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

(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.

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—

  • (i) prescribed by regulations (section 69):

  • (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.

In this Act, unless the context otherwise requires,—

(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.

(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.

This Act binds the Crown.

(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.

(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.

(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).

(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.

(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.

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.

(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.

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]

• (d) section 15 (except as provided in section 10(4) of this Act) (meetings of Commission):

• (e) [Repealed]

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

• (g) subject to section 16, sections 98A and 98G (Commission's powers of search and seizure):

• (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):

• (k) sections 101 (notices) and 102 (service of notices):

• (l) section 103 (offences):

• (m) section 104 (determinations of Commission):

• (n) [Repealed]

• (o) section 106 (proceedings privileged):

• (p) section 106A (judicial notice):

• (q) section 109 (Commission may prescribe forms).

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:

  • (i) committed an offence against section 46(1)(b) or (c) or section 82(1) of this Act:

  • (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.

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.

(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.

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.

(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.

(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.

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.

(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.

(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.

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.

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.

(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.

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.

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.

(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.

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.

(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.

(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.

In this subpart,—

(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.

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.

(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.

(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—

• (a) section 30G; and

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

(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.

(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—

• (a) section 30G; and

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

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.

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.

(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.

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.

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.

(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).

(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.

(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.

A standard terms determination must not include an expiry date for the 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.

(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.

(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.

(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.

(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.

(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).

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.

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.

(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.

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.

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.

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.

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.

(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.

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.

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.

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.

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.

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.

(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.

(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.

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.

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.

(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.

(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:

• (a) to notify any party to a determination under section 34(a):

• (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).

(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.

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.

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.

(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.

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.

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.

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.

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.

(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.

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.

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.

(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

• (c) determine any costs under sections 55 and 56.

(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

• (b) by way of a levy under section 11; or

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

(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.

(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.

(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).

(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.

(1) Subject to subsection (2), a party to a determination made under this Part may appeal to the High Court against—

• (a) a direction of the Commission under section 55 or section 56(2):

• (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]

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).

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.

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.

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.

(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).

(1) Schedule 3A applies if Schedule 3 applies.

(2) However, Schedule 3A does not limit Schedule 3.

(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.

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.

In this Part, unless the context otherwise requires,—

In this subpart, unless the context otherwise requires,—

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.

(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 and customer information.

(2) Telecom and Chorus must not enter into a sharing arrangement unless the arrangement meets the requirements in subsection (1).

(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.

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.

(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.

(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).

(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.

(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.

(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.

(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.

(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 regulation for the purposes of the Regulations (Disallowance) Act 1989 but not for the purposes of the Acts and Regulations Publication Act 1989.

(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.

(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.

(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 receiving 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.

(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.

(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.

(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.

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.

(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.

(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.

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.

(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.

In this subpart, unless the context otherwise requires,—