means an undertaking under this Part.

    Section 156AB: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 2Undertakings relating to networks developed with Crown funding as part of UFB initiative

  • Subpart 2: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AC Purposes
  • The purposes of this subpart are to—

    • (a) promote competition in telecommunications markets for the long-term benefit of end-users of telecommunications services in New Zealand; and

    • (b) require transparency, non-discrimination, and equivalence of supply in relation to certain telecommunications services; and

    • (c) facilitate efficient investment in telecommunications infrastructure and services.

    Section 156AC: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Requirements for undertakings

  • Heading: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AD Main requirements for undertakings
  • (1) An LFC must enter into an undertaking in accordance with this subpart.

    (2) The undertaking must—

    • (a) be executed by the LFC; and

    • (b) provide for the LFC to supply unbundled layer 1 services on all parts of its fibre-to-the-premises access network on and after 1 January 2020; and

    • (c) provide for the LFC to—

      • (i) achieve non-discrimination in relation to the supply of relevant services; and

      • (ii) design and build the LFC fibre network in a way that enables equivalence in relation to the supply of unbundled layer 1 services to be achieved on and after 1 January 2020; and

      • (iii) achieve equivalence in relation to the supply of unbundled layer 1 services on and after 1 January 2020; and

    • (d) provide for the LFC to deal with the UFB partner on arm's-length terms (unless the UFB partner and the LFC are not separate entities); and

    • (e) provide for the LFC to maximise the use of standard terms for the supply of services through the use of template, or model, agreements; and

    • (f) provide for access seekers to have the same access to information from the LFC; and

    • (g) specify rules for the treatment of confidential information relating to access seekers; and

    • (h) provide for disclosure of relevant information to the Commission, to support the Commission's assessment of compliance with the undertaking; and

    • (i) provide for any other matters required by a determination of the Minister under section 156AE.

    (3) An undertaking may specify a mechanism for resolution, by a suitably qualified and experienced independent person, of any disputes that arise between the LFC and access seekers after the undertaking is approved.

    (4) Subsection (3) does not limit the further matters that may be included in an undertaking.

    (5) However, an undertaking must not—

    • (a) provide for rules or obligations in respect of services that are not relevant services (including layer 1 services); or

    • (b) specify the price or non-price terms of supply for any telecommunications service.

    Section 156AD: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AE Minister may determine further requirements for undertakings
  • (1) The Minister may determine further requirements with which an undertaking must comply.

    (2) The further requirements may—

    • (a) specify the relevant services, or types of relevant services, to which the requirements in section 156AD apply, and how they are to apply; and

    • (b) include further matters that must be addressed in the undertaking, and minimum requirements for the undertaking.

    (3) Any further requirements determined by the Minister under this section do not apply to an undertaking that has already been approved by the Minister.

    Section 156AE: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AF Minister must issue and consult on draft determination
  • Before making a determination under section 156AE, the Minister must prepare a draft determination and consult on that draft with those persons that the Minister considers have a material interest in the determination.

    Section 156AF: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AG Procedural requirements for determination
  • (1) The Minister must notify a determination made under section 156AE in the Gazette as soon as practicable after it is made.

    (2) The notice in the Gazette

    • (a) need not contain the determination:

    • (b) must give a brief description of the nature of the determination:

    • (c) must state where copies of the determination are available for inspection and purchase.

    (3) The Minister must make the determination available to the public by making copies of it available—

    • (a) for inspection, free of charge,—

      • (i) at the head office of the Ministry (during office hours); and

      • (ii) on the Internet in an electronic form that is publicly accessible (at all reasonable times); and

    • (b) for purchase at a reasonable price.

    (4) A determination is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

    (5) [Repealed]

    Section 156AG: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156AG(4): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

    Section 156AG(5): repealed, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

Process for submission and consideration of undertakings

  • Heading: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AH LFC must submit undertaking for approval by Minister
  • An LFC must submit an undertaking for approval by the Minister by sending the undertaking in writing to the Minister.

    Section 156AH: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AI Minister may approve or decline undertaking
  • (1) The Minister may, by notice in writing to the LFC who submitted the undertaking,—

    • (a) approve the undertaking; or

    • (b) decline to approve the undertaking.

    (2) The Minister must not approve the undertaking unless the Minister is satisfied that it meets the requirements in section 156AD.

    (3) If the Minister declines to approve the undertaking, the Minister—

    • (a) must give reasons for not approving the undertaking; and

    • (b) may invite the LFC to submit an amended undertaking for approval by the Minister.

    (4) Subsections (1) and (3) and section 156AH apply to an amended undertaking.

    (5) The Minister must notify his or her approval of an undertaking by notice in the Gazette.

    Section 156AI: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Implementation of undertakings

  • Heading: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AJ Implementation of undertaking
  • On and from the date that the Minister's approval of an undertaking is notified in accordance with section 156AI(5), the undertaking takes effect as if it were a deed that is—

    • (a) properly executed by, and binding on, the LFC; and

    • (b) given in favour of the Crown.

    Section 156AJ: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AK LFC must publish undertaking
  • (1) As soon as practicable after the Minister's approval of an undertaking is notified, the LFC must publish the undertaking on an Internet site maintained by or on behalf of the LFC so that it is publicly accessible at all reasonable times.

    (2) The LFC must make a copy of the undertaking available for inspection free of charge at its registered office.

    Section 156AK: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Variation and termination of undertakings

  • Heading: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AL Variation of undertaking
  • (1) The Minister may, on the recommendation of the Commission, approve a variation of an undertaking.

    (2) The Commission must not make a recommendation under subsection (1) unless—

    • (a) the LFC who gave the undertaking has submitted a request for the variation to the Commission; and

    • (b) the Commission has consulted with interested parties; and

    • (c) the Commission is satisfied that the variation would best give effect to the purposes of this subpart.

    Section 156AL: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AM Procedure for variation of undertaking
  • (1) An LFC may submit a request for a variation of an undertaking under section 156AL by sending the proposed variation in writing to the Commission.

    (2) The Commission must notify the LFC in writing of whether it proposes to recommend that the Minister approve the variation.

    (3) The notice under subsection (2)—

    • (a) must set out the reasons for the Commission's decision; and

    • (b) may invite the LFC to submit an amended variation for consideration, if the Commission does not propose to recommend that the Minister approve the variation.

    (4) The Commission must make reasonable efforts to give the notice not later than 30 working days after the Commission receives the request for the variation from the service provider.

    (5) Sections 156AI to 156AK apply, with all necessary modifications, to a variation of an undertaking as if the variation were an undertaking.

    Section 156AM: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AN Clarification of undertaking
  • The Commission may amend an undertaking to clarify it if—

    • (a) the Commission, on the application of the LFC who gave the undertaking, considers that the undertaking requires clarification; and

    • (b) the clarification is not material.

    Section 156AN: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AO Termination of undertaking
  • (1) An undertaking may be terminated by mutual agreement between the LFC and the Minister.

    (2) The Minister may request the Commission to recommend whether an undertaking should be terminated under this section.

    (3) The Commission may, in response to a request under subsection (2) or on its own initiative, recommend to the Minister that an undertaking be terminated under this section, if the Commission considers that the termination would best promote the purposes of this subpart.

    Section 156AO: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Effect of undertakings in relation to unbundling of certain services

  • Heading: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AP Commission may not recommend or investigate unbundling of point-to-multipoint layer 1 services
  • (1) The Commission must not, before the close of 31 December 2019, provide a final report to the Minister recommending the unbundling of any point-to-multipoint layer 1 service that is provided by an LFC that is subject to a binding undertaking.

    (2) The Commission must not, before the close of 31 December 2018, commence an investigation into the unbundling of any point-to-multipoint layer 1 service provided by an LFC that is subject to a binding undertaking.

    (3) An LFC is subject to a binding undertaking for the purposes of this section if it has entered into an undertaking that has been approved by the Minister under this subpart and that is still in force.

    Section 156AP: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Enforcement of undertakings

  • Heading: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AQ Enforcement and remedies under Part 4A
  • Sections 156L, 156M, and 156O to 156R apply to an undertaking under this subpart as provided in Part 4A.

    Section 156AQ: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AR Power of court to grant relief in respect of undertakings
  • (1) If, on the application of the Commission, it appears to the High Court that an LFC intends to engage, or is engaging, or has engaged, in conduct that constitutes, or would constitute, a breach of the terms of an undertaking, the court may make any orders on any terms and conditions that it thinks appropriate, including, without limitation, an order to—

    • (a) restrain the LFC from engaging in conduct that constitutes, or would constitute, the breach:

    • (b) require the LFC to do a particular act or thing:

    • (c) require the LFC to comply with the terms of the undertaking.

    (2) In any proceeding under this section, the Commission, on the order of the court, may obtain discovery and administer interrogatories.

    (3) The court may at any time rescind or vary an order made under this section.

    Section 156AR: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AS Interrelationship of remedies
  • (1) Nothing in this Part or Part 4A limits or affects any right, duty, liability, or remedy in respect of an undertaking that exists or is available apart from this Part or Part 4A.

    (2) Any right of action or other remedy available under this Part or Part 4A in respect of an undertaking may be taken, proceeded with, or heard in conjunction with any other action or remedy available under this Act or otherwise.

    (3) However, in determining whether to order a person to pay a penalty, compensation, or damages in respect of an undertaking, the court must have regard to—

    • (a) whether that person has already been ordered to pay a penalty, compensation, or damages for the same matter; and

    • (b) if so, the amount and effect of that first order.

    Section 156AS: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 3Information disclosure by LFCs with undertakings

  • Subpart 3: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AT Purpose
  • The purpose of this subpart is to promote competition in telecommunications markets for the long-term benefit of end-users of telecommunications services in New Zealand by requiring LFCs who have given undertakings in relation to certain services to provide reliable and timely information to the Commission to enable it to record over time the costs and characteristics of LFC fibre networks to inform the Commission's statutory processes and determinations.

    Section 156AT: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AU Commission must require disclosure by LFCs
  • (1) The Commission must require LFCs to prepare and disclose information, annually, about the costs and characteristics of relevant services and the LFC fibre networks used to provide, or comprised of, relevant services.

    (2) The Commission may require the LFCs to prepare and disclose information consisting of, or about, the following things, as part of the information required under this section:

    • (a) financial statements:

    • (b) asset valuations and valuation reports:

    • (c) prices, terms, and conditions:

    • (d) costs and cost allocation methodologies:

    • (e) contracts:

    • (f) transactions with related parties (as if the test for related parties were the same as the test in section 79), including prices and methodologies in relation to such transactions:

    • (g) financial and non-financial performance measures:

    • (h) plans and forecasts:

    • (i) transfer payments (whether actual or notional) amongst prescribed business activities:

    • (j) network capacity information:

    • (k) characteristics of relevant services:

    • (l) policies and methodologies in the areas referred to in paragraphs (a) to (k) or other areas.

    (3) The Commission may, as part of the information required under this section,—

    • (a) define the prescribed business activities and prescribed services in respect of which the LFC must prepare and disclose information:

    • (b) require the LFC to adopt, in the preparation or compilation of that information, any methodology that is required by the Commission (including the allocation methodology that must be used for preparing the financial statements and allocating the costs):

    • (c) require the LFC to disclose the manner in which methodologies have been applied:

    • (d) prescribe the information that must be included in the financial statements to be prepared and disclosed.

    (4) The LFCs must prepare and disclose the information required under this section in accordance with the Commission's requirements.

    (5) To avoid doubt, nothing in this subpart requires an LFC to prepare and disclose information about the operation of all or any of its network or wholesale activities as if those activities were operated as independent or unrelated companies.

    Section 156AU: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AV Further powers of Commission relating to information disclosure
  • The Commission may, in making requirements under section 156AU,—

    • (a) prescribe the form and manner in which information must be disclosed:

    • (b) specify a time or date, or times or dates, as at which information must be disclosed:

    • (c) require the disclosure of assumptions made in the preparation of the information:

    • (d) require the audit of disclosed information:

    • (e) require disclosed information, or information from which disclosed information is derived (in whole or in part), to be certified, in a prescribed form and manner, by persons belonging to any specified class of persons:

    • (f) set rules about when and for how long information must be disclosed:

    • (g) require the retention of data on which disclosed information is based and associated documentation:

    • (h) exempt or provide for exemptions (including provide for the revocation of exemptions), on any terms and conditions, of any person or class of persons from all or any of the requirements:

    • (i) provide for transitional provisions:

    • (j) make requirements from time to time (for example, more than once a year):

    • (k) make requirements in respect of all or part of the relevant business.

    Section 156AV: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AW Commission may publish reports, etc, on information collected
  • (1) The Commission may publish reports on, and summaries and analyses of, information collected under this subpart for the purpose of informing the industry and the public of current developments and emerging trends in relation to LFC fibre-to-the-premises access networks.

    (2) The publication may be in any form that the Commission considers fit.

    (3) In exercising its power under this section, the Commission must ensure that it protects the confidentiality of any information that may reasonably be regarded as confidential or commercially sensitive.

    Section 156AW: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 4Undertakings relating to networks developed with Crown funding as part of Rural Broadband Initiative

  • Subpart 4: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AX Interpretation of this subpart
  • In this subpart, unless the context otherwise requires,—

    relevant service means a service that is provided using, or that provides access to the unbundled elements of, a network that was constructed with funding provided, in whole or in part, by the Crown as part of the Rural Broadband Initiative

    service provider means a provider of a relevant service.

    Section 156AX: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AY Requirements for undertakings under this subpart
  • (1) A service provider may enter into an undertaking.

    (2) The undertaking must—

    • (a) provide for the service provider to achieve non-discrimination in relation to supply of relevant services; and

    • (b) provide for the disclosure of relevant information to the Commission, to support the Commission's assessment of compliance with the undertaking.

    (3) An undertaking may specify a mechanism for resolution, by a suitably qualified and experienced independent person, of any disputes that arise between the service provider and access seekers after the undertaking is approved.

    (4) Subsection (3) does not limit the further matters that may be included in an undertaking.

    Section 156AY: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AZ Application of provisions in subpart 1
  • Sections 156AH to 156AN, 156AO, and 156AQ to 156AS, with all necessary modifications, apply to an undertaking under this subpart as if every reference in those sections to an LFC were a reference to a service provider.

    Section 156AZ: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 5Commerce Act 1986 authorisations in respect of Rural Broadband Initiative

  • Subpart 5: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AZA Restrictive trade practices authorisations in respect of Telecom and Vodafone participation in Rural Broadband Initiative
  • (1) The following are authorised:

    • (a) the joint Telecom–Vodafone proposal made on 12 November 2010 in response to the Rural Broadband Initiative request for proposals issued on 26 August 2010; and

    • (b) any contract that is entered into between the Crown and Telecom, or the Crown and Vodafone, to provide funding to Telecom or Vodafone in accordance with the Rural Broadband Initiative.

    (2) In this section, unless the context otherwise requires,—

    Vodafone means Vodafone New Zealand Limited and its subsidiaries.

    (3) The authorisations apply to any contract, arrangement, or understanding that is entered into before the date on which this section comes into force as if the authorisation were in force at the time of entry.

    (4) The authorisations do not apply to a contract, arrangement, or understanding that is entered into later than 6 months after the date on which this section comes into force.

    (5) The authorisations must be treated as if they were authorisations granted by the Commerce Commission under section 58(1), (2), (5), and (6) of the Commerce Act 1986.

    (6) Sections 65 and 91 to 97 of the Commerce Act 1986 do not apply to the authorisations.

    (7) The effect of the authorisations is the same as that stated in section 58A(1) and (2) of the Commerce Act 1986.

    Section 156AZA: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 6Commerce Act 1986 authorisations in respect of Ultra-fast Broadband Initiative

  • Subpart 6: added, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AZB Interpretation for this subpart
  • In this subpart, unless the context otherwise requires,—

    fibre optic network assets means ducting, fibre optic cabling, and related electronic equipment, together with other related equipment, that is used in connection with telecommunication over a fibre-based network

    Telecom includes Chorus and a successor to Telecom or Chorus

    telecommunications network company means a company that owns or operates a network.

    Section 156AZB: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AZC Restrictive trade practices authorisations in respect of participation in Ultra-fast Broadband Initiative
  • (1) The following are authorised:

    • (a) any contract, arrangement, or understanding between the Crown and Telecom that is necessary to give effect to the selection of Telecom as a UFB partner in a particular region or regions; and

    • (b) any contract, arrangement, or understanding that is part of the arrangement with the Crown under the UFB initiative in a particular region or regions, under which Telecom or a UFB partner transfers fibre optic network assets to a local fibre company owned partially by the Crown.

    (2) The authorisations—

    • (a) apply to any contract, arrangement, or understanding that is entered into before the date on which this section comes into force as if the authorisations were in force at the time of entry; but

    • (b) do not apply to any contract, arrangement, or understanding that is entered into more than 2 years after the date on which this section comes into force.

    (3) The authorisations must be treated as if they were authorisations granted by the Commerce Commission under section 58(1), (2), (5), and (6) of the Commerce Act 1986.

    (4) Sections 65 and 91 to 97 of the Commerce Act 1986 do not apply to the authorisations.

    (5) The effect of the authorisations is the same as that stated in section 58A(1) and (2) of the Commerce Act 1986.

    Section 156AZC: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156AZD Business acquisition authorisations in respect of participation in Ultra-fast Broadband Initiative
  • (1) The following are authorised:

    • (a) any acquisition by a UFB partner or a local fibre company owned partially by the Crown of the fibre optic network assets or undertaking of any telecommunications network company as part of an arrangement with the Crown under the UFB initiative; and

    • (b) any acquisition by a UFB partner of the shares of any telecommunications network company (whether on a minority or an equal basis or otherwise) as part of an arrangement with the Crown, or with the Crown and another UFB partner, under the UFB initiative; and

    • (c) any acquisition by the Crown of shares in, or assets of, Telecom pursuant to the selection of Telecom as a UFB partner in a particular region or regions.

    (2) The authorisations do not apply to any acquisition that is made more than 2 years after the date on which this section comes into force.

    (3) The authorisations must be treated as if they were authorisations granted by the Commerce Commission under section 67(3)(b) of the Commerce Act 1986 on the date on which this section comes into force.

    (4) Sections 91 to 97 of the Commerce Act 1986 do not apply to the authorisations.

    (5) The effect of the authorisations is the same as that stated in section 69 of the Commerce Act 1986.

    Section 156AZD: inserted, on 1 July 2011, by section 81 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Part 4A
Enforcement

  • Part 4A: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Subpart 1Enforcement of statutory and regulatory provisions

  • Subpart 1: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Preliminary

  • Heading: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

156A Application of section 156B
  • (1) Section 156B applies to a person who commits any of the following breaches:

    • (a) fails, without reasonable excuse, to comply with section 22A:

    • (b) fails, without reasonable excuse, to comply with a notice under section 30F requiring a standard terms proposal to be submitted to the Commission:

    • (c) knowingly submits a standard terms proposal that fails to comply with section 30G:

    • (d) fails, without reasonable excuse, to comply with a notice under section 45 or a notice requirement (if any) set out in subpart 1 of Part 2 of Schedule 1 in respect of the applicable final pricing principle:

    • (e) fails, without reasonable excuse, to provide to the Commission not later than the time specified by it—

    • (f) knowingly provides false or misleading information or documents under section 45 or under the notice requirement (if any) set out in subpart 1 of Part 2 of Schedule 1 in respect of the applicable final pricing principle:

    • (fa) fails, without reasonable excuse, to comply with section 69F:

    • (fb) fails, without reasonable excuse, to comply with a notice under section 69H:

    • (g) fails, without reasonable excuse, to comply with an information disclosure requirement made under section 69ZC(4), 69ZF(2), or 156AU:

    • (h) knowingly provides false or misleading information or documents under Part 2B:

    • (i) fails, without reasonable excuse, to provide to the Commission, not later than the time specified by it, the information or documents referred to in section 81(2):

    • (ia) knowingly provides or signs a false or misleading certificate under section 81:

    • (ib) knowingly provides false or misleading information or documents under section 81:

    • (j) fails, without reasonable excuse, to comply with section 82:

    • (ja) knowingly provides false or misleading information or documents under section 82:

    • (k) fails, without reasonable excuse, to comply with section 83:

    • (l) knowingly provides false or misleading information or documents under section 83:

    • (la) fails, without reasonable excuse, to comply with section 94D:

    • (lb) knowingly provides false or misleading information or documents under section 94D:

    • (lba) fails, without reasonable excuse, to comply with section 94EA:

    • (lbb) knowingly provides false or misleading information under section 94EA:

    • (lc) fails, without reasonable excuse, to comply with a requirement of the Commission under section 100BA(3):

    • (ld) knowingly provides false or misleading information or documents under section 100BA:

    • (m) fails, without reasonable excuse, to comply with section 111A:

    • (ma) fails, without reasonable excuse, to comply with section 156AK:

    • (n) fails, without reasonable excuse, to comply with any regulations made under section 157(ch) in relation to emergency call services.

    (2) Section 156B also applies as provided in—

    Section 156A: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 156A(1)(fa): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 64(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(1)(fb): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 64(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(1)(g): amended, on 1 July 2011, by section 82(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(1)(i): substituted, on 1 July 2011, by section 24(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(1)(ia): inserted, on 1 July 2011, by section 24(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(1)(ib): inserted, on 1 July 2011, by section 24(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(1)(j): substituted, on 1 July 2011, by section 24(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(1)(ja): inserted, on 1 July 2011, by section 24(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(1)(la): inserted, on 1 July 2011, by section 24(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(1)(lb): inserted, on 1 July 2011, by section 24(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(1)(lba): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 60 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(1)(lbb): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 60 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(1)(lc): inserted, on 1 July 2011, by section 24(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(1)(ld): inserted, on 1 July 2011, by section 24(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(1)(ma): amended, on 1 July 2011, by section 82(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156A(2): added, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 64(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156B Enforcement actions that Commission may take
  • (1) The Commission may take either of the following actions against a person to whom this section applies:

    • (a) serve a civil infringement notice on the person under section 156D; or

    • (b) apply to the High Court for an order, under section 156L, requiring the person to pay a pecuniary penalty to the Crown.

    (2) This section does not limit any power conferred on the Commission by or under section 15 or any other enactment.

    Section 156B: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

156C Matters that Commission must take into account in deciding what enforcement action to take
  • In making a decision about what action to take under section 156B, the Commission must take into account the following matters:

    • (a) the seriousness of the alleged breach:

    • (b) the circumstances in which the alleged breach took place:

    • (c) whether or not the person who is alleged to have committed the breach has previously committed a breach of that kind or has engaged in any similar conduct:

    • (d) the culpability of the person who is alleged to have committed the breach:

    • (e) the nature and extent of any commercial gain resulting from the alleged breach:

    • (f) the nature and extent of any loss or damage suffered by any person as a result of the alleged breach.

    Section 156C: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Civil infringement notice

  • Heading: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

156D Civil infringement notice
  • (1) A civil infringement notice must be served within 12 months after the day on which a breach of any of the provisions set out in section 156A is alleged to have been committed.

    (2) A civil infringement notice must be in the prescribed form and must contain the following particulars:

    • (a) sufficient details to inform the person issued with the notice of the time, manner, and nature of the alleged breach:

    • (b) the amount of the pecuniary penalty prescribed to be paid for the alleged breach:

    • (c) the address at which the pecuniary penalty may be paid or an explanation of how payment of the pecuniary penalty is to be made, or both:

    • (d) the time within which the pecuniary penalty must be paid:

    • (e) a statement of what may happen if the person does not pay the pecuniary penalty by that time:

    • (f) a statement of the person's right to object, under section 156E, to the notice:

    • (g) any other prescribed information (if any).

    Section 156D: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

156E Objection to civil infringement notice
  • (1) A person who has been served with a civil infringement notice may make a written objection to the Commission on either or both of the following grounds:

    • (a) that the person has not committed the alleged breach:

    • (b) that the amount of the pecuniary penalty specified in the notice is excessive having regard to the nature of the alleged breach.

    (2) An objection must—

    • (a) contain the prescribed information; and

    • (b) be made within the prescribed time and in the prescribed manner.

    Section 156E: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

156F Commission must consider objection
  • (1) The Commission must—

    • (a) consider every objection made in accordance with section 156E; and

    • (b) decide whether to refuse or accept an objection within 10 working days after the date on which the objection is made; and

    • (c) promptly give written notice of its decision and the reasons for its decision to the person who made the objection.

    (2) If the Commission refuses the objection, the notice under subsection (1)(c) must also contain the following particulars:

    • (a) the address at which the pecuniary penalty may be paid or an explanation of how payment of the pecuniary penalty is to be made, or both:

    • (b) a time within which the pecuniary penalty must be paid:

    • (c) a statement of what may happen if the person does not pay the pecuniary penalty by that time:

    • (d) a statement of the person's right to appeal, under section 156I, against the Commission's decision to refuse the objection.

    (3) If the Commission accepts the objection, the notice under subsection (1)(c) must also contain a statement that the civil infringement notice has been withdrawn.

    Section 156F: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

156G Effect of withdrawal of civil infringement notice
  • (1) A person who has been served with a civil infringement notice is discharged from any liability for a breach specified in the notice if the Commission withdraws the notice—

    • (a) on its own initiative; or

    (2) The Commission must refund the pecuniary penalty specified in a civil infringement notice if the notice is withdrawn after the penalty was paid.

    Section 156G: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

156H Consequence of not paying pecuniary penalty specified in civil infringement notice
  • (1) The consequence specified in subsection (2) applies if a person—

    • (a) is served with a civil infringement notice; and

    • (b) fails to pay the whole, or any part, of the pecuniary penalty on or before the later of the time specified in that notice or in the notice under section 156F(1)(c).

    (2) The consequence is that the Commission may recover from the person, as a debt due to the Commission, in a District Court,—

    • (a) the unpaid portion of the pecuniary penalty; and

    • (b) the actual and reasonable costs of recovery awarded against the person by that court.

    (3) In any proceedings for the recovery of a debt under this section, the District Court must not enter judgment in favour of the Commission unless it is satisfied that the circumstances referred to in subsection (1) exist.

    Section 156H: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

156I Right to appeal
  • (1) A person may appeal to a District Court if the person is dissatisfied with a decision of the Commission to refuse the person's objection to a civil infringement notice.

    (2) An appeal under subsection (1) must be brought within 20 working days after the date on which the notice under section 156F(1)(c) is given.

    (3) An appeal under subsection (1) does not operate as a stay of the civil infringement notice.

    Section 156I: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

156J Decision on appeal
  • (1) A District Court must determine an appeal under section 156I by dismissing or allowing the appeal.

    (2) If the District Court dismisses an appeal, the dismissal must be taken to be an order for the payment of the pecuniary penalty specified in the civil infringement notice to which the decision under appeal relates.

    (3) If the District Court allows an appeal, it may make an order that the pecuniary penalty specified in the civil infringement notice to which the decision under appeal relates—

    • (a) is varied or cancelled; or

    • (b) is to be refunded to the person, if the appeal is allowed after the penalty was paid to the Commission or was recovered as a debt due to the Commission under section 156H.

    Section 156J: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

156K Commission may publish information about issue of civil infringement notice
  • (1) The Commission may, in any manner that it thinks fit, publish a notice that contains information or statements to the following effect:

    • (a) a statement that a person has been served with a civil infringement notice under this Act:

    • (b) the name of the person concerned:

    • (c) the nature of the breach in respect of which the civil infringement notice was issued:

    • (d) the amount of the pecuniary penalty prescribed to be paid for the breach:

    • (e) any other prescribed information.

    (2) The Commission must not exercise its powers under subsection (1)—

    • (a) before the close of the prescribed time for making an objection under section 156E in respect of the relevant civil infringement notice; or

    • (b) if an objection is made under section 156E before the close of that prescribed time and the Commission refuses the objection, before the close of the period for bringing an appeal under section 156I in respect of the relevant civil infringement notice; or

    • (c) if the Commission withdraws the relevant civil infringement notice under section 156F; or

    • (d) if an appeal under section 156I is brought in respect of the relevant civil infringement notice during that appeal period and the District Court allows the appeal by cancelling the pecuniary penalty specified in that notice.

    Section 156K: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Pecuniary penalty

  • Heading: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

156L Pecuniary penalty
  • (1) The High Court may order a person to pay to the Crown any pecuniary penalty that the court determines to be appropriate if the High Court is satisfied, on the application of the Commission, that—

    • (a) the person has failed, without reasonable excuse, to comply with an undertaking under Part 2A; or

    • (ab) the person has failed, without reasonable excuse, to comply with an undertaking under Part 4AA; or

    • (b) the person has committed a breach of any of the provisions set out in section 156A.

    (2) In determining an appropriate remedy to be imposed under this section, the High Court must have regard to all relevant matters, including—

    • (a) the nature and extent of any commercial gain; and

    • (b) if subsection (1)(ab) applies, the size of the service provider.

    (3) The amount of any pecuniary penalty for each act or omission must not exceed—

    • (a) $10 million for a breach referred to in subsection (1)(a); and

    • (ab) $10 million for a breach referred to in subsection (1)(ab) (Part 4AA undertakings—UFB and RBI); and

    • (b) $10 million for a breach referred to in section 69L (failure to comply with or amend sharing arrangements); and

    • (ba) $10 million for a breach referred to in section 69T (line of business restrictions); and

    • (bb) $10 million for a breach referred to in section 69XG (Chorus undertakings); and

    • (bd) $1 million for a breach referred to in section 156A(fb) (obligation in section 69H to comply with Commission's investigation, etc, powers); and

    • (c) $300,000 in any other case.

    (4) The standard of proof in proceedings under this section is the standard of proof that applies in civil proceedings.

    (5) Proceedings under this section may be commenced within 3 years after the matter giving rise to the breach was discovered or ought reasonably to have been discovered.

    (6) If conduct by a person constitutes a breach of 2 or more provisions referred to in subsection (1), proceedings may be commenced under this section against that person in relation to the breach of any 1 or more of those provisions.

    (7) However, no person is liable to more than 1 pecuniary penalty under this section for the same conduct.

    Section 156L: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 156L(1)(a): amended, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 65(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156L(1)(ab): inserted, on 1 July 2011, by section 83(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156L(2): substituted, on 1 July 2011, by section 83(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156L(3)(ab): inserted, on 1 July 2011, by section 83(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156L(3)(b): substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 65(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156L(3)(ba): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 65(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156L(3)(bb): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 65(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156L(3)(bc): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 65(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156L(3)(bd): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 65(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156M Further penalty may be imposed for continuing breach
  • (1) In addition to a pecuniary penalty imposed under section 156L, the High Court may, for a continuing breach of any of the provisions referred to in section 156L(1), impose for each day or part of a day during which the breach continues a further penalty of—

    • (aa) $500,000 for a breach referred to in section 69L; and

    • (ab) $500,000 for a breach referred to in section 69T; and

    • (c) $10,000 for any other case.

    (2) To avoid doubt, any further penalty under subsection (1) may be imposed only in respect of the period that—

    • (a) begins on the day on which the pecuniary penalty was imposed under section 156L; and

    • (b) ends on the day on which the breach is remedied.

    Section 156M: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 156M(1)(aa): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 66 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156M(1)(ab): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 66 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156M(1)(ac): inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 66 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156M(1)(b): amended, on 1 July 2011, by section 50 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 2Enforcement of determinations, approved codes, and undertakings

  • Subpart 2: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

  • Subpart 2 heading: amended, on 1 July 2011, by section 84 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156N Interpretation
  • In sections 156O to 156R,—

    enforceable matter means any of the following:

    • (b) a standard terms determination made under section 30M:

    • (c) a residual terms determination made under section 30ZB:

    • (d) a designated multinetwork service determination made under section 39:

    party means a party to an enforceable matter and includes, in the case of an undertaking under Part 2A or 4AA, any provider of a telecommunications service that is affected by a breach of the undertaking.

    Section 156N: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 156N enforceable matter paragraph (e): amended, on 1 July 2011, by section 85(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156N enforceable matter paragraph (ea): inserted, on 1 July 2011, by section 85(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156N party: substituted, on 1 July 2011, by section 85(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156O Complaints of breach of enforceable matter
  • (1) The following persons may make a written complaint to the Commission alleging a breach of an enforceable matter:

    • (a) an access seeker or an access provider of a designated service or a specified service:

    • (b) in the case of an undertaking under Part 2A or 4AA, a party.

    (2) As soon as reasonably practicable after receiving a complaint, the Commission must consider the complaint to decide—

    • (a) whether to take no action on the complaint; or

    • (b) whether to take either or both of the following actions:

      • (i) to amend the enforceable matter for the purpose of making a clarification (if the complaint relates, or appears to relate, to a dispute over the interpretation of the terms or conditions of the enforceable matter and the dispute has not previously been submitted to any dispute resolution procedure that is included in the enforceable matter):

      • (ii) to take, or join another party in taking, enforcement action for the enforceable matter in the High Court under section 156P.

    (3) In deciding whether to take the action referred to in subsection (2)(b)(i), the Commission must consult with interested parties.

    (4) In deciding whether to take the action referred to in subsection (2)(b)(ii), the Commission—

    • (a) must consider,—

      • (i) in the case of a complaint by a person referred to in subsection (1)(a), the purpose set out in section 18; and

      • (ii) in the case of a complaint by a party relating to an undertaking under Part 2A, the purpose set out in section 69W; and

      • (iii) in the case of a complaint by a party relating to an undertaking under Part 4AA, the purposes set out in section 156AC; and

    • (b) may consider the financial means of the complainant.

    (5) For the purposes of subsection (2)(b)(i), section 58 applies to the enforceable matter with any necessary modifications.

    (6) The Commission must promptly give written notice to the complainant of the Commission's decision on the complaint.

    (7) Subsection (2)(b)(i) does not apply in the case of an undertaking under Part 2A or 4AA.

    Section 156O: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 156O(1): substituted, on 1 July 2011, by section 86(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156O(1)(b): substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 67(1) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156O(4): substituted, on 1 July 2011, by section 86(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156O(4)(a)(ii): substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 67(2) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Section 156O(7): substituted, on 1 July 2011, by section 86(3) of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156P Enforcement by High Court
  • (1) An enforceable matter may be enforced by a party or the Commission, or both, filing it in the prescribed form in the Wellington Registry of the High Court.

    (2) The Commission may,—

    • (a) for a breach of a determination made under section 27 or a standard terms determination made under section 30M, enforce the enforceable matter only if it has received a complaint of the breach under section 156O; and

    • (b) for a breach of a designated multinetwork service determination, an approved code, a registered undertaking, an undertaking under Part 2A or 4AA, enforce the enforceable matter on its own initiative (whether or not it has received a complaint of the breach under section 156O).

    (3) An enforceable matter filed in the High Court under subsection (1) is enforceable as a judgment of the High Court in its civil jurisdiction.

    (4) An enforceable matter is enforceable in accordance with subsection (3) during the period in which the matter continues in force.

    (5) A party who has filed a determination under subsection (1) must file in the prescribed form in the High Court any clarification of the determination under section 58 or reconsideration of the determination under section 59.

    Section 156P: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 156P(2)(b): amended, on 1 July 2011, by section 87 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

156Q Remedies for breach of enforceable matter
  • (1) This section applies if an enforceable matter is filed in the High Court under section 156P(1).

    (2) On the application of the Commission, the High Court may, in addition to any other remedies available to the court, order any person to pay to the Crown any pecuniary penalty that the court determines to be appropriate if satisfied that—

    • (a) the person has committed a breach of the enforceable matter; and

    • (b) the amount of any compensatory damages that the court can award against that person for the breach is less than the value of any commercial gain resulting from the breach.

    (3) The standard of proof in any proceedings under this section is the standard of proof that applies in civil proceedings.

    (4) Proceedings under this section may be commenced within 3 years after the matter giving rise to the breach was discovered or ought reasonably to have been discovered.

    Section 156Q: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

156R Limit on amount of pecuniary penalty
  • The amount of any pecuniary penalty imposed under section 156Q(2) must not exceed the value of any commercial gain resulting from the breach of the enforceable matter, less the amount of any compensatory damages that the court decides to award against the person who has committed the breach.

    Section 156R: inserted, on 22 December 2006, by section 54 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Part 5
Miscellaneous

157AA Minister must review regulatory framework
  • (1) The Minister must, not later than 30 September 2016, commence a review of the policy framework for regulating telecommunications services in New Zealand, taking account of the market structure and technology developments and competitive conditions in the telecommunications industry at the time of the review, including the impact of fibre, copper, wireless, and other telecommunications network investment.

    (2) The review must—

    • (a) consider whether the existing regulatory framework under the Telecommunications Act 2001 is the most effective means to—

      • (i) promote competition for the long-term benefit of end-users; and

      • (ii) promote the legitimate commercial interests of access providers and access seekers; and

      • (iii) encourage efficient investment for the long-term benefit of end-users, by—

        • (A) providing investors with an expectation of a reasonable return on their investment; and

        • (B) providing sufficient regulatory stability, transparency, and certainty to enable businesses to make long-term investments; and

      • (iv) support innovation in telecommunications markets, or deregulation where sufficient competition exists; and

    • (b) assess whether alternative regulatory frameworks, including (without limitation) generic price control, would be a preferable and more effective means of achieving these outcomes.

    (3) In carrying out the review, the Minister must—

    • (a) consult with interested parties, including the Commission, industry participants, consumers, and Māori; and

    • (b) take into account—

      • (i) the extent of network coverage of services provided on fibre, copper, wireless, and other telecommunications networks; and

      • (ii) the level of investment in fibre, copper, wireless, and other telecommunications networks, and the ability of access providers to recover that investment within a reasonable period; and

      • (iii) the ability of access providers to achieve, within a reasonable period, reasonable rates of return on their investment in telecommunications networks that adequately reflect the risks assumed by those access providers when the relevant investments were made; and

      • (iv) the level of competition in relevant telecommunications markets; and

      • (v) the effects of the regulatory framework under this Act on investment in fibre, copper, wireless, and other telecommunications networks, and on outcomes for end-users; and

      • (vi) the sustainability of the regulatory framework under this Act, given developments in technology and convergence of traditional telecommunications markets; and

      • (vii) the importance of any regulatory intervention being proportionate, having regard to the problems being addressed, the size of the relevant market, and the number and size of the potentially regulated entities; and

      • (viii) developments in wireless solutions and whether they should be part of any telecommunications regulation; and

      • (ix) experience in comparable jurisdictions and economic relations with Australia, weighed against what is appropriate for New Zealand conditions and the make-up and history of New Zealand's telecommunications markets; and

      • (x) any other matters that the Minister considers relevant.

    (4) The Minister must use his or her best endeavours to ensure that the review is completed no later than 31 March 2019.

    Section 157AA: inserted, on 1 July 2011, by section 25 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

157 Regulations
  • The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:

    • (a) prescribing matters in respect of which fees are payable under this Act and the amounts of those fees:

    • (b) authorising the Commission in its discretion, or on any grounds that may be prescribed, to refund, in whole or in part, any prescribed fee that has been paid under this Act:

    • (c) prescribing forms for the purposes of this Act:

    • (ca) prescribing the form in which a civil infringement notice must be served under section 156D:

    • (cb) prescribing the amount of the pecuniary penalty that must be specified in a civil infringement notice under section 156D(2)(b) (which may not exceed $2,000):

    • (cc) prescribing the time within and the manner in which a written objection to a civil infringement notice must be made under section 156E and the information to be included in that written objection:

    • (cd) prescribing any other information that a notice published by the Commission under section 156K may contain:

    • (ce) prescribing the procedures or minimum standards to be followed by a consumer complaints adjudicator in dealing with complaints under a consumer complaints system:

    • (cf) specifying the time frames within which the procedures or minimum standards prescribed under paragraph (ce) must be followed:

    • (cg) prescribing requirements and other matters concerning the operation and administration of a consumer complaints system:

    • (ch) setting out minimum requirements for emergency call services and specifying which persons are subject to those requirements:

    • (d) providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.

    Section 157(ca): inserted, on 22 December 2006, by section 55 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 157(cb): inserted, on 22 December 2006, by section 55 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 157(cc): inserted, on 22 December 2006, by section 55 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 157(cd): inserted, on 22 December 2006, by section 55 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 157(ce): inserted, on 22 December 2006, by section 55 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 157(cf): inserted, on 22 December 2006, by section 55 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 157(cg): inserted, on 22 December 2006, by section 55 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Section 157(ch): inserted, on 22 December 2006, by section 55 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

158 Enactments amended
  • The enactments specified in Schedule 4 are amended in the manner indicated in that schedule.

159 Certain provisions in 1987 Act repealed
160 Transitional provision for declarations made under section 2A of 1987 Act
  • (1) Despite the repeal of section 2A of the 1987 Act by section 159, every declaration made under section 2A of the 1987 Act and in force immediately before the commencement of this Act continues in force and has full effect until the declaration is revoked,—

    • (a) in the case of a declaration made by Order in Council, by the Governor-General by Order in Council made on the recommendation of the Minister; or

    • (b) in the case of a declaration made by the Minister, by the Minister by notice in the Gazette.

    (2) The Minister must make a recommendation under subsection (1)(a) or revoke a declaration under subsection (1)(b) (as the case may be) if the Minister is satisfied that the network operator has ceased to provide—

    • (a) facilities for telecommunication between 10 or more other persons that enable at least 10 of those persons to communicate with each other; or

    • (b) facilities for broadcasting to 500 or more other persons that enable programmes to be transmitted along a line or lines to each of those persons.

    (3) A notice in the Gazette under subsection (1)(b) is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

    Section 160(3): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

161 Transitional provision relating to repeal of section 5C of 1987 Act
  • Despite any enactment or rule of law, any requirements under Part 2 or regulation 7 of the Telecommunications (Information Disclosure) Regulations 1999 (SR 1999/383) with which Telecom had to comply before the repeal of section 5C of the 1987 Act cease to have effect as if those regulations had not been made.


Schedule 1
Designated services and specified services

ss 4, 5, 10, 19, 29, 45, 46, 49(a), 52(a), 66–68

Part 1
Preliminary

Subpart 1Interpretation and application provisions

1 Interpretation
  • In this schedule, unless the context otherwise requires,—

    actual costs saved means the net costs saved by supplying the service on a wholesale rather than a retail basis to the access seeker

    avoided costs saved means the difference in the access provider's costs between supplying the service on a wholesale basis only and supplying the service on both a wholesale and retail basis, including a share of retail-specific fixed costs

    Chorus's local telephone exchange means a local telephone exchange (or equivalent facility) where Chorus's local loop network terminates, whether that local telephone exchange is owned and operated by Chorus or by any other person

    fixed telecommunications network means—

    • (a) any lines between a user's premises and the local telephone exchange or equivalent facility:

    • (b) any fixed PSTN:

    • (c) any telecommunications links between fixed PSTNs:

    • (d) any fixed PDN:

    • (e) any telecommunications links between fixed PDNs:

    • (f) any value-added telecommunications services associated with telecommunications services provided by those assets

    forward-looking common costs

    • (a) means those costs efficiently incurred by the service provider in providing the service that are not directly attributable to providing an additional unit to that service; but

    • (b) does not include any costs incurred by the service provider in relation to a TSO instrument

    geographically averaged price means a price that is calculated as an average of all geographically non-averaged prices for a designated service throughout the geographical extent of New Zealand

    local loop network means that part of Chorus's copper network that connects the end-user's building (or, where relevant, the building's distribution frame) to the handover point in Chorus's local telephone exchange (including where it passes through a distribution cabinet) or distribution cabinet (or equivalent facility)

    third generation cellular telephone network means a cellular telephone network based on the IMT 2000 set of radio technology standards as recognised by the International Telecommunication Union

    TSLRIC, in relation to a telecommunications service,—

    • (a) means the forward-looking costs over the long run of the total quantity of the facilities and functions that are directly attributable to, or reasonably identifiable as incremental to, the service, taking into account the service provider's provision of other telecommunications services; and

    • (b) includes a reasonable allocation of forward-looking common costs.

    Schedule 1 clause 1 Chorus's local telephone exchange: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 68 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Schedule 1 clause 1 geographically averaged price: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 68 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

    Schedule 1 clause 1 local loop network: substituted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 68 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

2 Application of Baumol-Willig rule
  • (1) To avoid doubt, the Baumol-Willig rule does not apply in respect of any applicable initial pricing principle or any applicable final pricing principle that provides for a forward-looking cost-based pricing method as a possible pricing principle.

    (2) For the purposes of subclause (1), the Baumol-Willig rule means the pricing rule known as the Baumol-Willig rule as referred to in Telecom Corporation of New Zealand Ltd v Clear Communications Ltd (1994) 6 TCLR 138, PC.

3 Application of retail price minus avoided costs saved pricing principle
  • (1) In relation to a telecommunications service, in applying an applicable initial pricing principle or an applicable final pricing principle that takes a retail price for the service and subtracts any avoided costs saved by the applicable access provider of the service, the applicable access provider is not entitled to recover any of the following things in respect of those costs that form part of the avoided costs saved associated with its retail operations:

    • (a) inefficiencies in the provision of the service giving rise to higher costs:

    • (b) profits in excess of what would represent a reasonable return (including reasonable profit) on capital invested.

    (2) Subclause (1) is for the avoidance of doubt.

4 Application of pricing principles for designated interconnection access services
  • In applying an applicable initial pricing principle or an applicable final pricing principle, the Commission may choose different pricing principles for different call types of voice and data calls (including dial-up Internet data calls) or calls with significantly different characteristics for designated interconnection access services.

4A Application of pricing principles for Chorus’s unbundled copper local loop network and Chorus’s unbundled bitstream access
  • In applying the initial pricing principle or the final pricing principle for the following designated services, the Commission must determine a geographically averaged price:

    • (a) Chorus's unbundled bitstream access service:

    • (b) Chorus's unbundled copper local loop network service.

    Schedule 1 clause 4A: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 68 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

4B Application of pricing principles for designated access services
  • In applying an applicable initial pricing principle or an applicable final pricing principle, the Commission must ensure that an access provider of a designated service does not recover costs that the access provider is recovering in the price of a designated or specified service provided under a determination prepared under section 27 or 30M or a designated or specified service provided on commercial terms.

    Schedule 1 clause 4B: inserted, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 68 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

Subpart 2Standard access principles for designated access services and specified services

5 Standard access principles for designated access services and specified services
  • The following standard access principles apply to designated access services and specified services:

    • (a) principle 1: the access provider must provide the service to the access seeker in a timely manner:

    • (b) principle 2: the service must be supplied to a standard that is consistent with international best practice:

    • (c) principle 3: the access provider must provide the service on terms and conditions (excluding price) that are consistent with those terms and conditions on which the access provider provides the service to itself:

    • (d) principle 4: the access provider must, if requested, provide an access seeker with information about a designated access service or specified service at the same level of detail, and within the same time frame, that the access provider would provide that information had it been requested by one of its own business units.

    Schedule 1 clause 5(d): added, on 22 December 2006, by section 56 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

6 Limits on application of standard access principles set out in clause 5
  • (1) Principles 1 to 4 set out in clause 5 are limited by the following factors:

    • (a) reasonable technical and operational practicability having regard to the access provider's network:

    • (b) network security and safety:

    • (c) existing legal duties on the access provider to provide a defined level of service to users of the service:

    • (d) the inability, or likely inability, of the access seeker to comply with any reasonable conditions on which the service is supplied:

    • (e) any request for a lesser standard of service from an access seeker.

    (2) Principle 4 set out in clause 5

    • (a) does not extend to any information about identifiable individual customers of the access provider; and

    • (b) is subject to the requirement that any confidential information provided to the access seeker, in accordance with that principle, must be kept confidential to that access seeker.

    Schedule 1 clause 6(1): amended, on 22 December 2006, by section 56 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

    Schedule 1 clause 6(2): added, on 22 December 2006, by section 56 of the Telecommunications Amendment Act (No 2) 2006 (2006 No 83).

Part 2
Designated services

Subpart 1Designated access services

  • (b) in the case of any other telecommunications service offered by Telecom in a bundle of retail services by means of its fixed telecommunications network, the amount calculated using the following formula:

Interconnection with a fixed PSTN
Description of service: 

Origination and termination (and their associated functions) of voice and data calls (including dial-up Internet calls) on a fixed PSTN

Conditions: Nil
Access provider: A person who operates a fixed PSTN
Access seeker: 

A service provider who seeks access to the service

Access principles: 

The standard access principles set out in clause 5

Limits on access principles: 

The limits set out in clause 6

Initial pricing principle: 

Benchmarking against interconnection prices in comparable countries that result from the application to networks that are similar to the access provider's fixed PSTN of—

  • (a) a forward-looking cost-based pricing method; or

  • (b) if the Commission considers that a forward-looking cost-based pricing method does not best give effect to the purpose set out in section 18, whichever of the following methods that the Commission considers best gives effect to that purpose:

    • (i) a pure bill and keep method; or

    • (ii) a pure bill and keep method applied to two-way traffic in balance (or to a specified margin of out-of-balance traffic) and a forward-looking cost-based pricing method applied to out-of-balance traffic (or traffic beyond a specified out-of-balance margin)

Final pricing principle: 

Either—

  • (a) TSLRIC; or

  • (b) if the Commission considers that TSLRIC does not best give effect to the purpose set out in section 18, whichever of the following methods that the Commission considers best gives effect to that purpose:

    • (i) a pure bill and keep method; or

    • (ii) a pure bill and keep method applied to two-way traffic in balance (or to a specified margin of out-of-balance traffic) and TSLRIC applied to out-of-balance traffic (or traffic beyond a specified out-of-balance margin)

Requirement referred to in section 45 for final pricing principle: 

If TSLRIC is the final pricing principle, the Commission must, by notice in writing, require the access provider to calculate the price payable for the service in accordance with TSLRIC and any regulations relating to that principle not later than the time specified in the notice

Additional matters that must be considered regarding application of section 18: 

In applying the initial pricing principle and final pricing principle, the Commission must consider—

  • (a) incentives to terminate dial-up Internet traffic and other similar one-way traffic streams must be efficient; and

  • (b) the effect of any obligation under the TSO instrument to provide price-capped unlimited calls

Retail services offered by means of a fixed telecommunications network
Description of service applicable before the expiry of 3 years from separation day: 

A retail service that satisfies both of the following:

  • (a) any of the following:

    • (i) a non-price-capped local access and calling service; or

    • (ii) a non-price-capped retail service (and its associated functions) supplying an access and calling service in a different form to the service described in subparagraph (i) (and including, for the avoidance of doubt, a service supplying ISDN digital access, or Centrex-based access or facsimile); or

    • (iii) a value-added non-price-capped retail service that is supplied in conjunction with a service described in subparagraph (i) or (ii) above or a price-capped residential local access and calling service; and

  • (b) a retail service offered by Telecom to end-users by means of a fixed telecommunications network in the following markets:

    • (i) all markets in which Telecom faces limited, or is likely to face lessened, competition for that service:

    • (ii) all, some, or no markets in which Telecom does not face limited, or is not likely to face lessened, competition for that service as determined by the Commission

Description of service applicable after the expiry of 3 years from separation day: 

A retail service that satisfies both of the following:

  • (a) either of the following:

    • (i) a non-price-capped retail service (and its associated functions) supplying an access and calling service in a different form to a local access and calling service (and including, for the avoidance of doubt, a service supplying ISDN digital access, or Centrex-based access or facsimile); or

    • (ii) a value-added non-price-capped retail service that is supplied in conjunction with a service described in subparagraph (i) above or a local access and calling service; and

  • (b) a retail service offered by Telecom to end-users by means of a fixed telecommunications network in the following markets:

    • (i) all markets in which Telecom faces limited, or is likely to face lessened, competition for that service:

    • (ii) all, some, or no markets in which Telecom does not face limited, or is not likely to face lessened, competition for that service as determined by the Commission

Access provider: Telecom
Access seeker: 

A service provider who seeks access to the service

Access principles: 

The standard access principles set out in clause 5

Limits on access principles: 

The limits set out in clause 6

Initial pricing principle: 

Either—

  • (a) retail price less a discount benchmarked against discounts in comparable countries that apply retail price minus avoided costs saved pricing in respect of these services, in the case of a service offered by Telecom in markets in which Telecom faces limited, or is likely to face lessened, competition for that service; or

  • (b) retail price less a discount benchmarked against discounts in comparable countries that apply retail price minus actual costs saved pricing in respect of these services, in the case of a service offered by Telecom in markets in which Telecom does not face limited, or lessened, competition for that service

Final pricing principle: 

Either—

  • (a) average or best retail price minus a discount comprising avoided costs saved pricing, in the case of a service offered by Telecom in markets in which Telecom faces limited, or is likely to face lessened, competition for that service; or

  • (b) average or best retail minus a discount comprising actual costs saved, in the case of a service offered by Telecom in markets in which Telecom does not face limited, or lessened, competition for that service

Requirement referred to in section 45 or final pricing principle: Nil
Additional matters that must be considered regarding application of section 18: Nil
Local access and calling service offered by means of fixed telecommunications network
Description of service applicable before the expiry of 3 years from separation day: 

A price-capped residential local access and calling service offered by Telecom to end-users by means of a fixed telecommunications network in the following markets:

  • (a) all markets in which Telecom faces limited, or is likely to face lessened, competition for the service:

  • (b) all, some, or no markets in which Telecom does not face limited, or is not likely to face lessened, competition for price-capped residential local access and calling service as determined by the Commission

Description of service applicable after the expiry of 3 years from separation day: 

A local access and calling service offered by Telecom to end-users by means of a fixed telecommunications network in the following markets:

  • (a) all markets in which Telecom faces limited, or is likely to face lessened, competition for the service:

  • (b) all, some, or no markets in which Telecom does not face limited, or is not likely to face lessened, competition for the service as determined by the Commission

Conditions applicable before the expiry of 3 years from separation day: 

That either—

  • (a) Telecom faces limited, or is likely to face lessened, competition in a market for a price-capped residential local access and calling service offered by Telecom to end-users; or

  • (b) Telecom does not face limited, or is not likely to face lessened, competition for a price-capped residential local access and calling service offered by Telecom to end-users, and the Commission has decided to require a local access and calling service to be wholesaled

Conditions applicable after the expiry of 3 years from separation day: 

That either—

  • (a) Telecom faces limited, or is likely to face lessened, competition in a market for a local access and calling service offered by Telecom to end-users; or

  • (b) Telecom does not face limited, or is not likely to face lessened, competition for a local access and calling service offered by Telecom to end-users, and the Commission has decided to require a local access and calling service to be wholesaled

Access provider: Telecom
Access seeker: 

A service provider who seeks access to the service

Access principles: 

The standard access principles set out in clause 5

Limits on access principles 

The limits set out in clause 6

Initial pricing principle applicable before the expiry of 3 years from separation day 

Telecom's standard price for its price-capped residential local access and calling service offered to end-users by means of a fixed telecommunications network in the relevant market, minus 2%

Initial pricing principle applicable after the expiry of 3 years from separation day: 

For a price-capped residential local access and calling service, either—

  • (a) Telecom’s standard price for its price-capped residential local access and calling service offered to end-users by means of a fixed telecommunications network in the relevant market, minus 2%; or

  • (b) if a person is also purchasing Chorus’s unbundled bitstream access service in relation to the relevant subscriber line, the price in paragraph (a) minus the price for Chorus’s full unbundled copper local loop network plus the relevant price (if any) in either paragraph (b) of the initial pricing principle or paragraph (b) of the final pricing principle for Chorus's unbundled copper low frequency service

  

For a non-price-capped local access and calling service, either—

  • (a) retail price less a discount benchmarked against discounts in comparable countries that apply retail price minus avoided costs saved pricing in respect of these services, in the case of a service offered by Telecom in markets in which Telecom faces limited, or is likely to face lessened, competition for that service; or

  • (b) retail price less a discount benchmarked against discounts in comparable countries that apply retail price minus actual costs saved pricing in respect of these services, in the case of a service offered by Telecom in markets in which Telecom does not face limited, or lessened, competition for that service; or

  • (c) if a person is also purchasing Chorus’s unbundled bitstream access service in relation to the relevant subscriber line, the price in paragraph (a) minus the price for Chorus’s full unbundled copper local loop network plus the relevant price (if any) in either paragraph (b) of the initial pricing principle or paragraph (b) of the final pricing principle for Chorus's unbundled copper low frequency service; or

  • (d) if a person is also purchasing Chorus’s unbundled bitstream access service in relation to the relevant subscriber line, the price in paragraph (b) minus the price for Chorus’s full unbundled copper local loop network plus the relevant price (if any) in either paragraph (b) of the initial pricing principle or paragraph (b) of the final pricing principle for Chorus's unbundled copper low frequency service

Final pricing principle applicable before the expiry of 3 years from separation day 

Telecom's standard price for its price-capped residential local access and calling service offered to end-users by means of a fixed telecommunications network in the relevant market, minus actual costs saved

Final pricing principle applicable after the expiry of 3 years from separation day: 

For a price-capped local access and calling service, either—

  • (a) Telecom’s standard price for its price-capped residential local access and calling service offered to end-users by means of a fixed telecommunications network in the relevant market, minus actual costs saved; or

  • (b) if a person is also purchasing Chorus’s unbundled bitstream access service in relation to the relevant subscriber line, the price in paragraph (a) minus the price for Chorus’s full unbundled copper local loop network plus the relevant price (if any) in either paragraph (b) of the initial pricing principle or paragraph (b) of the final pricing principle for Chorus's unbundled copper low frequency service

For a non-price-capped local access and calling service, either—

  • (a) average or best retail price minus a discount comprising avoided costs saved pricing, in the case of a service offered by Telecom in markets in which Telecom faces limited, or is likely to face lessened, competition for that service; or

  • (b) average or best retail price minus a discount comprising actual costs saved, in the case of a service offered by Telecom in markets in which Telecom does not face limited, or is not likely to face lessened, competition for that service; or

  • (c) if a person is also purchasing Chorus’s unbundled bitstream access service in relation to the relevant subscriber line, the price in paragraph (a) minus the price for Chorus’s full unbundled copper local loop network plus the relevant price (if any) in either paragraph (b) of the initial pricing principle or paragraph (b) of the final pricing principle for Chorus's unbundled copper low frequency service; or

  • (d) if a person is also purchasing Chorus’s unbundled bitstream access service in relation to the relevant subscriber line, the price in paragraph (b) minus the price for Chorus’s full unbundled copper local loop network plus the relevant price (if any) in either paragraph (b) of the initial pricing principle or paragraph (b) of the final pricing principle for Chorus's unbundled copper low frequency service

Requirement referred to in section 45 or final pricing principle: 

Nil

Additional matters that must be considered regarding application of section 18: 

Nil

Retail services offered by means of a fixed telecommunications network as part of bundle of retail services
Description of service: 

A retail service that—

  • (a) is, or has previously been, offered separately by Telecom to end-users by means of a fixed telecommunications network; and

  • (b) is offered by Telecom to end-users as part of a bundle of retail services—

    • (i) in markets in which Telecom faces limited, or is likely to face lessened, competition for that service; and

    • (ii) if the effect of the bundled price is likely to significantly reduce the ability of an efficient rival to contest the market

Conditions: Nil
Access provider: Telecom
Access seeker: 

A service provider who seeks access to the service

Access principles: 

The standard access principles set out in clause 5

Limits on access principles: 

The limits set out in clause 6

Initial pricing principle: 

The wholesale price for the retail service is—

  • (a) in the case of Telecom's price-capped residential access and calling service, the amount calculated using the following formula:

    .

where—

  • a is the imputed retail price for the service. The imputed retail price must—

    • (i) be based on the observed discount of the bundle relative to the total price of the services offered separately; and

    • (ii) take into account any price difference that arises from the lower cost of providing the services as a bundle, the lower cost of quantity supply, any difference in the cost of providing the services between different markets, and from any other difference in cost

  • b is a 2% discount

  • c is the wholesale price

.

where—

  • a is the imputed retail price for the service. The imputed retail price must—

    • (i) be based on the observed discount of the bundle relative to the total price of the services offered separately; and

    • (ii) take into account any price difference that arises from the lower cost of providing the services as a bundle, the lower cost of quantity supply, any difference in the cost of providing the services between different markets, and from any other difference in cost

  • b is the discount (as a percentage) off the imputed retail price for the service. The discount must be benchmarked against discounts applied to comparable retail services in comparable countries that apply retail price minus avoided costs saved or equivalent pricing

  • c is the wholesale price

Final pricing principle: 

The wholesale price for the retail service is the amount calculated using the following formula:

a − b = c

where—

a
is the imputed retail price for the service. The imputed retail price must—
  • (a) be based on the observed discount of the bundle relative to the total price of the services offered separately; and

  • (b) take into account any price difference that arises from the lower cost of providing the services as a bundle, the lower cost of quantity supply, any difference in the cost of providing the services between different markets, and from any other difference in cost

b
is the discount off the imputed retail price for the service. The discount must be determined by using,—
  • (a) in the case of a non price-capped service offered by Telecom in markets in which Telecom faces limited, or is likely to face lessened, competition for that service, avoided costs saved pricing; or

  • (b) in the case of Telecom's price-capped residential access and calling service in which Telecom faces limited, or is likely to face lessened, competition for that service, actual costs saved pricing

c
is the wholesale price
Requirement referred to in section 45 for final pricing principle: NilAdditional matters that must be considered regarding application of section 18: NilChorus's unbundled bitstream accessDescription of service

A digital subscriber line enabled service (and its associated functions, including the associated functions of operational support systems) that enables access to, and interconnection with, that part of a fixed PDN that connects the end-user’s building (or, where relevant, the building’s distribution frame) to a first data switch (or equivalent facility), other than a digital subscriber line access multiplexer (DSLAM)

To avoid doubt, unless otherwise requested by the access seeker, the supply of this service must not be conditional on a requirement that the access seeker, end-users, or any other person must purchase any other service from the access provider

Conditions

That either—

  • (a) Chorus faces limited, or is likely to face lessened, competition in a relevant market; or

  • (b) Chorus does not face limited, or is not likely to face lessened, competition in a relevant market, and the Commission has decided to require Chorus’s unbundled bitstream access to be wholesaled in that market

Access provider

Chorus

Access seeker

A service provider who seeks access to the service

Access principles

The standard access principles set out in clause 5

Limits on access principles

The limits set out in clause 6 and the additional limit that Chorus is only required to provide access to the trunk side of the first data switch or equivalent facility (for which purpose a DSLAM is not an equivalent facility)

Initial pricing principle applicable before the expiry of 3 years from separation day

Retail price (as imputed by the Commission, having regard to the price of any other digital subscriber line enabled service, including the imputed price of any such service offered as part of a bundle of retail services) minus a discount benchmarked against discounts in comparable countries that apply retail price minus avoided costs saved pricing in respect of the service

Plus, if no person is also purchasing a local access and calling service from Telecom in relation to the relevant subscriber line, all or any of the costs of Chorus's local loop network that would usually be recovered by Telecom from an end-user of its local access and calling service, as determined by benchmarking against comparable countries (unless the Commission considers that the price already takes into account all of the relevant costs)

Initial pricing principle applicable after the expiry of 3 years from separation day

The price for the designated access service entitled Chorus's unbundled copper local loop network plus benchmarking additional costs incurred in providing the unbundled bitstream access service against prices in comparable countries that use a forward-looking cost-based pricing method

Final pricing principle applicable before the expiry of 3 years from separation day

Either—

  • (a) retail price (as imputed by the Commission, having regard to the price of any other digital subscriber line enabled service, including the imputed price of any such service offered as part of a bundle of retail services) minus a discount comprising avoided costs saved, in a case where Chorus faces limited, or is likely to face lessened, competition in a relevant market; or

  • (b) retail price (as imputed by the Commission, having regard to the price of any other digital subscriber line enabled service, including the imputed price of any such service offered as part of a bundle of retail services) minus a discount comprising actual costs saved, in a case where Chorus does not face limited, or lessened, competition in a relevant market

Plus, in either case, if no person is also purchasing a local access and calling service from Telecom in relation to the relevant subscriber line, all or any of the costs of Chorus's local loop network that would usually be recovered by Telecom from an end-user of its local access and calling service, as determined by identifying the relevant costs (unless the Commission considers that the price already takes into account all of the relevant costs)

Final pricing principle applicable after the expiry of 3 years from separation day

The price for Chorus’s unbundled copper local loop network plus TSLRIC of additional costs incurred in providing the unbundled bitstream access service

Requirement referred to in section 45 or final pricing principle

Nil

Additional matters that must be considered regarding application of section 18

The Commission must consider relativity between this service and Chorus’s unbundled copper local loop network service (to the extent that terms and conditions have been determined for that service)

Chorus's unbundled bitstream access backhaulDescription of service

A service (and its associated functions, including the associated functions of operational support systems) that provides transmission capability (whether the transmission capacity is copper, fibre, or anything else) between the trunk side of a first data (or equivalent facility), other than a DSLAM, that is connected to the end-user’s building (or, where relevant, the building’s distribution frame) and the access seeker’s nearest available point of interconnection

Conditions

That either—

  • (a) Chorus faces limited, or is likely to face lessened, competition in a market for transmission capacity between the first data switch (or equivalent facility) and the access seeker’s nearest available point of interconnection; or

  • (b) Chorus does not face limited, or is not likely to face lessened, competition in a market for transmission capacity between the first data switch (or equivalent facility) and the access seeker's nearest available point of interconnection, and the Commission has decided to require Chorus’s unbundled bitstream access to be wholesaled in that market

Access provider

Chorus

Access seeker

A service provider who seeks access to the service

Access principles

The standard access principles set out in clause 5

Limits on access principles

The limits set out in clause 6

Initial pricing principle

Benchmarking against prices for similar services in comparable countries that use a forward-looking cost-based pricing method

Final pricing principle

TSLRIC

Requirement referred to in section 45 or final pricing principle

Nil

Additional matters that must be considered regarding application of section 18

Nil

Chorus's unbundled copper local loop networkDescription of service

A service (and its associated functions, including the associated functions of operational support systems) that enables access to, and interconnection with, Chorus's copper local loop network (including any relevant line in Chorus's local telephone exchange or distribution cabinet)

Conditions

Nil

Access provider

Chorus

Access seeker

A service provider who seeks access to the service, except, until 3 years after separation day, Telecom

Access principles

The standard access principles set out in clause 5

Limits on access principles

The limits set out in clause 6

Initial pricing principle

Benchmarking against prices for similar services in comparable countries that use a forward-looking cost-based pricing method

Final pricing principle

TSLRIC

Requirement referred to in section 45 or final pricing principle

Nil

Additional matters that must be considered regarding application of section 18

The Commission must consider relativity between this service and Chorus's unbundled bitstream access service (to the extent that the terms and conditions have been determined for that service)

Chorus's unbundled copper local loop network co-locationDescription of service

A service (and its associated functions, including the associated functions of operational support systems) that provides co-location facilities for an access seeker’s equipment, and access to the handover point, at Chorus’s local telephone exchange or distribution cabinet (or equivalent facility) for the purposes of providing access to, and interconnection with,—

  • (a) Chorus’s unbundled copper local loop network (including any necessary supporting equipment); and

  • (b) Chorus’s unbundled copper low frequency service (including any necessary supporting equipment)

To avoid doubt, the same instance of this service can be used to support both Chorus’s unbundled copper local loop network and Chorus’s unbundled copper low frequency service

To avoid doubt, access seeker equipment includes the equipment of any person other than the access seeker (including any line) if that equipment is being used to support the provision of backhaul for the access seeker

To avoid doubt, this service includes access to, and the use of, space in, on, or around Chorus’s local telephone exchange or distribution cabinet (or equivalent facility) for the purposes of installing and maintaining the access seeker’s equipment

Conditions: 

Nil

Access provider

Chorus

Access seeker

A service provider who seeks access to the service

Access principles

The standard access principles set out in clause 5

Limits on access principles

The limits set out in clause 6 and the additional limit of the interests of other service providers who are co-located in the relevant facilities

Initial pricing principle

Benchmarking against prices for similar services in comparable countries that use a forward-looking cost-based pricing method

Final pricing principle

TSLRIC

Requirement referred to in section 45 or final pricing principle

Nil

Additional matters that must be considered regarding application of section 18

Nil

Chorus's unbundled copper local loop network backhaul (distribution cabinet to telephone exchange)Description of service

A service (and its associated functions, including the associated functions of operational support systems) that provides transmission capacity in a network (whether the transmission capacity is copper, fibre, or anything else) between the handover point in Chorus’s distribution cabinet (or equivalent facility) and the handover point in Chorus’s local telephone exchange for the purposes of providing access to, and interconnection with, Chorus’s unbundled copper local loop network (including any necessary supporting equipment)

Conditions

Nil

Access provider

Chorus

Access seeker

A service provider who seeks access to the service

Access principles

The standard access principles set out in clause 5

Limits on access principles

The limits set out in clause 6

Initial pricing principle

Benchmarking against prices for similar services in comparable countries that use a forward-looking cost-based pricing method

Final pricing principle

TSLRIC

Requirement referred to in section 45 or final pricing principle

Nil

Additional matters that must be considered regarding application of section 18

Nil

Chorus's unbundled copper local loop network backhaul (telephone exchange to interconnect point)Description of service

A service (and its associated functions, including the associated functions of operational support systems) that provides transmission capacity in a network (whether the transmission capacity is copper, fibre, or anything else) between the handover point in Chorus’s local telephone exchange and the access seeker’s nearest available point of interconnection for the purposes of providing access to, and interconnection with,—

  • (a) Chorus’s unbundled copper local loop network (including any necessary supporting equipment); and

  • (b) Chorus’s unbundled copper low frequency service (including any necessary supporting equipment)

To avoid doubt, the same instance of this service can be used to support both Chorus’s unbundled copper local loop network and Chorus’s unbundled copper low frequency service

Conditions

That either—

  • (a) Chorus faces limited, or is likely to face lessened, competition in a market for transmission capacity between Chorus’s local telephone exchange and the access seeker’s nearest available point of interconnection; or

  • (b) Chorus does not face limited, or is not likely to face lessened, competition in a market for transmission capacity between Chorus’s local telephone exchange and the access seeker’s nearest available point of interconnection, and the Commission has decided to require Chorus’s unbundled copper local loop network backhaul (telephone exchange to interconnect point) to be wholesaled in that market

Access provider

Chorus

Access seeker

A service provider who seeks access to the service

Access principles

The standard access principles set out in clause 5

Limits on access principles

The limits set out in clause 6

Initial pricing principle

Benchmarking against prices for similar services in comparable countries that use a forward-looking cost-based pricing method

Final pricing principle

TSLRIC

Requirement referred to in section 45 or final pricing principle

Nil

Additional matters that must be considered regarding application of section 18

Nil

Chorus's unbundled copper low frequency serviceDescription of service

A service (and its associated functions, including the associated functions of operational support systems) that enables access to, and interconnection with, the low frequency (being the frequency band between 300 and 3400 Hz) in Chorus’s copper local loop network (including any relevant line in Chorus's local telephone exchange or distribution cabinet) that connects the end-user's building (or, where relevant, the building’s distribution frame) to the handover point in Chorus’s local telephone exchange

Conditions 

Chorus's unbundled copper low frequency service is only available where Chorus's local loop that connects the end-user's building (or, where relevant, the building's distribution frame) to the handover point in Chorus's local telephone exchange remains in place

To avoid doubt, there is no obligation on Chorus that Chorus's copper network that connects a cabinet (or equivalent facility) and Chorus's local telephone exchange remain in place or be maintained if that part of Chorus's copper network is only being used to provide Chorus's unbundled copper low frequency services

Access provider

Chorus

Access seeker

A service provider who seeks access to the service

Access principles

The standard access principles set out in clause 5

Limits on access principles

The limits set out in clause 6

Initial pricing principle

Either—

  • (a) the geographically averaged price for Chorus’s full unbundled copper local loop network; or

  • (b) if a person is also purchasing Chorus’s unbundled bitstream access service in relation to the relevant subscriber line, the cost of any additional elements of Chorus’s local loop network that are not recovered in the price for Chorus’s unbundled bitstream access service

Final pricing principle

Either—

  • (a) the geographically averaged price for Chorus’s full unbundled copper local loop network; or

  • (b) if a person is also purchasing Chorus’s unbundled bitstream access service in relation to the relevant subscriber line, the TSLRIC of any additional elements of Chorus’s local loop network that are not recovered by the price for Chorus’s unbundled bitstream access service

Requirement referred to in section 45 or final pricing principle

Nil

Additional matters that must be considered regarding application of section 18

Nil

Mobile termination access services (MTAS)Description of service: 

Termination (and its associated functions) on a cellular mobile telephone network of any, or any combination, of the following:

  • (a) voice calls originating on a fixed telephone network:

  • (b) voice calls originating on another cellular mobile telephone network:

  • (c) short-message-service (SMS) originating on another cellular mobile telephone network

For the avoidance of doubt, these services include the termination of internationally originated voice calls and SMS, and voice-over-Internet-protocol-originated voice calls, where these are handed over at a mobile switching centre in New Zealand

Conditions: 

Nil

Access provider: 

A person who operates a cellular mobile telephone network

Access seeker: 

A service provider who seeks access to the service

Access principles: 

The standard access principles set out in clause 5

Limits on access principles: 

The limits set out in clause 6

Initial pricing principle: 

Benchmarking against the costs of providing similar services in comparable countries that result from the application of—

  • (a) a forward-looking cost-based methodology; or

  • (b) if the Commission considers that a forward-looking cost-based methodology does not best give effect to the purpose set out in section 18, whichever of the following methods that the Commission considers best gives effect to that purpose:

    • (i) a pure bill and keep method; or

    • (ii) a pure bill and keep method applied to two-way traffic in balance (or to a specified margin of out-of-balance traffic) and a forward-looking cost-based methodology applied to out-of-balance traffic (or traffic beyond a specified out-of-balance margin)

Final pricing principle: 

Either—

  • (a) TSLRIC; or

  • (b) if the Commission considers that TSLRIC does not best give effect to the purpose set out in section 18, whichever of the following methods that the Commission considers best gives effect to that purpose:

    • (i) a pure bill and keep method; or

    • (ii) a pure bill and keep method applied to two-way traffic in balance (or to a specified margin of out-of-balance traffic) and TSLRIC applied to out-of-balance traffic (or traffic beyond a specified out-of-balance margin)

Requirement referred to in section 45 for final pricing principle: 

Nil

Additional matters that must be considered regarding the application of section 18: 

Nil

  • Schedule 1 Part 2 subpart 1: amended, on 30 November 2011 (being the date of separation day, and an Order in Council (SR 2011/302) having been made under section 36), by section 68 of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 (2011 No 27).

  • Schedule 1 Part 2 subpart 1: amended, on 30 June 2011, by clause 3(2) of the Telecommunications (Retail Services and Bundle of Retail Services) Order 2011 (SR 2011/200).

  • Schedule 1 Part 2 subpart 1: amended, on 23 September 2010, by clause 3 of the Telecommunications (Mobile Termination Access Services) Order 2010 (SR 2010/262).

Subpart 2Designated multinetwork services

Local telephone number portability service
Description of service: 

A service that enables an end-user of a fixed telephone network service to change providers of that service but to retain the same telephone number within a local calling area

Conditions: Nil
Access provider: 

Every person who operates—

  • (a) a PSTN to which numbers have been allocated; an