New Zealand telecom law reform has plenty to consider

The New Zealand Government has given telecommunications users plenty to chew on with its discussion paper towards reform of the Telecommunication Act 2001 released this month.

The paper is the first material step towards reforms promised by Communications Minister Paul Swain. As expected, considerable emphasis is paid to ensuring prompt access by one telecommunication company and its users to services opened up by another telco, and prompt implementation of a service once it is announced.

The process of attaining access is complicated, as it was with Telecom’s unbundled bitstream service, by the appearance simultaneously in the market of a unilateral “commercial” offering and a version regulated by the Telecommunications Commissioner.

“Smaller access seekers may be faced with a choice between waiting for a larger provider to conclude a regulated outcome by way of a Commission determination which can then be used as a benchmark agreement, or reducing uncertainty by reaching a commercial agreement on less advantageous terms.”

As one possible strategy a “reference offer” scheme is advanced for comment. Such a set of terms for a new service would be prepared in advance by providers, with the help of the Commissioner. “Once approved, the offer would provide a set of minimum terms that the access provider would be obliged to provide to an access seeker,” the paper says.

Ways of improving enforceability of access “codes” drawn up by the Telecommunications Carriers’ Forum and resolving the somewhat contradictory role of these as against determinations by the Commissioner have also been put out for comment, as have suggested mechanisms for altering or extending the terms of a service already provided.

Difficulties in the influence the Minister of Communications can have on the Commissioner’s determination are another bone of contention. The strictures on this relationship emerged with the local-loop unbundling decision.

“The Act provides that the Minister can either, accept, reject or ask the Commission to reconsider its recommendations, but does not provide for the Minister clarifying points contained in the Commission’s report, including economic and technical clarifications.

“It is important that the Minister, as decision-maker, is able to discuss the recommendations with the Commission, including asking for further information from the Commission to better understand the recommendations, should it be required. This could be achieved by a inserting a provision to enable the Minister to seek written clarifications on specific matters in a final report from the Commission,” the discussion paper suggests.

The need to clarify definitions regarding TSO liability is also flagged. In the most recent TSO conference, the interpretation of certain ambiguous phrases was exhaustively debated.

The deadline for submissions on the paper is February 4, 2005. Cross-submissions will them be invited, with final wrap-up and presentation to Cabinet scheduled for next May.

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