Telecommunications Act 2001

1: Title
This Act is the Telecommunications Act 2001.
1: Preliminary
1: General
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
b: telecommunications services that are regulated are contained in Schedule 1 Part 2 Part 3
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
d: provisions concerning determinations by the Commission in respect of those regulated telecommunications services are set out in subparts 2 to 5
e: provisions about altering regulated telecommunications services are set out in subpart 6 Schedules 3 3A
ea: provisions concerning the structural separation of Telecom are set out in Part 2A
eb:
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
g: provisions from Parts 1 1A Part 4
i: network operators and connection to, and misuse of, a network ( subpart 1
ii: maintenance of networks ( subpart 2
gaaa: subpart 3 see also Schedule 3C
gaab: subpart 4
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
ga: enforcement provisions are set out in Part 4A
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
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 Schedule 4 Section 4(c)﻿(ii) amended 22 December 2006 section 4(1) Telecommunications Amendment Act (No 2) 2006 Section 4(e) amended 22 December 2006 section 4(2) Telecommunications Amendment Act (No 2) 2006 Section 4(ea) substituted 30 November 2011 section 36 section 61 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 4(eb) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 4(gaaa) inserted 9 June 2017 section 4 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 4(gaab) inserted 3 May 2017 section 4 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 4(gaa) inserted 1 July 2011 section 88 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 4(ga) inserted 22 December 2006 section 4(4) Telecommunications Amendment Act (No 2) 2006 Section 4(gb) inserted 22 December 2006 section 4(4) Telecommunications Amendment Act (No 2) 2006
5: Interpretation
In this Act, unless the context otherwise requires,— 1987 Act Telecommunications Act 1987 access provider
a: means, in relation to a designated service or specified service, the person named or described in Part 2 Part 3
b: means, in relation to a service that is supplied under a registered undertaking, the person that provided the undertaking under Schedule 3A ; and
c: means, in relation to a fibre fixed line access service, the regulated fibre service provider who provides the service access seeker
a: means, in relation to a designated service or specified service, the person named or described in Part 2 Part 3
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 ; and
c: means, in section 155ZZD
d: means, in relation to a fibre fixed line access service, a person who seeks access to the service from the regulated fibre service provider annual CPI adjustment
a: the CPI for the quarter that ended most recently before the price adjustment; and
b: the CPI for the equivalent quarter in the preceding year applicable access principles subpart 1 Part 3 applicable conditions Part 2 Part 3 applicable final pricing principle subpart 1 applicable initial pricing principle subpart 1 appropriation period
a: a financial year; or
b: if the cost will be incurred under the authority of a multi-year appropriation or of a multi-year appropriation proposed in any Estimates, the financial years to which the multi-year appropriation applies approved code
a: means a telecommunications access code that has been approved by the Commission under clause 9 clause 10
b: includes any amendment to an approved code that has been approved under either of those clauses auditor's report section 83(b) broadcasting the same meaning as in section 2(1) Commission section 8 Commission 111 contact code section 238 Commission code
a: a Commission 111 contact code:
b: a Commission retail service quality code Commission retail service quality code Commission RSQ code Part 7 Commission’s Internet site computer record section 116(2) copper fixed line access services subpart 1
a: Chorus’s unbundled bitstream access:
b: Chorus’s unbundled copper low frequency service CPI means the Consumers Price Index (all groups) published by Statistics New Zealand or, if that index ceases to be published, any measure certified by the Government Statistician as being equivalent to that index deemed TSO instrument section 71 designated access service subpart 1 designated multinetwork service subpart 2 designated service document section 69XQ section 2(1) draft code
a: means a draft telecommunications access code prepared by the Forum under clause 1
b: includes a proposed amendment to, or proposed revocation of, an approved code eligible person
a: registered with the Commission for the purpose of voting on a draft code under clause 4
b: a member of the Forum end-user Estimates
a: Estimates as defined in section 2(1)
b: Supplementary Estimates as defined in section 2(1) 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 but
b:
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 ; and
d: in subpart 4 section 155ZS fibre fixed line access service
a: means a telecommunications service that enables access to, and interconnection with, a regulated fibre service provider’s fibre network; but
b: does not include the following:
i: a telecommunications service provided by a regulated fibre service provider ( F section 69U
ii: a telecommunications service provided, in any part other than a part located within an end-user’s premises or building, over a copper line:
iii: a telecommunications service used exclusively in connection with a service described in paragraph (ii) fibre handover point fibre network fibre-to-the-premises access network section 156AB financial 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 Forum clause 4 implementation date
a: 1 January 2020; and
b: any date specified by the Minister in accordance with clause 9 industry retail service quality code industry RSQ code liability allocation determination section 87(1)﻿(a) liable 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 Local Government Act 2002 Minister Ministry multi-year appropriation see section 10 net cost
a: in relation to an instrument that is declared to be a TSO instrument under section 70
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 network network operator
a: section 105
b: section 2A party parties
a: for a determination made under section 27
b: for a standard terms determination made under section 30M section 39 Schedule 2
c: for a registered undertaking under Schedule 3A PDN public data network price subpart 6
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 clause 8(1)﻿(b) proposed alteration clause 1(1) proposed omission clause 8(1)﻿(a) PSTN public switched telephone network PTN 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 section 6 qualified auditor qualified revenue and excluding any amount under section 85A
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 registered undertaking clause 1 regulated fibre service provider section 226
a: information disclosure regulation:
b: price-quality regulation retail service quality
a: customer service and fault service levels:
b: installation issues:
c: contract issues:
d: product disclosure:
e: billing:
f: the switching process and related information:
g: service performance, speed, and availability retail service quality code road
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 Part 4AA Spark
a: means Spark New Zealand Limited (the company previously known, before 8 August 2014, as Telecom); and
b: includes any of its subsidiaries specified amount section 71A specified fibre area section 69AB specified point of interconnection section 231 specified service Part 3 subsidiary sections 5 6 Telecom
a: means Telecom Corporation of New Zealand Limited; and
b: includes any of its subsidiaries telecommunication telecommunication link telecommunications access code section 7(1) Telecommunications Commissioner section 9(3) telecommunications service telephone device TSO telecommunications service obligations TSO charges section 94L(1) TSO cost allocation determination sections 87 to 91 TSO cost calculation determination section 94J(1)﻿(a) TSO instrument telecommunications service obligation instrument
a: an instrument that is declared to be a TSO instrument under section 70
b: a deemed TSO instrument TSO provider telecommunications service obligation provider UFB initiative
a: 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; and
b: includes—
i: the extension to that programme known as UFB 2, to develop fibre-to-the-premises networks connecting at least 80% of New Zealand households (which, to avoid doubt, includes the extension to UFB 2 known as UFB 2+); and
ii: any other extension to the programme wireless works working day
a: a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, Te Rā Aro ki a Matariki/Matariki Observance Day, and Labour 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
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. 1987 No 116 s 2(1), (1A) Section 5 access provider substituted 22 December 2006 section 5(1) Telecommunications Amendment Act (No 2) 2006 Section 5 access provider amended 13 November 2018 section 4(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 access provider inserted 13 November 2018 section 4(3) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 access seeker substituted 22 December 2006 section 5(2) Telecommunications Amendment Act (No 2) 2006 Section 5 access seeker amended 13 November 2018 section 4(4) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 access seeker inserted 13 November 2018 section 4(5) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 access seeker inserted 13 November 2018 section 4(5) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 annual CPI adjustment inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 appropriation period inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 chief executive repealed 13 November 2018 section 4(8) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 Commission 111 contact code inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 Commission code inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 Commission retail service quality code Commission RSQ code inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 Commission’s Internet site inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 5 constitution of Telecom repealed 1 July 2011 section 4(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 copper fixed line access services inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 CPI replaced 1 September 2022 section 107(1) Data and Statistics Act 2022 Section 5 document inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 Estimates inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 existing residential line inserted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 existing works substituted 17 May 2005 section 3(1) Telecommunications Amendment Act 2005 Section 5 existing works amended 13 November 2018 section 39(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 existing works repealed 13 November 2018 section 39(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 existing works amended 3 May 2017 section 5(1) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 5 existing works inserted 3 May 2017 section 5(2) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 5 fibre fixed line access service inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 fibre handover point inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 fibre network inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 fibre-to-the-premises access network inserted 1 July 2011 section 88 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 financial year substituted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 implementation date inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 industry retail service quality code industry RSQ code inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 KSO repealed 1 July 2011 section 4(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 liability allocation determination inserted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 liable person substituted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 liable person's TSO-qualified revenue repealed 1 July 2011 section 4(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 local authority substituted 1 July 2003 section 262 Local Government Act 2002 Section 5 local loop network repealed 22 December 2006 section 5(6) Telecommunications Amendment Act (No 2) 2006 Section 5 Ministry inserted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 multi-year appropriation inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 net cost substituted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 net cost substituted 30 November 2011 section 36 section 52(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 net cost added 30 November 2011 section 36 section 52(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 net revenue inserted 30 November 2011 section 36 section 52(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 network operator amended 30 November 2011 section 36 section 63(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 original KSO repealed 1 July 2011 section 4(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 party parties substituted 22 December 2006 section 5(7) Telecommunications Amendment Act (No 2) 2006 Section 5 party parties amended 13 November 2018 section 39(3) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 price substituted 30 November 2011 section 36 section 62 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 PTN public telecommunications network inserted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 qualified revenue inserted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 qualified revenue amended 13 November 2018 section 4(6) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 registered undertaking inserted 22 December 2006 section 5(8) Telecommunications Amendment Act (No 2) 2006 Section 5 regulated fibre service provider inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 retail service quality inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 retail service quality code inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 service provider amended 1 July 2011 section 88 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 Spark inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 specified amount amended 22 December 2006 section 5(9) Telecommunications Amendment Act (No 2) 2006 Section 5 specified fibre area inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 specified point of interconnection inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 telecommunication replaced 13 November 2018 section 4(7) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 TSO charges inserted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 TSO cost calculation determination substituted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 TSO instrument telecommunications service obligation instrument substituted 1 July 2011 section 4(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 TSO provider telecommunications service obligation provider inserted 22 December 2006 section 5(11) Telecommunications Amendment Act (No 2) 2006 Section 5 TSO provider's TSO-qualified revenue repealed 1 July 2011 section 4(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 TSP telecommunications service provider repealed 22 December 2006 section 5(11) Telecommunications Amendment Act (No 2) 2006 Section 5 UFB initiative inserted 13 November 2018 section 4(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 5 wireless works inserted 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 5 working day replaced 12 April 2022 wehenga 7 Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022 section 7 Te Kāhui o Matariki Public Holiday Act 2022 Section 5 working day replaced 1 January 2014 section 8 Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 Section 5 working day inserted 1 January 2014 section 8 Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013
6: Public notice
1: If, under this Act, the Commission is required to give public notice of a matter, the Commission must—
a: notify the matter in the Gazette
b: at all reasonable times, ensure that the full text of the matter is available on the Commission’s Internet site
2: A notification of a matter for the purpose of subsection (1)﻿(a) must include—
a: the text of the matter; or
b: a summary of the text and a description of where the full text may be viewed on the Internet (for example, an Internet link).
3: If a provision of this Act refers to the date on which public notice of a matter is given, the relevant date is the date of its notification in the Gazette
4: Despite subsections (1) and (2), nothing in this Act requires the Commission to include in a 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. Section 6 replaced 13 November 2018 section 5 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 6(1)﻿(b) amended 28 October 2021 section 3 Secondary Legislation Act 2021
7: Telecommunications access codes
1: In this Act, telecommunications access code
a: designated services or specified services:
b: services supplied under a registered undertaking.
2: Schedule 2 Section 7(1) substituted 22 December 2006 section 6 Telecommunications Amendment Act (No 2) 2006
7A: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA Section 7A inserted 3 May 2017 section 6 Telecommunications (Property Access and Other Matters) Amendment Act 2017
8: Act binds the Crown
This Act binds the Crown.
2: Commerce 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)
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)
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 Section 9(2) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 9(3A) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 9(6) substituted 25 January 2005 section 200 Crown Entities Act 2004
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 monitor compliance with the Commission 111 contact code; and
d: must make available reports, summaries, and information about the things referred to in paragraphs (a) to (c); and
e: must monitor retail service quality in relation to telecommunications services; and
f: must make available reports, summaries, and information about retail service quality in a way that informs consumer choice.
2: The functions in subsection (1)﻿(d) and (f) do not require the Commission to release all documents that the Commission produces or acquires under this section or section 10A Section 9A replaced 13 November 2018 section 25 Telecommunications (New Regulatory Framework) Amendment Act 2018
10: Performance of Commission's functions
1: Subject to subsection (2) and sections 15 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
ii: make every pricing review determination under section 51
iii: make every liability allocation determination under section 87
iv: make every TSO cost calculation determination under section 94J
v: make every determination in respect of fibre fixed line access services under Part 6
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 sections 66 67 clause 4
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 or more chairperson and those other
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
b: every reference in this Act to the Telecommunications Commissioner must, unless the context otherwise requires, be read as a reference to the chairperson
3: The chairperson
4: The quorum requirements in section 15(4) section 10(1)﻿(c)﻿(i) Section 10(1)﻿(a) substituted 1 July 2011 section 5 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 10(1)﻿(a)﻿(v) inserted 13 November 2018 section 17(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 10(1)﻿(ab) inserted 1 July 2011 section 5 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 10(1)﻿(b) substituted 1 July 2011 section 5 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 10(1)﻿(c)﻿(ii) amended 13 November 2018 section 17(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 10(1)﻿(c)﻿(ii) amended 13 November 2018 section 17(3) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 10(1)﻿(c)﻿(ii) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 10(2)﻿(a) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 10(2)﻿(b) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 10(3) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 10(4) added 25 January 2005 section 200 Crown Entities Act 2004
10A: Power to require supply of information to support functions of monitoring and reporting on retail service quality
For the purpose of carrying out its functions under section 9A(1)﻿(e) and (f)
a: prepare and produce forecasts, forward plans, historical information, or other information; and
b: apply any methodology or format specified by the Commission in the preparation of forecasts, forward plans, historical information, or other information. Section 10A inserted 13 November 2018 section 26 Telecommunications (New Regulatory Framework) Amendment Act 2018 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 appropriation period appropriation period
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 appropriation period appropriation period
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 appropriation period appropriation period
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.
4: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 11(1) amended 13 November 2018 section 18 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 11(2) amended 13 November 2018 section 18 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 11(3)﻿(d) amended 13 November 2018 section 18 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 11(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
12: Levy for appropriation period beginning 1 July 2018
1:
2:
3:
3A: Every service provider, or class of service providers, specified in regulations made under subsection (4) must pay to the Minister, for the appropriation period beginning on 1 July 2018, 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 Parts 2AA 6 7
b: the preparation of the exercise of, and the exercise of, the Commission’s powers under Parts 2AA 6 7
3B: Subsection (3A) applies irrespective of whether that subsection, and the regulations made under subsection (4), come into effect before, on, or after 1 July 2018.
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 appropriation period appropriation period
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.
5: The Minister must not recommend that regulations be made under this section unless the Minister is satisfied that the levy will not require a service provider, or a class of service providers, to pay a levy in respect of the same period under both this section and section 11
a: the performance of the Commission’s functions and duties under Parts 2AA 6 7
b: the exercise of the Commission’s powers under Parts 2AA 6 7
6: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 12 heading replaced 13 November 2018 section 19(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(1) repealed 13 November 2018 section 19(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(2) repealed 13 November 2018 section 19(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(3) repealed 13 November 2018 section 19(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(3A) inserted 13 November 2018 section 19(3) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(3B) inserted 13 November 2018 section 19(3) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(4)﻿(d) amended 13 November 2018 section 19(4) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(5) inserted 13 November 2018 section 19(5) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 12(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
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) section 12(4)
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) section 12(4)
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
(1): The following provisions of the Commerce Act 1986
a:
b: section 13
c:
d: section 15 (except as provided in section 10(4)
e:
f: section 98
g: subject to section 16 sections 98A and 98G
h: section 99
ha: sections 99B(a) 99C to 99P
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
j: section 100A
k: sections 101 102
l: section 103
m: section 104
n:
o: section 106
p: section 106A
q: section 109
2: The following provisions of the Commerce Act 1986 Part 6
a: section 77
b: sections 79A 79B
c: sections 88 88A 90
d: sections 93 to 97
e: Schedule 5
3: Sections 88 88A section 156MD
4: For the purposes of subsection (1)﻿(l), the necessary modifications referred to in that subsection include (without limitation) treating a notice under any of sections 10A 187(1)﻿(c) 193 221 section 103(1)﻿(a) Section 15 heading amended 25 January 2005 section 200 Crown Entities Act 2004 Section 15(1)﻿(a) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 15(1)﻿(c) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 15(1)﻿(d) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 15(1)﻿(e) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 15(1)﻿(g) amended 1 October 2012 section 339(2) Search and Surveillance Act 2012 Section 15(1)﻿(ha) inserted 24 October 2012 section 4 Telecommunications (International Co-operation) Amendment Act 2012 Section 15(1)﻿(n) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 15(2) inserted 13 November 2018 section 20 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 15(3) inserted 13 November 2018 section 20 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 15(4) inserted 13 November 2018 section 20 Telecommunications (New Regulatory Framework) Amendment Act 2018
16: Application of section 98A of Commerce Act 1986
A search warrant may be issued under section 98A(2)
a: ascertaining whether a person has done any of the following things:
i: committed an offence against section 46(1)﻿(b) or (c) section 82(1)
ii: contravened section 103 Commerce Act 1986
b: obtaining information and documents that have been requested by the Commission under section 82(b) 83(1)﻿(a) section 98 Section 16(b) amended 1 July 2011 section 6 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 Section 17 heading substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 17 amended 25 January 2005 section 200 Crown Entities Act 2004
2: Designated services and specified services
1: Preliminary
18: Purpose
1: The purpose of this Part and Schedules 1 to 3
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 1 July 2011 section 7 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 , Part 2AA Schedules 1 3 3A
a: consider the purpose set out in section 18
b: if applicable, consider the additional matters set out in Schedule 1 section 18
c: make the recommendation, determination, or decision that the Commission section 18 Section 19 amended on 13 November 2018 section 6 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 19 amended 22 December 2006 section 8(1) Telecommunications Amendment Act (No 2) 2006 Section 19(c) amended 22 December 2006 section 8(2) Telecommunications Amendment Act (No 2) 2006
19A: Commission to have regard to economic policies of Government
1: In the exercise of its powers under Part 6 Schedule 3
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
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 Section 19A inserted 22 December 2006 section 9 Telecommunications Amendment Act (No 2) 2006 Section 19A(1) amended 13 November 2018 section 21 Telecommunications (New Regulatory Framework) Amendment Act 2018
2: Determinations 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
22: When application may not be made
1: Despite section 20
a:
b:
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:
3: The Commission may investigate whether subsection (1)﻿(d) applies either at the time—
a: it receives an application made under section 20
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 22 December 2006 section 10(1) Telecommunications Amendment Act (No 2) 2006 Section 22(1)﻿(b) repealed 22 December 2006 section 10(1) Telecommunications Amendment Act (No 2) 2006 Section 22(1)﻿(ca) inserted 22 December 2006 section 10(2) Telecommunications Amendment Act (No 2) 2006 Section 22(2) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 22(3) added 22 December 2006 section 10(3) Telecommunications Amendment Act (No 2) 2006 Section 22(4) added 22 December 2006 section 10(3) Telecommunications Amendment Act (No 2) 2006
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
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
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 22 December 2006 section 11 Telecommunications Amendment Act (No 2) 2006
23: Requirements for application
An application made under section 20
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
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 Determination
27: Preparation of determination
1: 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.
c:
2: A determination under this section is secondary legislation ( see Part 3
3: When a determination is published, the Commission must publish its reasons for making the determination on the Commission’s Internet site. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	give public notice in accordance with section 6 •	comply with subsection (3) Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 27(1)﻿(c) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 27(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 27(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
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)
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 clause 3
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:
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(1)﻿(b) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 30(2) added 22 December 2006 section 12 Telecommunications Amendment Act (No 2) 2006
2A: Standard terms determinations for designated access services and specified services
Subpart 2A inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Preliminary Heading inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30A: Overview of subpart
1: This subpart enables the Commission to make, as an alternative to a determination made under section 27
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 section 30T
e:
3: This section is intended only as a guide to the general scheme and effect of this subpart. Section 30A inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Section 30A(2)﻿(e) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30B: Interpretation
In this subpart,— change in circumstances regulated terms Section 30B inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Standard terms development process Heading inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
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 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
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 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
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
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 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Standard terms proposal Heading inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30F: Call for standard terms proposal
1: After giving public notice under section 30D section 30E
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
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
b: any additional requirements that the Commission specifies under subsection (2). Section 30F inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
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 Part 3
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
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 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
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 section 30G
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
2: The written notice under subsection (1)﻿(a) must be accompanied by a copy of—
a: section 30G
b: any additional requirements that the Commission specifies under section 30F(2) Section 30H inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30I: Receipt of standard terms proposal
As soon as practicable after receiving a standard terms proposal that complies with section 30G
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 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
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 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Draft standard terms determination Heading inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
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
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
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 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
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 Section 30L inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Standard terms determination Heading inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
30M: Standard terms determination
1: As soon as practicable after completing any consultation or conferences under section 30L section 30K(1)﻿(e)
a: prepare a standard terms determination; and
b: provide a copy of the standard terms determination to all parties to the determination.
c:
2: A determination under this section is secondary legislation ( see Part 3
3: When a determination is published, the Commission must publish its reasons for making the determination on the Commission’s Internet site. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	give public notice in accordance with section 6 •	comply with subsection (3) Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 30M inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Section 30M(1)﻿(c) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 30M(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 30M(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
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)
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) Section 30N inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
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:
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: Section 30O inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Section 30O(1)﻿(c) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 30O(3) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
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: 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
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
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 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
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 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
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:
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.
6: Any replacement standard terms determination, or a variation, addition, or deletion of terms under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must give public notice in accordance with section 6 LA19 ss 73 74(1)﻿(a) cl 14 Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 30R inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Section 30R(3)﻿(b) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 30R(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Application of standard terms determination Heading inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006
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:
4: Section 30S inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Section 30S(3) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 30S(4) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
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
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
3: The access provider must comply with the request.
4: The determination made under section 27 Section 30T inserted 22 December 2006 section 13 Telecommunications Amendment Act (No 2) 2006 Residual terms determination Heading repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30U: Purpose of residual terms determination
Section 30U repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30V: Application for residual terms determination
Section 30V repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30W: When application may not be made
Section 30W repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30X: Requirements for application
Section 30X repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30Y: Commission must notify parties
Section 30Y repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30Z: Commission must decide whether to investigate
Section 30Z repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30ZA: Consultation or conferences
Section 30ZA repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30ZB: Preparation of residual terms determination
Section 30ZB repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30ZC: Requirements for residual terms determination
Section 30ZC repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
30ZD: Matters to be included in residual terms determination
Section 30ZD repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
3: Determinations for designated multinetwork services
Commission may initiate process for designated multinetwork service determination on own initiative Heading inserted 22 December 2006 section 14 Telecommunications Amendment Act (No 2) 2006
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 22 December 2006 section 14 Telecommunications Amendment Act (No 2) 2006 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
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
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 section 33
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
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 22 December 2006 section 15 Telecommunications Amendment Act (No 2) 2006 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 22 December 2006 section 16 Telecommunications Amendment Act (No 2) 2006 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
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
1: As soon as practicable after completing any consultation, conferences, or any public hearing under section 38 section 36(1)﻿(d)﻿(i)
a: prepare a determination; and
b: give a copy of the determination to all the parties to the determination.
c:
2: A determination under this section is secondary legislation ( see Part 3
3: When a determination is published, the Commission must publish its reasons for making the determination on the Commission’s Internet site. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	give public notice in accordance with section 6 •	comply with subsection (3) Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 39(1)﻿(c) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 39(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 39(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
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:
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. Section 40(1)﻿(e) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
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:
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)
4: Pricing review determinations for designated access services
Application
42: Application
1: If a determination is made under section 27 or section 30M
1A: However, subsection (1) does not apply in relation to a determination made under section 30M section 30P(1)﻿(a)
2: A determination made under section 27 or section 30M
3: A party to a determination made under section 27 or section 30M
4: Subsections (2) and (3) are for the avoidance of doubt. Section 42(1) amended 22 December 2006 section 17(1) Telecommunications Amendment Act (No 2) 2006 Section 42(1A) inserted 22 December 2006 section 17(2) Telecommunications Amendment Act (No 2) 2006 Section 42(2) amended 22 December 2006 section 17(1) Telecommunications Amendment Act (No 2) 2006 Section 42(3) amended 22 December 2006 section 17(1) Telecommunications Amendment Act (No 2) 2006
43: Requirements for application
An application under section 42
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
ii: for a standard terms determination made under section 30M
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 22 December 2006 section 18 Telecommunications Amendment Act (No 2) 2006 Notification
44: Commission's requirements on receiving application
On receiving an application made in accordance with section 43
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)
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 22 December 2006 section 19 Telecommunications Amendment Act (No 2) 2006 Calculation of price
45: Access provider to calculate price on request
1: On receiving an application made in accordance with section 43 an access provider
2: If an access provider
a: calculate that price in accordance with—
i: the applicable final pricing principle (as affected, if at all, by clause 2 clause 3
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 Section 45(1) amended 22 December 2006 section 20(1) Telecommunications Amendment Act (No 2) 2006 Section 45(2) amended 22 December 2006 section 20(2) Telecommunications Amendment Act (No 2) 2006 Section 45(2)﻿(a)﻿(ii) substituted 22 December 2006 section 20(3) Telecommunications Amendment Act (No 2) 2006
46: Offences
Section 46 repealed 22 December 2006 section 21 Telecommunications Amendment Act (No 2) 2006 Draft determination
47: Draft pricing review determination
As soon as practicable after the completion of any requirements under section 45 subpart 1 section 42
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
b: may consider any matters included in a determination made under section 27
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 clause 3
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)
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 22 December 2006 section 22 Telecommunications Amendment Act (No 2) 2006 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 Determination
51: Pricing review determination
1: As soon as practicable after completing any consultation or conferences under section 50
a: prepare the pricing review determination; and
b: give a copy of the determination to the parties to the determination.
c:
2: To avoid doubt, a determination made under section 27
3: A determination under this section is secondary legislation ( see Part 3
4: When a price review determination is published, the Commission must publish on the Commission’s Internet site the Commission’s reasons for making—
a: the price review determination; and
b: any determination referred to in section 52(b) The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	give public notice in accordance with section 6 •	comply with subsection (4) Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 51(1)﻿(c) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 51(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 51(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
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 clause 3
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)
c:
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 22 December 2006 section 23 Telecommunications Amendment Act (No 2) 2006 Section 52(c) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
5: Supplementary 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
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 56 Section 54(1) amended 22 December 2006 section 24 Telecommunications Amendment Act (No 2) 2006
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
b: by way of a levy under section 11
c: by a combination of the ways referred to in paragraphs (a) and (b). Section 55(2) added 22 December 2006 section 25 Telecommunications Amendment Act (No 2) 2006
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
2: A party to a determination in respect of which a direction has been given under section 56(2)
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:
c: no appeal is pending in respect of the determination.
2: An amendment under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must give public notice in accordance with section 6 LA19 ss 73 74(1)﻿(a) cl 14 Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 58(1)﻿(b) repealed 22 December 2006 section 26 Telecommunications Amendment Act (No 2) 2006 Section 58(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
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:
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: A revocation or amendment under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must give public notice in accordance with section 6 LA19 ss 73 74(1)﻿(a) cl 14 Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 59(1)﻿(b) repealed 22 December 2006 section 27 Telecommunications Amendment Act (No 2) 2006 Section 59(5) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
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—
a: a direction of the Commission under section 55 section 56(2)
b: the determination (including an amendment to a determination made under section 58 section 59
c: a decision of the Commission not to clarify a determination under section 58
d: a decision of the Commission not to reconsider a determination under section 59
2: No party may appeal against a determination made under this Part—
a: while a clarification of the determination under section 58
b: while a reconsideration of the determination under section 59
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: Section 60(5) repealed 1 January 2004 section 48(2) Supreme Court Act 2003
61: Enforcing determinations of Commission
Section 61 repealed 22 December 2006 section 28 Telecommunications Amendment Act (No 2) 2006
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 section 66(b) Section 62 substituted 22 December 2006 section 29 Telecommunications Amendment Act (No 2) 2006
63: Application of Commerce Act 1986
Part 2
6: Matters 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
Section 64 repealed 22 December 2006 section 30 Telecommunications Amendment Act (No 2) 2006
65: Expiry of designated services and specified services
Section 65 repealed 22 December 2006 section 30 Telecommunications Amendment Act (No 2) 2006
66: Alterations to Part 2 or Part 3 of Schedule 1
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, amend Part 2 Part 3
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 Part 3
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
A: any applicable initial pricing principle
B: the applicable final pricing principle; and
C: any requirement referred to in section 45
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: any applicable initial pricing principle
viii: any requirement referred to in section 45
ix: any additional matters that must be considered regarding the application of section 18
2: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 66(1)﻿(a)﻿(v)﻿(A) amended 13 November 2018 section 7(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 66(1)﻿(c)﻿(vii) amended 13 November 2018 section 7(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 66(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
67: Alterations to clauses 1 to 6 of Schedule 1
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, amend any of clauses 1 to 6
2: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 67(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
68: Minister's recommendation subject to procedure in Schedule 3
1: The Minister must not make a recommendation under section 66 67
2: The Commission's recommendation must be made in accordance with the procedure set out in—
a: Part 2 Part 3 Part 2
b: Part 1
3: This section does not prevent the Minister from making a recommendation under section 66 67
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 22 December 2006 section 31 Telecommunications Amendment Act (No 2) 2006
68A: Application of Schedule 3A
1: Schedule 3A Schedule 3
2: However, Schedule 3A Schedule 3 Section 68A inserted 22 December 2006 section 31 Telecommunications Amendment Act (No 2) 2006
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)
d: providing for the determination of the price payable under section 49(a)
e: providing for the determination of the price payable under section 52(a)
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.
3: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 69(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
2AA: Deregulating copper fixed line access services
Part 2AA inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
1: Purpose
Subpart 1 inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AA: Purpose
The purpose of this Part is to—
a: deregulate copper fixed line access services in areas where fibre fixed line access services are available; and
b: provide protections for end-users of copper fixed line access services and certain other designated services in deregulated areas; and
c: provide for the Commission to investigate whether the regulation of copper fixed line access services and certain other designated services should be altered. Section 69AA inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
2: Deregulating copper fixed line access services
Subpart 2 inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AB: Specified fibre areas
1: The Commission must, before 1 January 2020 and at least annually thereafter, carry out an assessment to determine the geographic areas in which a specified fibre service is available to end-users.
2: The Commission must, by public notice, declare an area to be a specified fibre area if the Commission determines in an assessment under subsection (1) that a specified fibre service is available to end-users in the area.
3: A notice under this section must specify the date on and after which the area is to be a specified fibre area, and that date must not be before 1 January 2020.
4: A notice under this section may describe an area by any means, including (without limitation)—
a: by use of a map; and
b: by a narrative description of the area.
5: The Commission must maintain a record of all specified fibre areas that is available, at all reasonable times, for inspection on the Commission’s Internet site in an electronic form that is publicly accessible.
6: In this section, specified fibre service
a: a fibre fixed line access service:
b: a telecommunications service provided by a regulated fibre service provider ( F section 69U Section 69AB inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AC: Withdrawal of copper fixed line access services
1: This section applies if—
a: Chorus is required by a standard terms determination made under section 30M
b: Chorus started supplying the service at a time when the end-user’s building (or, where relevant, the building’s distribution frame) was not located in a specified fibre area; and
c: as a result of a notice under section 69AB
i: the end-user’s building (or, where relevant, the building’s distribution frame) becomes located in a specified fibre area; and
ii: the service ceases to be a designated access service in the specified fibre area on and after the date specified in the notice.
2: Chorus may stop supplying the service referred to in subsection (1) only if—
a: a copper withdrawal code has been approved and Chorus complies with the requirements of the code in relation to stopping the supply of the service; or
b: the end-user chooses to have the service disconnected (other than a temporary disconnection).
3: To avoid doubt, Chorus is not required to—
a: supply a service that ceases to be a designated access service in relation to a new end-user; or
b: resupply a service that Chorus has stopped supplying in accordance with subsection (2). Section 69AC inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AD: Withdrawal of certain designated access services
1: This section applies if—
a: Chorus is required by a standard terms determination made under section 30M
b: Chorus started supplying the service at a time when the service was a designated access service; and
c: as a result of section 13
2: Chorus may stop supplying the service only if—
a: a copper withdrawal code has been approved and Chorus complies with the requirements of the code in relation to stopping the supply of the service; or
b: the end-user chooses to have the service disconnected (other than a temporary disconnection).
3: To avoid doubt, Chorus is not required to—
a: supply a service that ceases to be a designated access service in relation to a new end-user; or
b: resupply a service that Chorus has stopped supplying in accordance with subsection (2).
4: In this section, relevant service
a: Chorus’s unbundled copper local loop network:
b: Chorus’s unbundled copper local loop network backhaul (distribution cabinet to telephone exchange). Section 69AD inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AE: Application of certain TSO instruments in specified fibre areas
Despite anything in this Act, the following TSO instruments cease to apply in relation to an area that becomes a specified fibre area:
a: Telecommunications Service Obligations (TSO) Deed for Local Residential Telephone Service (except to the extent that it relates to 111 call services):
b: Telecommunications Service Obligations (TSO) Deed for TSO Network Service. Section 69AE inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AF: Copper withdrawal code
1: In this Part, copper withdrawal code Schedule 2A
2: Schedule 2A Section 69AF inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
3: Price regulated copper services
Subpart 3 inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AG: Continued application of certain standard terms determinations
1: Subsection (2) applies to a standard terms determination made under section 30M
a: Chorus’s unbundled bitstream access backhaul:
b: Chorus’s unbundled copper local loop network co-location:
c: Chorus’s unbundled copper local loop network backhaul (telephone exchange to interconnect point).
2: Despite anything in this Act, during the period starting on 1 January 2020 and ending on the close of the day immediately before the copper review date for the relevant service,—
a: the determination continues to apply to the relevant service; and
b: sections 30R 59
3: For the purposes of subsection (2)﻿(a),—
a: the prices that apply are the year 5 prices specified in the determination; and
b: those prices increase or decrease (as appropriate) by an annual CPI adjustment on 16 December in each year (starting on 16 December 2020).
4: Subsection (5) applies to a standard terms determination made under section 30M
a: Chorus’s unbundled bitstream access:
b: Chorus’s unbundled copper low frequency service.
5: Despite anything in this Act, during the period starting on 16 December 2019 and ending on the close of the day immediately before the copper review date for the relevant service,—
a: the determination continues to apply to the relevant service; and
b: sections 30R 59
6: For the purposes of subsection (5)﻿(a),—
a: the prices that apply are the year 5 prices specified in the determination; and
b: those prices increase or decrease (as appropriate) by an annual CPI adjustment on 16 December in each year (starting on 16 December 2020).
7: On and after the copper review date for a service referred to in subsection (1) or (4),—
a: the standard terms determination for the service continues to apply; and
b: Part 2 sections 30R 59
c: unless the maximum prices in the determination are amended in accordance with Part 2
8: In this section, copper review date
a: the investigation referred to in section 69AH(1)﻿(a)
b: any other investigation under Schedule 3 Section 69AG inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
4: Investigation
Subpart 4 inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
69AH: Schedule 3 modified for investigation of certain copper services
1: Despite clause 1
a: complete, by no later than 31 December 2025, an investigation under Part 1 Schedule 1 section 66 67
i: copper fixed line access services:
ii: Chorus’s unbundled bitstream access backhaul:
iii: Chorus’s unbundled copper local loop network co-location:
iv: Chorus’s unbundled copper local loop network backhaul (telephone exchange to interconnect point); or
b: provide, within a reasonable time after 31 December 2025, written reasons why there were not reasonable grounds for starting such an investigation.
2: An investigation referred to in subsection (1)﻿(a) must be completed in accordance with Part 1 clause 4(1) Section 69AH inserted 13 November 2018 section 8 Telecommunications (New Regulatory Framework) Amendment Act 2018
2A: Structural separation of Telecom
Part 2A substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
1: Preliminary provisions
Subpart 1 inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 demerger arrangement Part 15 liabilities related party section 69U rights separation day Section 69B substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
2: Monitoring of shared assets, services, and systems
Subpart 2 inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69C: Interpretation
In this subpart, unless the context otherwise requires,— arm's-length section 69D executed sharing arrangement
a: means an arrangement, agreement, contract, or understanding between Spark and Chorus
b: includes an arrangement, agreement, contract, or understanding of the kind described in paragraph (a)
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
iv: a deemed TSO instrument; or
v: an undertaking approved in accordance with subpart 4
vi: an arrangement that is exempted under section 69N
vii: an arrangement that relates to ensuring compliance by Spark
A: the duties imposed by the Telecommunications (Interception Capability and Security) Act 2013
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 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69C sharing arrangement amended 13 November 2018 section 41(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69C sharing arrangement amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69C sharing arrangement amended 11 May 2014 section 123 Telecommunications (Interception Capability and Security) Act 2013
69D: Meaning of arm's-length
Without limiting the ordinary meaning of the expression, arm's-length
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 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69E: Requirements for sharing arrangements
1: Every sharing arrangement must—
a: be recorded in writing and be executed by Spark
b: be on arm's-length terms between Spark
c: be unlikely to harm competition in any telecommunications market; and
d: ensure the protection of confidential commercial information or customer confidential information
2: Spark Section 69E substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69E(1)﻿(a) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69E(1)﻿(b) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69E(1)﻿(d) amended 5 December 2013 section 4 Telecommunications Amendment Act 2013 Section 69E(2) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
69F: Commission must be notified of proposed and final sharing arrangements
1: Spark
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) 156M Section 69F substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69F(1) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
69G: Obligation to collect and retain information for monitoring purposes
Spark Section 69G substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69G amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
69H: Commission's monitoring, investigation, and enforcement powers
1: The Commission may, by notice in writing, require Spark
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: Spark
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
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) 156M Section 69H substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69H(1) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69H(2) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
69I: Commission may give non-compliance notice
1: This section applies if the Commission considers that Spark section 69E non-compliance
2: The Commission may give written notice to each party (a non-compliance notice
a: the nature of the non-compliance; and
b: the 10-day time limit for responses in section 69J
c: the 40-day time limit for rectification and enforcement ( see section 69K Section 69I substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69I(1) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
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 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 Spark amendment direction
b: apply for an injunction under section 69M
c: seek a pecuniary penalty under Part 4A
3: The Commission must give written notice of each decision to each party affected by the decision. Section 69K substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69K(2)﻿(a) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
69L: Application of pecuniary penalty provisions
1: Sections 156L 156M section 69K(2)﻿(c)
2: See sections 156L(3) 156M Section 69L substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 Spark
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) Spark
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 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69M(1) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69M(2) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
69N: Minister may grant exemption from application of subpart
1: The Minister may, by notice
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:
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: A notice under this section is secondary legislation ( see Part 3
7: Spark Spark The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it in the Gazette LA19 ss 73 74(1)﻿(a) cl 14 Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 69N substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69N(1) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 69N(3) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 69N(6) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 69N(7) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
3: Line of business restrictions
Subpart 3 inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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
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) 156M Section 69O substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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
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 section 69O
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 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69P(5) amended 5 December 2013 section 5 Telecommunications Amendment Act 2013
69Q: Variations to, and removals from, register
1: The Commission may, at any time,—
a: review and correct the register maintained under section 69P
b: remove the names of users from the register if—
i: the Commission ceases to be satisfied of the matters in section 69P(5)
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 Section 69Q substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69R: No services above layer 2
1: Every undertaking entered into by Chorus in favour of the Crown under subpart 4 Part 4AA
2: In this section, unless the context otherwise requires, layer 2 services New Zealand Government Ultra-Fast Broadband Initiative Invitation to Participate in Partner Selection Process
3: This Act applies to an undertaking required under this section as if the undertaking were required under subpart 4 Part 4AA Section 69R substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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) 156M Section 69S substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69SA: Exemptions from sections 69R and 69S
1: The Commission may, on the terms and conditions (if any) that it thinks fit, grant an exemption from compliance with—
a: any prohibition referred to in section 69R
b: any provision or provisions of section 69S
2: An exemption may be granted in whole or in part (for example, there could be a complete exemption from a prohibition or provision or an exemption that applies only to 1 or more particular services).
3: The Commission must not grant an exemption unless—
a: it is satisfied that the exemption is consistent with the purpose set out in section 69A
b: it has had regard to whether the exemption will harm, or is likely to harm, competition in any telecommunications market; and
c: it has consulted the persons or organisations that appear to the Commission to be representative of the interests of those persons likely to be substantially affected by the exemption.
4: This section applies on and after the implementation date.
5: Section 69SB Section 69SA inserted 13 November 2018 section 27 Telecommunications (New Regulatory Framework) Amendment Act 2018
69SB: Other provisions relating to exemptions
1: An exemption under section 69SA see Part 3
2: When an exemption is published, the Commission must publish its reasons for granting the exemption, including why it is appropriate, on the Commission’s Internet site.
3:
4: The breach of a term or condition of an exemption is,—
a: in the case of an exemption under section 69SA(1)﻿(a) section 69R
b: in the case of an exemption under section 69SA(1)﻿(b) section 69S
5: The Commission may vary or revoke an exemption in the same way as it may grant the exemption (with the provisions of section 69SA The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (1). Legislation Act 2019 requirements for secondary legislation referred to in subsection (1) Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	give public notice in accordance with section 6 •	comply with subsection (3) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 69SB inserted 13 November 2018 section 27 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69SB(1) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 69SB(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 69SB(3) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
69T: Enforcement of breaches of sections 69O and 69S
Sections 69V 156B sections 69O 69S Section 69T substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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)
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 Spark section 69F(1)﻿(a) or (b)﻿(ii)
4: Without limiting section 69O
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. 1993 No 106, s 4A(2) s 21 Section 69U substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69U(3) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018
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 69S
2: The High Court may, at any time, rescind or vary an injunction granted under this section. Section 69V substituted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
4: Undertakings by Chorus
Subpart 4 inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XA: Interpretation
In this subpart, unless the context otherwise requires,— equivalence legacy access network
a: Chorus's local loop network, as defined in clause 1
b: Chorus's local telephone exchange, as defined in clause 1
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 subpart 1 non-discrimination relevant regulated services except if those services are services in relation to which the end-user’s building (or, where relevant, the building’s distribution frame) is located in a specified fibre area
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
b: does not include—
i: 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; or
ii: any services in relation to which the end-user’s building (or, where relevant, the building’s distribution frame) is located in a specified fibre area UBA service subpart 1 Section 69XA inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69XA relevant regulated services amended 13 November 2018 section 9(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 69XA relevant services replaced 13 November 2018 section 9(2) Telecommunications (New Regulatory Framework) Amendment Act 2018
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)
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)
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 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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
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 subsection (1) Section 69XC inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XD: Chorus must publish Chorus undertakings
1: As soon as practicable after the date on which an undertaking takes effect under section 69XC
2: Section 156AK Section 69XD inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XE: Variation of Chorus undertakings
Sections 156AL to 156AN Section 69XE inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XF: Termination of Chorus undertakings
Section 156AO Section 69XF inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XG: Enforcement of Chorus undertakings
1: Sections 156AQ to 156AS
2: See sections 156L(3) 156M Section 69XG inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
5: Miscellaneous
Subpart 5 inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Public Works Act 1981 Heading inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XH: Application of Public Works Act 1981
1: Despite section 4(4) section 24(4) sections 40 to 42
2: However, after that transfer, sections 40 and 41
3: If, in relation to affected land that has been transferred by Telecom to Chorus, an offer made by Chorus under section 40(2) subsection (4)
4: The time referred to in subsection (3)
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)
5: In this section,— affected land section 4(4) Public Works Act 1981 land Public Works Act 1981 working day Public Works Act 1981 Section 69XH inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Resource Management Act 1991 issues Heading inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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
a: constructing or operating, or proposing to construct or operate, a network for the purpose of telecommunication as defined in section 5
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 section 167 Section 69XI inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XJ: Designations under Resource Management Act 1991
1: The Minister may, before separation day, by notice in the Gazette section 166
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 subsection (1)﻿(a) section 180
b: the designations listed in a Gazette subsection (1)﻿(b) subsection (3)
3: For the purposes of section 177
a: the designations transferred to Chorus under subsection (2)﻿(a)
b: the additional designations granted to Telecom under subsection (2)﻿(b)
4: Part 8 Section 69XJ inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Restrictive covenants Heading inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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, Spark Spark
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 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 69XK(2) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Government Superannuation Fund Act 1956 Heading inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XL: Protection of existing members of Government Superannuation Fund
1: The Government Superannuation Fund Act 1956 subsection (2)
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
c: is a contributor to the Government Superannuation Fund under Part 2 2A
3: For the purpose of applying the Government Superannuation Fund Act 1956 Section 69XL inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
6: Taxation consequences of structural separation
Subpart 6 inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XM: Interpretation in this subpart
In this subpart, unless the context requires otherwise,— appointed day
a: for a purpose specified in a proposal approved by Order in Council made under section 46 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
b: if there is no relevant day under paragraph (a) Chorus company demerger distribution
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 section 46 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 designated assets designated liabilities income year Income Tax Act 2007 Inland Revenue Acts Tax Administration Act 1994 Telecom company vest vesting year Section 69XM inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XO: Depreciation
1: For the purposes of the Income Tax Act 2007 asset
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
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 depreciation recovery income Income Tax Act 2007 Section 69XO inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XP: Tax effect of distribution of ChorusCo shares
1: For the purposes of the Income Tax Act 2007
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
b: is not a dutiable gift for the purposes of the Estate and Gift Duties Act 1968
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: 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: The following table contains a 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: The following table contains a formula pre-calculation amount paid × Telecom mv combined mv
6: In the formulas in subsections (4) and (5),—
a: pre-calculation amount paid
b: Chorus mv section 46
c: Telecom mv section 46
d: combined mv section 46 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 share user Income Tax Act 2007 Section 69XP inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 subsection (1)
3: If it is necessary for a tax invoice, a credit note, or a debit note (the document Goods and Services Tax Act 1985
4: In this section, credit note debit note input tax supply, tax tax invoice Goods and Services Tax Act 1985 Section 69XQ inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 unexpired portion section EA 3(4) to (7)
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 section CH 2
d: the relevant Chorus company has, for the vesting year, a deduction for the unexpired portion described in paragraph (a) section DB 50
e: for the vesting year and any subsequent income year, section EA 3 paragraph (a)
2: In this section, expenditure Income Tax Act 2007 section EA 3(2) Section 69XR inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XT: Bad debts
Sections CG 3 DB 31 Section 69XT inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XU: Unpaid employment expenditure
Sections DC 11(2) and (3) EA 4(6) person B person A Section 69XU inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XV: Vesting of designated assets and liabilities
The vesting of the designated assets and liabilities in a Chorus company—
a: does not give rise to a dutiable gift for the purposes of the Estate and Gift Duties Act 1968
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 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XW: Revenue account property
1: For the purposes of the Income Tax Act 2007 property
2: In this section, tax book value
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
b: for the property, if paragraph (a)
3: In this section, excepted financial arrangement revenue account property trading stock Income Tax Act 2007 Section 69XW inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XX: Leased assets
For the purposes of the Income Tax Act 2007 section EJ 10
a: the Telecom company must calculate an amount to be allocated to the vesting year under section EJ 10(3) and (4)
b: the relevant Chorus company must calculate an amount to be allocated to the vesting year under section EJ 10(3) and (4)
c: section EJ 10 Section 69XX inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XY: Finance leases: financial arrangements rules
1: For the purposes of the financial arrangements rules as defined in section EW 1(2)
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
d: if the Chorus company calculates, on or after the relevant day, a base price adjustment under section EW 31
e: sections EW 38 EW 42 GB 21
2: In this section,—
a: finance lease Income Tax Act 2007
b: tax book value subpart EW Section 69XY inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69XZ: Approved issuer levy and administrative status
1: For the purposes of the Income Tax Act 2007 Stamp and Cheque Duties Act 1971
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
b: a special rate, as defined in section EE 67
4: In this section, registered security Income Tax Act 2007 Section 69XZ inserted 30 November 2011 section 36 section 51 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
2B: Information disclosure requirements
Part 2B repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69Y: Purpose
Section 69Y repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69Z: Parameters of Part
Section 69Z repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69ZA: Interpretation
Section 69ZA repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69ZB: Accounting separation of Telecom
Section 69ZB repealed 1 July 2011 section 47 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
69ZC: Information disclosure by all access providers
Section 69ZC repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69ZD: Miscellaneous provisions relating to Commission's information disclosure requirements
Section 69ZD repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69ZE: Publication of Commission's information disclosure requirements
Section 69ZE repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69ZF: Information to be supplied to Commission
Section 69ZF repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69ZG: Commission to publish summaries
Section 69ZG repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
69ZH: Reasonable charge may be imposed for providing copies of statements
Section 69ZH repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
3: Telecommunications service obligations
1: TSO 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: An order under this section is secondary legislation ( see Part 3
5: The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 70(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 70(5) repealed 22 December 2006 section 33 Telecommunications Amendment Act (No 2) 2006
71: Deemed TSO instrument
1: Despite anything to the contrary in section 70 deemed TSO instrument
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 1 July 2011 section 8 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 1 July 2011 section 9 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
72: New KSO does not alter or revoke constitution of Telecom
Section 72 repealed 1 July 2011 section 10 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
73: When KSO part of original KSO ceases to have effect
Section 73 repealed 1 July 2011 section 10 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 1 July 2011 section 11 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
75: Variation of TSO instrument
A variation of—
a: an instrument that is declared to be a TSO instrument under section 70 section 70(4)
b: a deemed TSO instrument must be treated as part of the deemed TSO instrument. Section 75 heading amended 1 July 2011 section 12(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 75(a) amended 1 July 2011 section 12(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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
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
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.
3: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 76 substituted 1 July 2011 section 13 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 76(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
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
b: every deemed TSO instrument.
2: The Commission must give public notice of every TSO instrument. Section 77 substituted 1 July 2011 section 14 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
78: Application of Commerce Act 1986
Part 2
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.
4: If any of the circumstances described in subsection (1)﻿(a) to (e) apply to 2 or more bodies corporate for part of a year, those bodies corporate must be treated as 1 person in respect of that part of the year to which the relevant circumstance applies. Section 79 substituted 22 December 2006 section 36 Telecommunications Amendment Act (No 2) 2006 Section 79(4) inserted 3 May 2017 section 7 Telecommunications (Property Access and Other Matters) Amendment Act 2017
2: Amounts payable by liable persons to the Crown
Subpart 2 heading substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Annual procedure for determining amounts payable by liable persons to the Crown Heading substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
80: Interpretation
In this subpart, unless the context otherwise requires,— financial reporting standard section 5(1) financial statements
a: has the same meaning as in section 6 section 79
b: if section 79 section 7 minimum telecommunications revenue section 101(1)﻿(a)
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 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 80 financial reporting standard inserted 3 May 2017 section 8 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 80 financial statements replaced 3 May 2017 section 8 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Requirement to produce certain information Heading repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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
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: the person’s financial statements for the year preceding financial year A, which may be the financial statements for—
i: the financial year as defined in section 5
ii: if the person has a different accounting period, the relevant period for that person, provided that the financial statements are for a period of 12 consecutive months ending not more than 6 months before 30 June in 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 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 81(2)﻿(a) replaced 3 May 2017 section 9 Telecommunications (Property Access and Other Matters) Amendment Act 2017
81A: Application of subpart if non-liable person acquires assets of liable person
1: Subsection (2) applies if, during a financial year, a liable person disposes of assets used to generate qualified revenue and a person who acquires those assets is a non-liable person.
2: The acquirer of the assets must, in relation to revenue associated with those assets, pay the amount of the telecommunications development levy determined under section 88(b) section 89
3: To avoid doubt, an acquirer of assets who does not receive the minimum telecommunications revenue is not a liable person. Section 81A inserted 3 May 2017 section 10 Telecommunications (Property Access and Other Matters) Amendment Act 2017
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
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 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Net cost Heading repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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)
b: either—
i: a report on the information provided by the liable person under subsection (1)﻿(a), prepared by a qualified auditor in accordance with an auditing and assurance standard issued under section 12
ii: an alternative form of assurance, as specified by the Commission, that the Commission is satisfied will enable it to make a determination.
2: Section 83 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 83(1)﻿(b) replaced 3 May 2017 section 11(1) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 83(2) repealed 3 May 2017 section 11(2) Telecommunications (Property Access and Other Matters) Amendment Act 2017
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 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Amount of revenue received by liable persons in relation to TSO instrument Heading repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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: The following table is small and contains a 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
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 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
85A: Certain revenue from broadcasting services must be excluded from qualified revenue
1: For the purposes of this subpart, the amount of a liable person’s qualified revenue must exclude the following amounts (as determined in accordance with any specifications set by the Commission):
a: any amount of revenue that is received by a liable person in relation to a broadcasting service that is supplied to end-users free of charge (for example, revenue derived from a free-to-air radio or television service):
b: any amount of revenue that is received before 1 July 2020 by a liable person in relation to any other broadcasting service.
2: The specifications set by the Commission may (without limitation) provide for the apportionment of any amount of revenue if the amount is received in connection with a service referred to in subsection (1) and 1 or more other services. Section 85A inserted 13 November 2018 section 10 Telecommunications (New Regulatory Framework) Amendment Act 2018 General provision relating to TSO cost allocation determination and TSO cost calculation determination Heading repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 TSO cost allocation determination Heading repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
87: Commission to prepare final liability allocation determination
1: The Commission must—
a: prepare a final liability allocation determination; and
b:
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)
3: A determination under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	give public notice in accordance with section 6 •	comply with subsection (1)﻿(c) Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 87 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 87(1)﻿(b) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 87(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
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)
c: the methodology applied by the Commission in preparing the determination; and
d: the reasons for the determination. Section 88 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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)
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 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 General matters Heading inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
90: Crown use of telecommunications development levy
1: The amounts paid by liable persons under section 89 telecommunications development levy
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 section 89 Section 90 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 sections 94F to 94K
2: Section 91 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 91(2) repealed 3 May 2017 section 12 Telecommunications (Property Access and Other Matters) Amendment Act 2017 TSO cost calculation determination Heading repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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
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 section 90
3: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 92 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 92(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
2A: TSO charges payable by the Crown
Subpart 2A inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Assessment of compliance Heading inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
93A: Matters to be included in draft TSO cost calculation determination
Section 93A repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
93B: Conferences on draft TSO cost calculation determination
Section 93B repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
93C: Commission to prepare final TSO cost calculation determination
Section 93C repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
93D: Requirements for final TSO cost calculation determination
Section 93D repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
93E: Matters to be included in final TSO cost calculation determination
Section 93E repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Calculation of amount payable by liable person Heading 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
93F: Calculation of amount payable by liable person
Section 93F repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 TSO provider may request TSO cost calculation determination Heading inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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
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) Section 94 substituted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 94(3) added 30 November 2011 section 36 section 54 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Calculation of amount payable by TSO provider Heading repealed 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 sections 94F to 94K
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 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94B: Withdrawal of request for TSO cost calculation determination
1: A TSO provider who notifies the Commission under section 94
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
4: Section 94A(2) and (3) Section 94B inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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
a: sections 91 94D to 94L
b: the TSO charges for the instrument are deemed to be zero. Section 94C inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Annual procedure for determining TSO charges payable by the Crown Heading inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94E: Considerations for determining net cost
1: In calculating the net cost under section 94D section 94F section 94J
a: in the case of an instrument that is declared to be a TSO instrument under section 70
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 section 94J
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
5: In this section,— established telecommunications services new telecommunications services Section 94E inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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: 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 30 November 2011 section 36 section 55 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94EB: Considerations for determining net revenue
1: In calculating net revenue under section 94EA section 94F section 94J
2: In calculating the net revenue for the purposes of a draft TSO cost calculation determination under section 94F section 94J
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 subsection (2)﻿(a) to (c)
4: In this section, established telecommunications services new telecommunications services section 94E Section 94EB inserted 30 November 2011 section 36 section 55 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 94C Section 94F inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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)
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 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 94G(ab) inserted 30 November 2011 section 36 section 56 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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) section 93(b) section 94F(1)﻿(b) Section 94H inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
94J: Commission to prepare final TSO cost calculation determination
1: The Commission must—
a: prepare a final TSO cost calculation determination; and
b:
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 94C
4: A determination under this section is secondary legislation ( see Part 3
5: When a determination is published, the Commission must publish its reasons for making the determination on the Commission’s Internet site. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	give public notice in accordance with section 6 •	comply with subsection (5) Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 94J inserted 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 94J(1)﻿(b) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 94J(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 94J(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
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)
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
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) paragraph (ab) paragraph (a)
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.
g:
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 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 94K(1)﻿(ab) inserted 30 November 2011 section 36 section 57(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 94K(1)﻿(d)﻿(i) amended 30 November 2011 section 36 section 57(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 94K(1)﻿(d)﻿(ia) inserted 30 November 2011 section 36 section 57(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 94K(1)﻿(g) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
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)
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 1 July 2011 section 15 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
3: Remedies and miscellaneous
Remedies
95: Application of sections 96 to 98 to TSO instruments that are company constitutions
Section 95 repealed 30 November 2011 section 36 section 58 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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
a: an order to—
i: restrain the TSO provider
ii: require the TSO provider
iii: require the TSO provider
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 22 December 2006 section 47 Telecommunications Amendment Act (No 2) 2006 Section 96(1)﻿(a)﻿(i) amended 22 December 2006 section 47 Telecommunications Amendment Act (No 2) 2006 Section 96(1)﻿(a)﻿(ii) amended 22 December 2006 section 47 Telecommunications Amendment Act (No 2) 2006 Section 96(1)﻿(a)﻿(iii) amended 22 December 2006 section 47 Telecommunications Amendment Act (No 2) 2006
97: Court must take public interest into account
In deciding whether to make an order under section 96
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
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 22 December 2006 section 48 Telecommunications Amendment Act (No 2) 2006
99: Amounts identifying particular TSOs in invoices not permitted
Section 99 repealed 1 July 2011 section 16 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 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)
b: a TSO provider, against a direction of the Commission under section 94A(1) 94B(3)
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)
4: To avoid doubt, the obligations to pay money imposed by sections 89 94L
5: TSO provider Section 100 substituted 1 July 2011 section 17 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 22 December 2006 section 50 Telecommunications Amendment Act (No 2) 2006
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
b: final TSO cost calculation determination under section 94J
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 22 December 2006 section 50 Telecommunications Amendment Act (No 2) 2006 Section 100B(1)﻿(a) amended 1 July 2011 section 18(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 100B(1)﻿(b) amended 1 July 2011 section 18(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 100B(3) amended 1 July 2011 section 18(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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
b: a final TSO cost calculation determination under section 94J
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 1 July 2011 section 19 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
100C: Duties of Commission in complying with
sections 100B and 100BA
1: In complying with section 100B
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 69
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
b: may do so in any manner that it thinks fit.
3: In complying with section 100BA Section 100C inserted 22 December 2006 section 50 Telecommunications Amendment Act (No 2) 2006 Section 100C heading amended 1 July 2011 section 20(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 100C(1)﻿(c) amended 1 December 2020 section 217 Privacy Act 2020 Section 100C(3) added 1 July 2011 section 20(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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)
c: provide for the appointment of auditors who may make an auditor's report under section 83(1)﻿(b) 94D(1)﻿(b)
d: prescribe requirements to which section 94D(1)﻿(b)﻿(i)
da: prescribe requirements to which section 94EA(2)﻿(b)﻿(i)
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)
iii: calculating the net cost under section 94D
iiia: calculating the net revenue under section 94EA
iv: preparing a draft determination of the net cost referred to in section 94G(a)
v: determining the net cost referred to in section 94K(1)﻿(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 The following table is small and contains a 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.
5: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 101 substituted 1 July 2011 section 21 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 101(1)﻿(da) inserted 30 November 2011 section 36 section 59(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 101(1)﻿(e)﻿(iiia) inserted 30 November 2011 section 36 section 59(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 101(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
101A: Review of local service TSO arrangements
Section 101A repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
4: Networks
1: Network 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
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
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. 1987 No 116 ss 2(2) 2A(1) Section 102(1) amended 13 November 2018 section 39(4) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 102(3) substituted 22 December 2006 section 52 Telecommunications Amendment Act (No 2) 2006 Section 102(4) added 22 December 2006 section 52 Telecommunications Amendment Act (No 2) 2006 Section 102(5) added 22 December 2006 section 52 Telecommunications Amendment Act (No 2) 2006
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 (other than facilities used exclusively for broadcasting)
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. 1987 No 116 s 2A(2) Section 103(a) amended 13 November 2018 section 39(5) Telecommunications (New Regulatory Framework) Amendment Act 2018
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 1987 No 116 s 2A(4)
105: Declaration made or revoked by notice
1: A declaration is made by notice Spark
1A: A declaration may be revoked by notice Spark
2: A notice making or revoking a declaration is secondary legislation ( see Part 3 1987 No 116 s 2A(3), (5) The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it in the Gazette LA19 ss 73 74(1)﻿(a) cl 14 Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 105 heading amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 105(1) substituted 30 November 2011 section 36 section 63(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 105(1) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 105(1) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 105(1A) inserted 30 November 2011 section 36 section 63(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 105(1A) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 105(1A) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 105(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Connection to network
106: Operator must agree to connection to network
1: Except as provided in Part 2
2: Nothing in subsection (1) limits the Commerce Act 1986
3: Subsection (1) is subject to sections 107 108
4: In subsection (1) and sections 107 108 operator
a: a network operator; or
b: any other person who provides a telecommunications service by means of a PTN 1987 No 116 s 6(1), (2) Section 106(4)﻿(b) amended 1 July 2011 section 26(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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:
c: to detect, investigate, or prosecute any offence against section 112
2: In subsection (1), telephone analyser call associated data section 2(1) 1987 No 116 s 6(2A) Section 107(1)﻿(c) amended 13 November 2018 section 39(6) Telecommunications (New Regulatory Framework) Amendment Act 2018
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
b: those applicable standards have been published in accordance with any regulations made under section 109
c: a relevant competent conformity assessment body has, in accordance with any regulations made under section 109
3: In subsection (2) and section 109 relevant competent conformity assessment body
109: 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 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
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 109(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
110: Actions for damages for contravention of section 106
1: Every person is liable for damages who—
a: contravenes section 106
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. 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. 1987 No 116 s 20C Information requirement Heading inserted 22 December 2006 section 53 Telecommunications Amendment Act (No 2) 2006
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
b: all the applicable terms and conditions of supply for interconnection with that PTN
2: In this section, major supplier
a: means Spark
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.
4: An order under subsection (2)﻿(b) is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 111A inserted 22 December 2006 section 53 Telecommunications Amendment Act (No 2) 2006 Section 111A(1)﻿(a) amended 1 July 2011 section 26(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 111A(1)﻿(b) amended 1 July 2011 section 26(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 111A(2)﻿(a) amended 13 November 2018 section 37(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 111A(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 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 1987 No 116 s 8 Section 112(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011
113: Indecent telephone calls for pecuniary gain
Section 113 repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
114: Interception of telecommunications for authorised purposes
Section 114 repealed 1 October 2003 section 35 Crimes Amendment Act 2003
115: Offence to use or disclose certain information for unauthorised purposes
Section 115 repealed 1 October 2003 section 35 Crimes Amendment Act 2003 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 1987 No 116 s 9(2), (3)
2: Maintenance of networks
Preliminary
117: Meaning of maintenance
1: In this subpart, maintenance
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 or a development plan under the Urban Development Act 2020 Section 117(2) amended 7 August 2020 section 300 Urban Development Act 2020
118: Meaning of evidence of authority
In this subpart, evidence of authority
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 1 July 2011 section 26(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
119: Criteria for setting reasonable conditions
1: In setting, varying, or revoking reasonable conditions under section 135(2) section 142(2)﻿(b)
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
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) 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.
5: In subsection (3), a reference to a district plan includes a reference to a development plan under the Urban Development Act 2020 Section 119(3) added 6 August 2010 section 5 Infrastructure (Amendments Relating to Utilities Access) Act 2010 Section 119(4) added 6 August 2010 section 5 Infrastructure (Amendments Relating to Utilities Access) Act 2010 Section 119(5) inserted 7 August 2020 section 300 Urban Development Act 2020 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 the District Court 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). 1987 No 116 s 11(1) Section 120(1) amended 1 March 2017 section 261 District Court Act 2016
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. 1987 No 116 s 11(2)
122: Contents of court order
Every order made under section 121
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. 1987 No 116 s 11(3)
123: Service of order
Before exercising any powers authorised by an order made under section 121 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
a: on initial entry; and
b: after the initial entry, on request. 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: 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. 1987 No 116 s 12(1)
126: Conditions of entry to land
1: The power to enter land conferred by section 125
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. 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 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. 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
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). 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. 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 section 129(2) 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. 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
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. 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 1987 No 116 s 14(3) Lines or wireless works Heading amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
135: Construction or repair of lines
or wireless works
1: Except as provided in subsection (2), a network operator may—
a: construct, place, and maintain lines or wireless works
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 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. 1987 No 116 s 15 Section 135 heading amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 135(1)﻿(a) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 135(1)﻿(c) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
136: Notice requirement
1: Except as provided in section 139
a: the local authority or other person who has jurisdiction over the road; and
b: any utility operator (as defined in section 4 Utilities Access Act 2010
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. 1987 No 116 s 15A(1), (2) Section 136(1) substituted 6 August 2010 section 6 Infrastructure (Amendments Relating to Utilities Access) Act 2010
137: Network operator to be notified of conditions
Not later than 15 section 135(2) 1987 No 116 s 15A(3) Section 137 amended 6 August 2010 section 7 Infrastructure (Amendments Relating to Utilities Access) Act 2010
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) 15-working day section 137 1987 No 116 s 15A(4) Section 138 amended 6 August 2010 section 8 Infrastructure (Amendments Relating to Utilities Access) Act 2010
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)
b: must give the information required by section 136(2) 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 135 136 139
2: A network operator who commits an offence against subsection (1) is liable on
3: In addition to any fine imposed under subsection (2), a court may make any order relating to compensation that it thinks fit. 1987 No 116 s 15B Section 140(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
141: Appeals by network operators to District Court
1: A network operator may appeal to the District Court section 135(2)
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, the District Court
4: The decision of the District Court 1987 No 116 ss 15C 15D Section 141(1) amended 1 March 2017 section 261 District Court Act 2016 Section 141(3) amended 1 March 2017 section 261 District Court Act 2016 Section 141(4) amended 1 March 2017 section 261 District Court Act 2016 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
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 6 August 2010 section 9 Infrastructure (Amendments Relating to Utilities Access) Act 2010
143: Network operator to be notified of conditions
Not later than 15 section 142 Section 143 amended 6 August 2010 section 10 Infrastructure (Amendments Relating to Utilities Access) Act 2010
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) 15-working day section 143 Section 144 amended 6 August 2010 section 11 Infrastructure (Amendments Relating to Utilities Access) Act 2010
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)
b: must give the information required by section 142(3)
146: Offence not to comply with section 142 or section 145
1: A network operator who fails to comply with section 142 section 145
2: A network operator who commits an offence against subsection (1) is liable on
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 1 July 2013 section 413 Criminal Procedure Act 2011
147: Appeals by network operators to District Court
1: A network operator may appeal to the District Court section 142(2)﻿(b)
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, the District Court
4: The decision of the District Court Section 147(1) amended 1 March 2017 section 261 District Court Act 2016 Section 147(3) amended 1 March 2017 section 261 District Court Act 2016 Section 147(4) amended 1 March 2017 section 261 District Court Act 2016 Local authority, etc, requiring work to be done Heading inserted 6 August 2010 section 12 Infrastructure (Amendments Relating to Utilities Access) Act 2010
147A: Local authority, etc, may require lines, etc, to be moved
1: Where a network operator owns lines, cabinets, wireless works, wireless works,
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. 1992 No 122 s 32 1992 No 124 s 33 Section 147A inserted 6 August 2010 section 12 Infrastructure (Amendments Relating to Utilities Access) Act 2010 Section 147A(1) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
147B: Cost of work required under section 147A
1: The reasonable cost of all work required to be done under section 147A
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,
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:
iii: the Local Government Act 1974 Local Government Act 2002
iv: the Public Works Act 1981
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
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,
b: if, as a consequence of the requirement, the network operator elects to fix or install any lines, cabinets, wireless works,
c: if, as a consequence of the requirement, the network operator relocates the lines, cabinets, wireless works, wireless works,
d: the costs referred to in paragraph (c) are—
i: what it would have cost to relocate and reconstruct the lines, cabinets, wireless works,
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. 1992 No 122 s 33 1992 No 124 s 34 Section 147B inserted 6 August 2010 section 12 Infrastructure (Amendments Relating to Utilities Access) Act 2010 Section 147B(2) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 147B(4)﻿(a) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 147B(4)﻿(b) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 147B(4)﻿(c) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 147B(4)﻿(d)﻿(i) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
147C: Relationship with section 54 of Government Roading Powers Act 1989
Sections 147A 147B section 54 1992 No 122 s 34 1992 No 124 s 35 Section 147C inserted 6 August 2010 section 12 Infrastructure (Amendments Relating to Utilities Access) Act 2010 Miscellaneous
148: Alteration to line
or wireless works
1: If an owner of land or some other person requires a line, wireless works, or other
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 1987 No 116 s 16 Section 148 heading amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 148(1) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 148(2) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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. 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. 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. 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
2: A network operator who commits an offence against subsection (1) is liable on
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 1 July 2013 section 413 Criminal Procedure Act 2011
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
2: Nothing in subsection (1) applies in respect of any rate or charge levied under the Local Government (Rating) Act 2002 Section 153(1) amended 1 July 2011 section 26(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 153(2) amended 13 November 2018 section 41(2) Telecommunications (New Regulatory Framework) Amendment Act 2018
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 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. 1987 No 116 s 20
3: Access to property, involving rights of multiple parties, to deploy fibre optic media and other technology
Subpart 3 replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Preliminary Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155A: Purpose
The purpose of this subpart is to enable more people and businesses to obtain the benefits of fibre-to-the-premises and other technology, within a shorter time frame, by—
a: recognising that, when more than 1 person’s consent is required for an FTTP service provider or a network operator to access a property because each of those persons has some form of legal right in respect of that property, and there are difficulties in obtaining those consents, the process of installing infrastructure (such as fibre optic media) is delayed and opportunities to realise the benefits of that technology are missed; and
b: providing for a tiered system of statutory rights of access—
i: that FTTP service providers and network operators may use to access property and carry out installations in those situations; and
ii: that imposes different requirements for different methods of installation in order to ensure that the requirements are appropriate to the methods and their impact on the property; and
c: providing for a scheme for efficiently and effectively resolving disputes that may arise about rights and obligations under this subpart. Section 155A replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155B: Overview
1: This subpart—
a: provides statutory rights of access that FTTP service providers and network operators may use to access private property that is subject to legal rights of multiple persons in order to install, maintain, repair, and upgrade fibre optic media in circumstances where, but for those rights, the service providers or network operators would need to obtain the consent of more than 1 person (an affected person
b: enables the statutory rights of access to be applied to service providers and network operators in order to install, maintain, repair, or upgrade prescribed other technology ( see sections 155E 155ZO(1)﻿(b)
c: sets out general preconditions for the statutory rights of access to apply, including that the installation does not involve affected persons paying for any costs of the installation ( see section 155J
d: sets out particular preconditions that an FTTP service provider or a network operator must satisfy before exercising the statutory rights, and provides that those preconditions—
i: depend on whether the method that the service provider or network operator intends to use for installing the fibre optic media or prescribed other technology is prescribed as a category 1 installation or category 2 installation:
ii: require the service provider or network operator to give every affected person, and the person who placed the order with a retail provider for the FTTP service to be installed, a preliminary notice of its intention to enter property and carry out a category 1 installation, but do not require it to obtain the consent of any of those persons ( see section 155K
iii: require the service provider or network operator to give every affected person, and the person who placed the order for the FTTP service to be installed, a preliminary notice of its intention to enter a property and carry out a category 2 installation and, unless any affected person objects within the time allowed, deem each affected person to have consented to the entry and installation ( see sections 155L to 155P
iv: in the case of a body corporate administered property, require the service provider or network operator to satisfy the preconditions for a category 2 installation, regardless of whether the installation is a category 1 or a category 2 installation ( see sections 155Q to 155X
e: provides for the grounds on which an affected person may object to a category 2 installation and, for body corporate administered properties, also provides additional grounds for objection ( see sections 155N 155T
f: in the case of a body corporate administered property,—
i: provides a separate statutory right of access for FTTP service providers and network operators to enter the property in order to design installations ( see section 155Q
ii: requires the body corporate to give to all owners of flats and units forming part of the property the body corporate’s reasons for objecting to an installation ( see section 155W
g: provides for how FTTP service providers and network operators must exercise their statutory rights of access ( see sections 155Z to 155ZB
h: for non-prescribed methods of installation, confirms that the rights that an FTTP service provider or a network operator has to enter property and carry out work for the purposes of the installation are the rights (if any) that it has under the general law and any relevant enactments ( see section 155ZC
i: provides for statutory rights of access for FTTP service providers and network operators to re-enter property for the purpose of inspecting, maintaining, repairing, or upgrading all or part of a fibre-to-the premises access network if certain preconditions are met ( see sections 155ZD 155ZE
j: provides for a dispute resolution scheme to be established for resolving disputes relating to the statutory rights of access given by this subpart ( see sections 155ZG to 155ZN Schedule 3C
k: provides for methods of installation to be prescribed as category 1 or category 2 installations for the purposes of the subpart, depending on the impact that the method of installation may have on the property, and for other matters to be prescribed by regulations for the purposes specified in section 155ZO
l: grants the body corporate of a unit title development an exemption from the duty to maintain fibre networks installed as part of the UFB initiative (which would otherwise arise under the Unit Titles Act 2010 see section 155ZP
2: This section is a guide only to the general scheme and effect of this subpart. Section 155B replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Statutory right of access to multi-unit complexes Heading repealed 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155C: Status of examples
1: An example used in this subpart is only illustrative of the provision to which it relates. It does not limit the provision.
2: If an example and the provision to which it relates are inconsistent, the provision prevails. Section 155C replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155D: Interpretation
1: In this subpart, unless the context otherwise requires,— affected person
a: means a person whose consent an FTTP service provider or a network operator would, but for this subpart, have to obtain before entering the property or carrying out the installation; and
b: does not include the person who placed the order with a retail provider for the FTTP service to be installed Example
A flat-owning company owns a property comprising a block of 20 flats (and the land on which it is built). It is a company share property. The flats are situated at the end of a driveway. Three easements over the driveway enable residents of the flats as well as 2 neighbours, each living in a stand-alone house on either side of the driveway, to access their respective properties. Mark rents one of the flats. He wants an Ultra-fast Broadband connection, so he obtains his landlord’s agreement to place an order for an FTTP service to be installed to the flat. Mark, acting as agent for the landlord, places the order with a retail provider. To get fibre optic media from the road through to Mark’s flat, the FTTP service provider has to use a method of installation that depends on the service provider being able to carry out work on the driveway. The body corporate and the neighbours on either side of the driveway are the only affected persons in relation to the installation. This is because they are the persons whose consent to the entry and installation would be required at law,— in the case of the body corporate, as the owner of the property in which the installation is to be carried out and also as a person with rights under an easement over the driveway: in the case of each of the 2 neighbours, as persons with rights under their easements over the driveway. Mark’s landlord, on whose behalf Mark is acting when he places the order for an FTTP service, is not an affected person because of the exclusion in paragraph (b). (However, this subpart does expressly provide certain rights for the person with a legal interest in the shared property who has placed the order for the FTTP service to be installed, for example, rights to receive certain notices.) Mark is not an affected person because he does not have any legal interest in the flat and is therefore not a person whose consent the FTTP service provider would have been required to obtain were it not for this subpart. body corporate administered property
a: a company share property:
b: a unit title development:
c: real property owned under another legal structure (if any) that—
i: comprises 2 or more distinct units (for example, within a building) or a group of buildings used communally; and
ii: is administered by a body corporate category 1 installation category 2 installation company share property Part 7A dispute resolution scheme section 155ZG fibre-to-the-premises access network section 156AB FTTP service FTTP service provider installing carrying out an installation maintaining, repairing, or upgrading section 155ZD(5) maintenance section 117 non-prescribed installation prescribed section 155ZO clause 16 prescribed other technology section 155ZO(1)﻿(b) property unit owner Part 7A unit title development section 5(1)
2: In this subpart, unless the context otherwise requires, a reference to a person who places an order for an FTTP service to be installed is a reference to the owner of the property (or, in the case of a body corporate administered property, the unit owner) to which the order relates, regardless of whether the owner places the order himself or herself or authorises another person (for example, a tenant) to place the order as agent on the owner’s behalf. Section 155D replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 155D(1) UFB initiative repealed 13 November 2018 section 39(7) Telecommunications (New Regulatory Framework) Amendment Act 2018
155E: References to fibre optic media, etc, include other prescribed technology
In this subpart, unless otherwise stated or the context otherwise requires,—
a: a reference to an installation of fibre optic media or an FTTP service includes a reference to the installation of a prescribed other technology or a service involving the installation of a prescribed other technology; and
b: a reference to a fibre-to-the-premises access network includes a reference to a network—
i: that comprises prescribed other technology; or
ii: of which prescribed other technology forms a part. Section 155E replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Process Heading repealed 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155F: Relationship with other statutory rights of access
This subpart does not limit the statutory rights of access for existing works provided for in sections 120 to 127 Section 155F replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155G: Notices under this subpart
A notice required to be given to a person under this subpart must, unless otherwise stated,—
a: be in writing; and
b: be given in the prescribed manner. Section 155G replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Nature and application of statutory rights of access under subpart Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155H: How long statutory rights of access apply for
The statutory rights of access given by this subpart apply,—
a: in relation to FTTP service providers and network operators installing fibre optic media, for the period starting on the date that this subpart comes into force and ending on 1 January 2025; and
b: in relation to FTTP service providers and network operators exercising certain ongoing rights of access to installed fibre optic media, for the periods specified in section 155ZD
c: in relation to network operators and installations of prescribed other technology, for the prescribed period. Section 155H replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155I: Nature of statutory rights of access
1: The statutory rights of access given by this subpart are that an FTTP service provider or a network operator may, for the purpose of carrying out a category 1 or category 2 installation of fibre optic media as part of a fibre-to-the-premises access network,—
a: enter property at reasonable times, and may enter the property with a person who is, or thing that is, reasonably necessary for the purposes of carrying out the installation; and
b: perform work that is reasonably necessary for the purposes of that installation.
2: The statutory rights of access referred to in subsection (1) apply only if—
a: the general preconditions stated in section 155J
b: the FTTP service provider or network operator has complied with the particular preconditions,—
i: for a category 1 installation, stated in section 155K
ii: for a category 2 installation, stated in section 155L
iii: for an installation in a body corporate administered property (regardless of whether the installation is a category 1 or a category 2 installation), stated in section 155R
3: If an installation is in a property other than a body corporate administered property and involves both category 1 and category 2 methods of installation, the whole installation must be treated as a category 2 installation and (in addition to complying with the general preconditions stated in section 155J section 155L
4: If an installation involves more than 1 method of installation and all methods are prescribed as category 1 methods, the FTTP service provider or network operator must treat the whole installation as a category 1 installation.
5: If an installation involves more than 1 method of installation and all methods are prescribed as category 2 methods, the FTTP service provider or network operator must treat the whole installation as a category 2 installation.
6: A further statutory right of access is given to FTTP service providers and network operators for designing installations in body corporate administered properties ( see section 155Q Section 155I replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Code Heading repealed 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155J: General preconditions for statutory rights of access to apply
1: The general preconditions for the statutory rights of access given by this subpart to apply are that—
a: a person has, after the commencement of this subpart, placed an order with a retail provider for an FTTP service to be installed; and
b: the installation involves 1 or more affected persons; and
c: no affected person is liable to pay for the costs of the installation, or part of those costs, without the affected person’s express agreement; and
d: the FTTP service provider or network operator carrying out the installation is a member of the dispute resolution scheme.
2: In relation to subsection (1)﻿(a), see clauses 2 to 5 section 13 Section 155J replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Particular preconditions for category 1 and category 2 installations (in properties other than body corporate administered properties) Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155K: Particular preconditions before exercising statutory right of access to carry out category 1 installation
1: Before an FTTP service provider or a network operator enters a property and carries out a category 1 installation, the service provider or network operator must first give a preliminary notice to—
a: each affected person; and
b: the person who placed the order with a retail provider for an FTTP service to be installed.
2: The preliminary notice must—
a: be given not less than 5 working days before the service provider or network operator enters the property to carry out the installation; and
b: state when the service provider or network operator is intending to enter the property and carry out the installation; and
c: include a general explanation of what will be involved in carrying out the installation; and
d: identify any access areas that the service provider or network operator may want to use when carrying out the installation; and
e: comply with the prescribed requirements (if any).
3: This section does not apply to a category 1 installation in a body corporate administered property ( see sections 155Q 155R Section 155K replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Consumer complaints system Heading repealed 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155L: Particular preconditions before exercising statutory right of access to carry out category 2 installation
1: Before an FTTP service provider or a network operator enters a property and carries out a category 2 installation under this subpart, the service provider or network operator must—
a: first give a preliminary notice and a high-level design plan of the installation that set out the information described in section 155M
i: each affected person; and
ii: the person who placed the order with a retail provider for the FTTP service to be installed; and
b: not have received an objection under section 155N
2: This section does not apply to a category 2 installation in a body corporate administered property ( see section 155R Section 155L replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155M: Requirements in respect of preliminary notice and design plan for category 2 installations
1: The preliminary notice about a category 2 installation given to each person under section 155L(1)﻿(a)
a: state when the FTTP service provider or network operator is intending to enter the property and carry out the installation; and
b: include a general explanation of what will be involved in carrying out the installation; and
c: identify any access areas that the service provider or network operator may want to use when carrying out the installation; and
d: set out the grounds on which an affected person may object to the FTTP service provider or network operator entering the property and carrying out the installation under this subpart; and
e: state how an affected person may object and the time within which an objection must be made; and
f: comply with the prescribed requirements (if any).
2: The high-level design plan required under section 155L(1)﻿(a)
a: where the installation method (or, if more than 1, where each installation method) is to be used on the property; and
b: where the network equipment (if any) associated with that installation method is proposed to be put. Section 155M replaced 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Objections to exercise of statutory right of access to carry out category 2 installations Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155N: Grounds and time for objecting to exercise of statutory right of access to carry out category 2 installation
1: An affected person may object to the FTTP service provider or network operator exercising a statutory right of access to enter property and carry out a category 2 installation, on 1 or more of the following grounds:
a: the person disputes ownership of property that the proposed installation will make use of or disturb:
b: the person can demonstrate that the installation will have a materially negative impact on the value of the person’s property:
c: the person can identify ways in which the proposed installation will unreasonably impact on the person’s enjoyment of the property, or worsen an existing problem with the property, other than by having a visual impact alone:
d: the person can demonstrate that the proposed installation will impede the person’s plans for development of the property:
e: the person has an easement over the property affected and can demonstrate that the proposed installation will have an enduring impact on the terms and conditions of that easement:
f: the prescribed grounds (if any).
2: An affected person who wants to object to a network operator exercising a statutory right of access under this section must do so by giving a notice of objection to the FTTP service provider or network operator within 15 working days after receiving the preliminary notice and high-level design plan for the installation under section 155L(1)﻿(a)
3: Nothing in this section, or any other provision of this subpart, affects the right of a person to cancel an order that the person has placed for an FTTP service to be installed. Section 155N inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155O: Effect of objection to exercise of statutory right of access for category 2 installation
1: If the FTTP service provider, network operator, or person who placed the order with a retail provider for the FTTP service to be installed (in each case, person A section 155N
2: If person A refers the dispute to the dispute resolution scheme, the FTTP service provider or network operator has no statutory right of access to enter the property and carry out the installation unless there is a binding resolution of the dispute under the rules of the scheme or an order of the District Court allows it to exercise that right. Section 155O inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155P: Deemed consent to category 2 installation
Each affected person is deemed to have consented to an FTTP service provider or a network operator entering the property and carrying out a category 2 installation if the preconditions in sections 155J 155L Section 155P inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Statutory rights of access to body corporate administered properties Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155Q: Statutory right of access to common areas of body corporate administered properties for designing installations
1: The statutory right of access given by this section applies after a person has placed an order with a retail provider for an FTTP service to be installed in a body corporate administered property.
2: For the purpose of inspecting the property, to design an installation, an FTTP service provider or a network operator—
a: has a statutory right to enter those areas of the property that are owned by the body corporate on behalf of unit owners as common property and that unit owners are able to freely access on a day-to-day basis; and
b: may, with the permission of the body corporate (which must not be unreasonably withheld), enter other areas of the property owned by the body corporate on behalf of unit holders as common property.
3: Before entering any area of the property that is not common property (for example, a person’s unit in a unit title development or a flat or an office in a building owned by a flat or office owning company within the meaning of Part 7A Example
The owner of an apartment on the top floor of a 3-storey apartment building places an order with a retail provider for an FTTP service to be installed. There are 3 external access ways on the building, one running along the back of each floor, and external staircases that link the access ways. Apartment owners can use these access ways and stairs to move between floors. The FTTP service provider wants to find out whether it will be possible to carry out the installation to the apartment using external conduit alone. The access ways and staircases are owned and held by the body corporate of the building as common property and there are no barriers restricting free access to those parts of the building. The FTTP service provider therefore has a statutory right to enter the property and inspect the external access ways and staircases up to the top floor for the purposes of finding out whether it will be possible to use external conduit and to design a suitable installation. Section 155Q inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155R: Particular preconditions before exercising statutory right of access to body corporate administered property for carrying out category 1 and 2 installations
Before an FTTP service provider or a network operator enters a body corporate administered property and carries out a category 1 or a category 2 installation in reliance on a statutory right of access under this subpart, the service provider or network operator must—
a: first give the body corporate a preliminary notice and high-level design plan in accordance with section 155S
b: not have received an objection under section 155T Section 155R inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155S: Requirements in respect of preliminary notice and design plan given to body corporate
1: The preliminary notice and high-level design plan given to a body corporate about a category 1 or category 2 installation under section 155R section 155M
2: However, in complying with section 155M(1)﻿(d) section 155T section 155N Section 155S inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155T: Grounds and time for body corporate objecting to statutory right of access to carry out category 1 or category 2 installation
The body corporate may object to a category 1 or category 2 installation under section 155R section 155N
a: the body corporate considers that the installation will result in unacceptable disruption to the availability of telecommunications services to unit owners during business hours:
b: the body corporate considers that there is a real likelihood the installation as designed would breach 1 or more enactments applying to the body corporate and the property (for example, the Building Code, the Heritage New Zealand Pouhere Taonga Act 2014 Health and Safety at Work Act 2015
c: the body corporate considers that the proposed installation will prevent it from meeting its existing contractual obligations and the body corporate can provide documentation confirming this:
d: any prescribed grounds. Section 155T inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155U: FTTP service provider or network operator may extend time for body corporate objections
1: An FTTP service provider or a network operator may, on its own initiative or at the request of the body corporate, extend the time for a body corporate to object to a category 1 or category 2 installation under section 155T
2: If a body corporate wants to request an extension under this section, it must do so by giving a notice to the FTTP service provider or network operator before the end of the 15-working-day period allowed for objecting under section 155T section 155N
3: An FTTP service provider or a network operator must not unreasonably withhold permission if it receives a request for an extension under subsection (2). Section 155U inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155V: Effect of body corporate objections
If an FTTP service provider or a network operator disputes the validity of a body corporate’s objection under section 155T
a: the service provider or network operator may refer the dispute to the dispute resolution scheme; and
b: section 155O(2) Section 155V inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155W: Requirement for governing bodies to give unit owners reasons for objections
1: A body corporate that objects to an installation under section 155T
2: The notice must—
a: be in writing; and
b: be given not later than 10 working days after the body corporate lodges its objection. Section 155W inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155X: Deemed consent of body corporate to category 1 or category 2 installation
The body corporate of a body corporate administered property is deemed to have consented to an FTTP service provider or a network operator entering the property and carrying out a category 1 or category 2 installation if the preconditions in sections 155J 155R Section 155X inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Exercising statutory rights of access for category 1 and category 2 installations Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155Y: Application of sections 155Z to 155ZB
Sections 155Z to 155ZB Section 155Y inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155Z: How statutory rights of access must be exercised
1: An FTTP service provider or a network operator must comply with the following requirements when exercising its statutory right of access under this subpart to enter property and carry out an installation:
a: the owner and the occupier of the property must be given reasonable notice of the service provider’s or network operator’s intention to enter the property to start the installation if,—
i: the FTTP service provider or network operator did not, in the preliminary notice given under section 155K 155L 155R
ii: the FTTP service provider or network operator specified a date in that preliminary notice but that date has changed; and
b: from the start to the completion of the installation, entry to the property must be made at reasonable times; and
c: entry to the property must be made only by an officer, employee, or agent of the service provider or network operator authorised by it in writing; and
d: the person authorised to enter must produce evidence of his or her authority and identity if asked to do so.
2: In subsection (1), evidence of authority section 118 Section 155Z inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZA: Restrictions on use of access areas during installations, reinstatements, etc
1: An FTTP service provider or a network operator using an access area to carry out a category 1 or category 2 installation, or to carry out any of the work specified in subsection (2), may restrict or block other persons from using the access area only for—
a: the period or periods of time prescribed (if any); or
b: if no period of time is prescribed, the period of time reasonably necessary to complete the installation or work.
2: The work referred to in subsection (1) is—
a: reinstating property under section 155ZB
b: performing any act or operation under section 155ZD(1)﻿(a)
c: extending an installation under section 155ZD(1)﻿(b)﻿(i)
d: permanently reinstating an area under section 155ZD(1)﻿(b)﻿(ii) Section 155ZA inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZB: Obligation to reinstate property
An FTTP service provider or a network operator must, as soon as practicable after completing an installation, reinstate the area of the property impacted or disturbed by the installation as closely as reasonably possible to its original condition before the installation. Section 155ZB inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Non-prescribed installations Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZC: Non-prescribed installations
If an FTTP service provider or a network operator wants to enter property and carry out a non-prescribed installation involving 1 or more affected persons,—
a: none of the statutory rights of access under this subpart applies; and
b: the service provider or network operator must obtain rights to enter the property and carry out the installation in accordance with the general law and any relevant enactment applying at the time. Section 155ZC inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Ongoing rights of access to installed fibre infrastructure Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZD: Ongoing rights of access
1: The rights of access given by this section are for an FTTP service provider or a network operator to,—
a: at any time before or after 1 January 2025, for an indefinite period, re-enter property to perform any act or operation necessary for the purpose of inspecting, maintaining, repairing, or upgrading all or any part of a fibre-to-the-premises access network that the service provider or network operator owns and that was installed (whether by the service provider or network operator who owns the fibre-to-the-premises network at the time of the re-entry or a previous owner) at any time after 1 July 2012; and
b: at any time before 1 January 2025, re-enter property to—
i: extend an installation that forms part of a fibre-to-the-premises access network described in paragraph (a) if the extension does not involve a change to the design plan originally provided under this subpart to affected persons and the person who placed the order for the FTTP service to be installed; or
ii: permanently reinstate an area where, at the time of installing, maintaining, repairing, or upgrading part of the fibre-to-the-premises access network, the service provider or network operator reinstated the property on an interim basis only, until a permanent reinstatement could be undertaken.
2: The rights of access apply if—
a: the FTTP service provider or network operator who entered the property and carried out the original installation did so after obtaining the consent of more than 1 person, or entered the property under this subpart; and
b: the FTTP service provider or network operator complies with the conditions in section 155ZE
c: neither of the circumstances in subsection (3) applies.
3: The rights of access given by this section do not apply if—
a: the FTTP service provider or network operator has rights of access equivalent to the rights in subsection (1) under 1 or more easements in respect of the part of the fibre-to-the-premises access network that the service provider wants to access; or
b: the part of the fibre-to-the-premises access network that the FTTP service provider or network operator wants to access was installed in breach of legal rights or obligations in that the service provider or network operator that carried out the original installation—
i: failed to obtain all necessary consents for the installation; or
ii: acted outside the terms of 1 or more consents given by persons in respect of the installation.
4: To avoid doubt, this section applies, with all necessary modifications, to a network operator and prescribed other technology that is installed in reliance on the rights of access given by this subpart.
5: In this section, maintaining, repairing, or upgrading
a: any repairs and any other activities for the purpose of maintaining, or that have the effect of maintaining, part of the fibre-to-the-premises access network; and
b: the carrying out of any replacement or upgrade of existing works, as long as the land will not be injuriously affected as a result of the replacement or upgrade. 1992 No 122 s 23(3) Section 155ZD inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZE: Conditions of ongoing rights
1: The rights of access given by section 155ZD
a: entry to the property must be made only by a person who—
i: is an officer, employee, or agent of the FTTP service provider or network operator; and
ii: is authorised by the service provider or network operator, in writing, to make that entry; and
b: the owner and the occupier of the property must be given reasonable notice of the intention to enter the property; and
c: entry must be made at reasonable times; and
d: the person entering must produce evidence of his or her authority and identity, if asked to do so; and
e: the property must be reinstated as provided in section 155ZB
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. Section 155ZE inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Protection of interests in installations Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZF: Protection of interests in installations
1: This section applies to a category 1 or category 2 installation that forms part of a fibre-to-the-premises access network, including any work in relation to or in connection with the installation, if—
a: it is fixed to, or installed under or over, land that is not owned by the FTTP service provider or network operator; and
b: the service provider or network operator carried out the installation after 1 July 2012; and
c: the FTTP service provider or network operator entered the property and carried out the installation after obtaining the required consents or entered the property under this subpart; and
d: neither of the circumstances described in section 155ZD(3)
2: If this section applies,—
a: the installation and work are deemed to be lawfully fixed or installed and continue to be lawfully fixed or installed until the FTTP service provider or network operator decides otherwise; and
b: no person other than the FTTP service provider or network operator has an interest in the installation or work by reason only of having an interest in the land. 2001 No 103 s 155 Section 155ZF inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Dispute resolution process Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZG: Dispute resolution scheme
1: The dispute resolution scheme
a: the approved scheme defined in clause 2
b: the regulated scheme provided for in regulations made under clause 16
2: The procedures for referring disputes to the dispute resolution scheme are as set out in the rules of the dispute resolution scheme. 2010 No 116 s 95 Section 155ZG inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZH: FTTP service providers and network operators exercising statutory access rights must be members of dispute resolution scheme
1: Every FTTP service provider and network operator that relies on a statutory right of access under this subpart (other than an FTTP service provider or network operator and that is referred to in subsection (2)),—
a: in order to install fibre optic media, must be a member of the dispute resolution scheme and must remain a member of the scheme until 1 January 2026:
b: in order to install a prescribed other technology, must be a member of the dispute resolution scheme for the period that—
i: starts on the day after the date on which the order prescribing that technology as other technology for the purposes of this subpart comes into force; and
ii: ends on the date that is 10 years later.
2: Subsection (1) does not apply to an FTTP service provider or network operator that relies only on the statutory rights of access given to them by this subpart for the purpose of performing acts or operations necessary for the purpose of inspecting, maintaining, repairing, or upgrading a fibre-to-the-premises access network.
3: Despite subsection (1), an FTTP service provider or a network operator does not need to be a member of the dispute resolution scheme if the Minister exempts that person by issuing an individual exemption notice in the Gazette
a: identifies the person that is exempt from the obligation to be a member; and
b: gives reasons for the exemption.
4: The Minister may grant an individual exemption to a person only if he or she is satisfied that membership of the dispute resolution scheme by the person is not necessary in order to meet the purpose of the dispute resolution scheme (as set out in clause 1
a: that person has permanently stopped carrying out installations; and
b: all disputes involving that person that have been referred to the scheme (if any) have been dealt with; and
c: it is unlikely that other disputes involving that person are yet to be referred to the scheme.
5: The Minister may amend or revoke an individual exemption by issuing a notice in the Gazette
a: first notifies the exempt person (where possible) of the proposed amendment or revocation and gives the person a reasonable opportunity to comment on the proposal; and
b: is satisfied that the amendment or revocation is necessary or desirable in order to meet the purpose of the dispute resolution scheme.
6: The Ministry must ensure that an up-to-date list of all exemptions is available at all reasonable times on an Internet site maintained by or on behalf of the Ministry.
7: 2010 No 116 s 96 Section 155ZH inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 155ZH(7) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
155ZI: Disputes may be referred to dispute resolution scheme
1: A dispute between the following persons about their rights and obligations under this subpart in relation to an installation may be referred to the dispute resolution scheme by any of the parties to the dispute:
a: a dispute between an FTTP service provider or a network operator and—
i: a person who places an order with a retail provider for an FTTP service to be installed:
ii: the body corporate of a body corporate administered property:
iii: an affected person; and
b: a dispute between a person who places an order with a retail provider for an FTTP service to be installed and an affected person; and
c: a dispute between an FTTP service provider or a network operator and a person affected by a re-entry under section 155ZD(1)﻿(b)
2: Subsection (1)﻿(b) does not apply if the person who places the order with the retail provider is a unit owner or person occupying a unit in a body corporate administered property.
3: Disputes that may be referred to the dispute resolution scheme include disputes about—
a: whether a statutory right of access under this subpart applies for an FTTP service provider or a network operator to enter a property and carry out a proposed installation:
b: the validity of a person’s grounds for objecting to an FTTP service provider or a network operator exercising a statutory right of access under this subpart to carry out a category 2 installation (or, in the case of a body corporate administered property, a category 1 or category 2 installation):
c: whether an FTTP service provider or a network operator has complied with requirements under this subpart when exercising a statutory right of access (including the requirement to reinstate property when an installation is completed):
d: other matters provided for in the rules of the scheme. Example
This example refers to the situation set out in the example in section 155D(1) concerning the meaning given to the term affected person. The method that the FTTP service provider has to use in order to get fibre optic media from the road to Mark’s flat via the driveway is prescribed as a category 2 installation. The FTTP service provider therefore gives the flat-owning company and each of the 2 neighbours a notice and high-level design plan that set out the information required under section 155R. Within 15 working days after receiving the notice, 1 of the neighbours objects, on the grounds that the work involved may worsen a subsidence problem in one corner of that person’s property (section 155N). The body corporate also objects, on the ground that it considers the installation will result in an unacceptable disruption to telephone services, during business hours, for other flat owners (section 155T(a)). The FTTP service provider is unable to reach an agreed settlement with either the neighbour or the body corporate concerning the validity of their objections and therefore refers each dispute to the dispute resolution scheme. After further unsuccessful attempts to settle each dispute, the FTTP service provider requests that a determination be made on each dispute under the rules of the scheme. The person determining the disputes concludes that there are no grounds for the body corporate’s objection. This determination is binding on the FTTP service provider as a member of the scheme (section 155ZJ(2)) but not on the body corporate, which can, within 5 working days of being notified of the determination, appeal against it to the District Court (sections 155ZK and 155ZL). However, the neighbour’s objection is determined to be valid, meaning that the FTTP service provider cannot exercise a statutory right of access to carry out the installation. This is binding on the FTTP service provider and it cannot appeal to the District Court (section 155ZJ(2)). The owner of Mark’s flat, as the person who placed the order for the installation, does not have a right to refer a dispute to the dispute resolution scheme, either in relation to the body corporate’s objection or in relation to the neighbour’s objection (subsection (2) of this section). Any dispute between the owner of Mark’s flat and the body corporate over the body corporate’s objection to the FTTP service provider entering the block of flats and carrying out the installation would be a matter to be resolved in accordance with the relevant provisions (if any) of the owner’s licence and the rules of the body corporate (or, if the flat is part of a unit title development instead of a company share property, in accordance with the provisions of Part 4 of the Unit Titles Act 2010). Mark does not have any right to refer a dispute to the dispute resolution scheme under this section either. He is not the person who placed the order for the installation ( see see Section 155ZI inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZJ: Determinations binding on members and certain other parties
1: This section applies if a dispute is referred to the dispute resolution scheme and a determination is made on the dispute under the rules of the scheme.
2: The determination is binding on each party to the dispute that is a member of the dispute resolution scheme (except to the extent that it may be modified by the District Court under section 155ZM(3)
3: The determination is binding on each party to the dispute who is not a member of the dispute resolution scheme, except if one of those parties lodges an appeal against the determination under section 155ZK Section 155ZJ inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZK: Appeals against determinations
1: A party to the dispute that is not a member of the scheme may, within the time allowed under section 155ZL(1)
2: The court may confirm, modify, or reverse the decision appealed against.
3: The decision of the court on the appeal is binding on all persons named as parties in the determination, and there is no right of appeal against the court’s decision. Section 155ZK inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZL: Procedure on appeal
1: An appeal under section 155ZK
a: an appeal must be brought within 5 working days after the determination appealed against is notified to the party wanting to lodge the appeal, or any further time the court allows on an application made before or after that period ends; and
b: the dispute resolution scheme, as the maker of the determination appealed against, is not entitled to be represented at the hearing of the appeal; and
c: the court on appeal may not refer the determination back to the dispute resolution scheme for any purpose.
2: The court may hear all evidence provided and representations made by or on behalf of any party to the appeal that the court considers relevant to the appeal, whether or not the evidence would be admissible in a court. Section 155ZL inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZM: Compliance with rules, binding settlements, and determinations
1: Members of the dispute resolution scheme and each party to a dispute that is referred to the scheme must comply with the rules of the scheme.
2: On the application of the person responsible for the dispute resolution scheme, the District Court may require a member of the dispute resolution scheme or other person who is a party to a dispute to—
a: comply with the rules of the scheme:
b: comply with the terms of a binding settlement or determination made under the rules of the scheme.
3: If the District Court is satisfied that the terms of a binding settlement or determination are manifestly unreasonable, the court's order under subsection (2)﻿(b) may modify the terms of the binding settlement or determination, but only to the extent that the modification results in a binding settlement or determination that could have been made under the dispute resolution scheme.
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 the 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 dispute resolution scheme at the relevant time but is no longer a member at the time of the application or order. 2010 No 116 s 97 Section 155ZM inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZN: Levy for regulated dispute resolution scheme
1: This section applies if the dispute resolution scheme is the regulated scheme.
2: Every FTTP service provider and network operator that relies on a statutory right of access under this subpart (or a prescribed class of those persons) must pay to the Minister in each financial year or part financial year (as the case may require) a prescribed levy.
3: Subsection (2) does not apply to an FTTP service provider or network operator that relies on the statutory rights of access given by section 155ZD(1)﻿(b)
4: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations providing for the levy.
5: The levy must be prescribed on the basis that the costs of establishing and operating the dispute resolution scheme should be met fully out of the levy.
6: The Governor-General, in making regulations under this section, has the same powers as those set out in section 11(3)
7: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 155ZN inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 155ZN(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Regulations and exemption Heading inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZO: Regulations
1: The Governor-General may, by Order in Council made on the recommendation of the Minister in accordance with subsections (2) to (4), make regulations for all or any of the following purposes in respect of this subpart:
a: prescribing, for the purposes of section 155G
b: prescribing other technology for the purposes of this subpart:
c: prescribing how long statutory rights of access apply for a prescribed other technology for the purposes of section 155H(c)
d: prescribing requirements for preliminary notices for the purposes of section 155K(2) 155M(1)
e: prescribing methods of installation as category 1 installations (including requirements applying to those installations) for the purposes of this subpart:
f: prescribing methods of installation as category 2 installations (including requirements applying to those installations) for the purposes of this subpart:
g: prescribing grounds on which affected persons may object to category 2 installations for the purposes of section 155N
h: prescribing grounds on which the body corporate of a body corporate administered property may object to a category 1 or category 2 installation for the purposes of section 155T
i: prescribing when grounds for objection apply, do not apply, or apply with modifications:
j: prescribing periods of time for the purposes of section 155ZA
i: different periods of time for each category of installation:
ii: different periods of time for each type of work specified in section 155ZA(2)
iii: different times in the day during which any prescribed period of time applies:
iv: the number of occasions, during any period of time, that an FTTP service provider may restrict or block other persons from using an access area:
k: prescribing fees payable by members of the dispute resolution scheme in respect of any matter relating to disputes under this subpart, or the manner in which such fees may be calculated:
l: prescribing how information may or must be given to, provided to, or served on any person under this subpart and other matters relating to that procedure (including when the information is treated as received or as having been given, provided, or served for the purposes of this subpart and the regulations):
m: providing for any other matters contemplated for this Act, necessary for its administration, or necessary for giving it full effect.
2: Before recommending regulations prescribing other technology under subsection (1)﻿(b), the Minister must—
a: consult the persons or organisations that appear to the Minister to be representative of the interests of those persons likely to be substantially affected by the regulations; and
b: be satisfied that the technology proposed—
i: is to be deployed on a large scale; and
ii: will provide benefits to New Zealand; and
iii: cannot be installed without the consent of multiple parties first being obtained and this requirement is preventing, or is likely to prevent, the benefits to New Zealand of the technology being realised.
3: Before recommending regulations prescribing a method of installation as a category 1 installation under subsection (1)﻿(e), the Minister must be satisfied that the installation will not have any lasting, substantial, physical impact on the property.
4: Before recommending regulations prescribing a method of installation as a category 2 installation under subsection (1)﻿(f), the Minister must be satisfied that—
a: any disruption that the installation may cause for users of the property will be temporary; and
b: any lasting, substantial, physical impact that the installation may have on the property is justifiable in support of the mass market roll-out of a telecommunications network. Examples of category 1 and category 2 installations
Examples of category 1 installations are— an installation that uses existing equipment such as ducts or conduit: an aerial installation: an installation that only disturbs soft surfaces and where those surfaces can easily be restored. Examples of category 2 installations are— micro-trenching where the width of the cut is not more than the prescribed width: an installation that is predominantly below the surface, such as directional drilling, where the physical impact is limited to access points, or entry and exit points, that do not exceed the prescribed size: open trenching where the size of the trench, once reinstated, is not more than the prescribed size.
5: A failure to comply with this section does not affect the validity of the regulations made.
6: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 155ZO inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 155ZO(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
155ZP: Exemption from body corporate duties of repair and maintenance
1: A body corporate is exempted from any obligation to repair and maintain fibre network equipment installed in its complex if that network was installed as part of the UFB initiative.
2: Subsection (1) applies despite—
a: section 138
b: the terms of any licence, lease, or other instrument that, but for this section, would require a body corporate to repair and maintain that equipment. Section 155ZP inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZQ: Relationship to other enactments
The provisions of this subpart do not affect or limit the scope or application of any other enactment regulating acts or omissions in relation to accessing property and installing fibre optic media or other technology, except to the extent that the enactment is inconsistent with, or modified by, this Act. Section 155ZQ inserted 9 June 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
156: Notices to be in writing
Section 156 repealed 1 July 2011 section 26(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
4: Right of access to use existing electricity works for telecommunications and deploying fibre optic cable
Subpart 4 inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZR: Purposes
1: The overall purpose of this subpart is to make a significant contribution to the work and personal lives of people residing in rural areas of New Zealand, in particular, by enabling existing electricity infrastructure to be used for deploying fibre optic cable and, by that means,—
a: accelerate the roll-out of fibre-to-the-premises in those areas; and
b: enable access to high-speed communications for businesses, for schools, and for individual purposes, including for accessing health, banking, and other services, and for establishing and maintaining social and support networks.
2: To those ends, the other purposes of this subpart are to—
a: provide owners of existing works (including power poles, overhead lines, and other infrastructure connected with the generation, conversion, transformation, or conveyance of electricity) with a right to enter rural and other land on which those existing works are situated and use the works for the purposes of deploying, maintaining, and upgrading fibre optic cable for delivering telecommunications services; and
b: ensure that the owners of the existing works provide the owners of the land on which those works are situated with direct benefits to offset the impact of the right of entry on the landowner’s own property rights; and
c: ensure that owners of existing works and third parties are subject to open access obligations enforceable by the Commission and that owners of existing works may be subject to other regulatory action if they are not exercising their rights under this subpart and are refusing third party requests for arrangements enabling third parties to use those rights for deploying fibre optic cable. Section 155ZR inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZS: Interpretation
In this subpart, unless the context otherwise requires,— breakout point connection point existing works
a: has the same meaning as in section 2(1)
b: includes works comprising fibre optic cable installed on existing works before 1 December 2016 and used or intended to be used in connection with the conveyance of electricity (for example, fibre optic cable installed for the purposes of monitoring and ensuring control of the electricity network) fibre optic works
a: means fittings, including fibre optic cable and related materials, used or intended to be used in connection with installing, maintaining, or upgrading any part of a fibre-based network for telecommunications that incorporates fibre optic cable deployed on existing works; and
b: means the installation, maintenance, or upgrading of any part of a fibre-based network for telecommunications as described in paragraph (a); but
c: does not include fibre optic cable that falls within paragraph (b) of the definition of existing works, unless it is repurposed fibre layer 1 layer 1 service layer 2 layer 2 service maintenance
a: repairs and other activities for the purpose of maintaining, or that have the effect of maintaining, fibre optic works; and
b: the carrying out of any replacement or upgrade of fibre optic works OSI Model point of supply section 2(3) repurposed fibre service provider section 5 third party
a: a service provider:
b: a network operator. 1992 No 122 s 23(3) Section 155ZS inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZT: Right for owners of existing works to enter land and carry out fibre optic works
1: An owner of existing works may enter land on which the works are situated for the purpose of accessing those works and carrying out fibre optic works.
2: The right of entry is subject to the conditions that the owner of the existing works—
a: complies with the notice requirements in section 155ZZB(2)﻿(c) to (g)
b: provides the landowner with the capability to connect to a fibre-to-the-premises access network (whether by including, when the fibre optic cable is first being deployed on the existing works, a breakout point in a position that the owner of the existing works considers appropriate, or by any other means suitable for ensuring connectability between the landowner’s property and a network); and
c: provides a single fibre connection to the connection point that meets the relevant requirements in section 155ZU
3: The requirements in subsection (2)﻿(b) and (c) do not apply in relation to repurposed fibre. Section 155ZT inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZU: Fibre optic connections that owners of existing works must provide to landowners
Standard connections
1: If the distance between the breakout point (or equivalent) and the connection point is 200 metres or less, the owner of the existing works must provide the landowner with a standard connection.
2: The owner of the existing works provides a standard connection by aerially installing up to, and including, 200 metres of fibre optic cable between the breakout point (or equivalent) and the connection point, at no cost to the landowner. Non-standard connections
3: If the distance between the breakout point (or equivalent) and the connection point is more than 200 metres, the owner of the existing works must provide the landowner with a non-standard installation.
4: The owner of the existing works provides a non-standard installation by—
a: aerially installing up to, and including, 200 metres of fibre optic cable along the distance between the breakout point (or equivalent) and the connection point, at no cost to the landowner; and
b: contributing 50% of the costs of aerially installing fibre optic cable over the remaining distance, up to, and including, 500 metres, between the 200 metres installed under paragraph (a) and the connection point. Rights and obligations of owner of existing works and landowner where aerial installation not possible
5: Despite subsections (1) to (4), if an aerial installation is not practicable and trenching is required at any point,—
a: the landowner must provide, or meet the cost of, that trenching; and
b: the obligation of the owner of the existing works is not affected, except to the extent that, in any place where the fibre optic cable cannot be installed aerially, the landowner is responsible for trenching in that place as provided in paragraph (a). Variations
6: Nothing in this section prevents an owner of existing works and a landowner from entering into an agreement to replace or vary the rights and obligations concerning the installation of a fibre connection to a building on the landowner’s property provided for in this section.
7: In this section, an equivalent section 155ZT(2)﻿(b) Section 155ZU inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Third party use of existing works Heading inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZV: Third party use of existing works for carrying out fibre optic works
1: An owner of existing works and a third party may enter into an arrangement for the third party to use the owner’s existing works for carrying out fibre optic works.
2: The right under subsection (1) applies only if the owner of the existing works remains responsible to any landowner on whose land the existing works are situated for the performance of all obligations and the discharge of all liabilities under this subpart relating to fibre optic works.
3: Subsection (2) is subject to section 155ZZC(3)
4: Nothing in this section or sections 155ZW to 155ZZC
a: the arrangement is entered into before the date of commencement of this subpart; and
b: the third party is not exercising the rights under this subpart. Section 155ZV inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZW: Third party request to use existing works for carrying out fibre optic works
1: A third party may request an owner of existing works who is not exercising the rights under this subpart to enter into an arrangement under section 155ZV
2: A request must be made in writing.
3: The third party who makes the request must provide to the owner of the existing works any relevant information that the owner considers necessary to properly consider the request.
4: However, the third party may choose to withhold any information that the third party considers is commercially sensitive or subject to legal protection and, in that case, must substitute an explanation for the information withheld. Section 155ZW inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZX: Owner of existing works must consider request
1: An owner of existing works must consider a request as soon as practicable after receiving it.
2: In considering the request, the owner of the existing works must—
a: act in good faith; and
b: take into account the purposes of this subpart. Section 155ZX inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZY: Requirements on owner of existing works if request refused
If the owner of the existing works refuses the request, the owner must—
a: give a notice to the third party that records the refusal; and
b: give a copy of the third party’s request and the notice under paragraph (a) to the Commission. Section 155ZY inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZ: Minister may intervene
1: The Minister may require the Commission to report to the Minister about the information received under section 155ZY
a: the requests made to existing works owners by third parties; and
b: the requests refused.
2: The Minister may, after considering the Commission’s report, decide whether to recommend that regulation be imposed and, if so, the type or types of regulation. Section 155ZZ inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Arrangements for third party to use existing works Heading inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZA: Conditions of right under section 155ZV
1: For the purpose of ensuring that an arrangement under section 155ZV Condition concerning communications
2: The owner of the existing works (and not the third party)—
a: is the person responsible for all communications with the landowner concerning the existing works, in so far as the communications involve fibre optic works; and
b: is the only person who may conduct those communications, unless—
i: the landowner authorises the third party to conduct those communications, either generally or from time to time; or
ii: it is necessary for the third party to communicate with the landowner because there are circumstances of probable danger to life or property or it is immediately necessary to maintain the continuity of telecommunications services. Condition concerning compensation
3: The owner of the existing works (and not the third party, except as provided in section 155ZZC(3) section 155ZZC Section 155ZZA inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Rights and obligations concerning exercise of rights Heading inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZB: Powers and duties of owners of existing works and landowners
1: The provisions of the Electricity Act 1992
a: as if every reference to existing works in those provisions included fibre optic works; and
b: with all other necessary modifications.
2: The provisions of the Electricity Act 1992
a: section 22
b: section 22A
c: section 23
d: section 23A
e: section 23B
f: section 23C
g: section 23D
h: section 23E
i: section 23F Section 155ZZB inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZC: Compensation for damage, etc
1: Every person who has a right in respect of, or interest in, any land or property that is damaged or injuriously affected by an owner of existing works or a third party exercising any of the statutory rights given by this subpart is entitled to full compensation for all loss, injury, or damage that the person suffers as a result.
2: The owner of the existing works is liable to the landowner for payment of the compensation, regardless of whether the owner of the existing works, a third party within the meaning of section 155ZS
3: However, subsection (2) does not prevent an owner of existing works from claiming an indemnity or a contribution from the third party where the owner of the existing works alleges that the third party was wholly or partly responsible.
4: If the landowner and the owner of the existing works are unable to reach an agreement concerning compensation for loss, injury, or damage suffered by the landowner,—
a: a claim for compensation under this section may be made within the time and in the manner specified in the Public Works Act 1981
b: the provisions of that Act, as far as they are applicable and with all necessary modifications, apply in relation to claims under this section. 1992 No 122 s 57 s 154 Section 155ZZC inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Open access obligations Heading inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZD: Services provided using rights under subpart
1: An owner of existing works who provides a telecommunications service, relying on the rights under this subpart, using repurposed fibre optic cable must,—
a: where capacity exists, offer a layer 1 service and provide that service on non-discriminatory terms; and
b: if the owner of the existing works elects to offer a layer 2 service, provide that service on an open access basis and on non-discriminatory terms.
2: An owner of existing works who provides a telecommunications service, relying on the rights under this subpart, using fibre optic cable other than repurposed fibre optic cable must—
a: offer a layer 2 service and provide that service on an open access basis and on non-discriminatory terms; and
b: if the owner of the existing works elects to provide a layer 1 service, offer that service on an open access basis and on non-discriminatory terms.
3: If an owner of existing works enters into an arrangement with a third party under section 155ZV
4: In this section, non-discrimination non-discriminatory Section 155ZZD inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZE: Power to grant relief in respect of breach of open access obligations
If, on the application of the Commission, it appears to the High Court that an owner of existing works or a third party intends to engage, is engaging, or has engaged in conduct that constitutes, or would constitute, a breach of section 155ZZD Section 155ZZE inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZF: Undertaking under Part 4AA overrides open access obligations under subpart
If a person uses the rights under this subpart as part of a build of infrastructure under the UFB initiative, the provisions of the deed of undertaking entered into by that person under Part 4AA Section 155ZZF inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZG: Right of entry does not affect existing works owner’s rights and obligations under Electricity Act 1992
The right of entry under section 155ZT Electricity Act 1992 Section 155ZZG inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017
155ZZH: Regulations
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations that—
a: prescribe aesthetic standards concerning the way in which fibre optic technology and associated equipment must be installed when exercising the rights under this subpart; and
b: prescribe procedural standards for how communications with landowners are undertaken and how persons exercising the rights given by this subpart must act when on private property; and
c: prescribe protocols for ensuring the interoperability of equipment installed; and
d: prescribe minimum clearance distances for fibre optic works that involve existing works; and
e: impose regulation on the rights given by this subpart, in relation to existing works that the owners of those works may confer on third parties under this subpart.
2: The Minister must, before recommending the making of regulations under this section,—
a: consult the Minister who is responsible for the administration of the Electricity Act 1992
b: in the case of regulations under subsection (1)﻿(e), consult the Commission after taking the steps in section 155ZZ
3: Failure to comply with subsection (2) does not affect the validity of the regulations.
4: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 155ZZH inserted 3 May 2017 section 13 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 155ZZH(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
4AA: Services provided using networks developed with Crown funding: Undertakings regime and Commerce Act 1986 authorisations
Part 4AA inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
1: Preliminary provisions
Subpart 1 inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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
b: restricts unbundling of point-to-multipoint layer 1 services before 1 January 2020 in respect of those service providers ( section 156AP
c: requires those service providers to disclose information concerning costs and other matters in accordance with requirements of the Commission ( subpart 3
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
e: provides certain Commerce Act 1986 subpart 5 subpart 6
2: This section is intended only as a guide to the general scheme and effect of this Part. Section 156AA inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AB: Interpretation
In this Part, unless the context otherwise requires,— access seeker arm's-length section 69D Crown disclose equivalence 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 layer 1 service New Zealand Government Ultra-Fast Broadband Initiative Invitation to Participate in Partner Selection Process LFC local fibre company
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 non-discrimination point-to-multipoint layer 1 service prescribed relevant service
a: in subparts 2 3
b: in subpart 4 ; and
c: in subpart 7 section 156AZE Rural Broadband Initiative service provider UFB 2 UFB partner undertaking Section 156AB inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156AB relevant service amended 3 May 2017 section 14(1) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AB relevant service inserted 3 May 2017 section 14(2) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AB UFB 2 inserted 3 May 2017 section 14(3) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AB UFB initiative repealed 13 November 2018 section 39(8) Telecommunications (New Regulatory Framework) Amendment Act 2018
2: Undertakings relating to networks developed with Crown funding as part of UFB initiative
Subpart 2 inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Requirements for undertakings Heading inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 the specified date
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 the specified date
iii: achieve equivalence in relation to the supply of unbundled layer 1 services on and after the specified date
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.
6: In this section,— specified date
a: in relation to UFB 1 LFCs, 1 January 2020, unless paragraph (c) applies; and
b: in relation to UFB 2 LFCs, 1 January 2026; and
c: in relation to UFB 1 LFCs that win contracts for UFB 2,—
i: 1 January 2020 for the UFB 1 part of the relevant network; and
ii: 1 January 2026 for the UFB 2 part of the relevant network UFB 1 Section 156AD inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156AD(2)﻿(b) amended 3 May 2017 section 15(1) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AD(2)﻿(c)﻿(ii) amended 3 May 2017 section 15(1) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AD(2)﻿(c)﻿(iii) amended 3 May 2017 section 15(1) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AD(6) inserted 3 May 2017 section 15(2) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AD(6) UFB 1 amended 13 November 2018 section 39(9) Telecommunications (New Regulatory Framework) Amendment Act 2018
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
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.
4: A determination under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	notify it in the Gazette •	publish it on the Internet in an electronic form that is publicly accessible (at all reasonable times) •	make it available for inspection free of charge at the head office of the Ministry (during office hours) •	make it available for sale at a reasonable price Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 156AE inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156AE(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
156AF: Minister must issue and consult on draft determination
Before making a determination under section 156AE Section 156AF inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AG: Procedural requirements for determination
Section 156AG repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Process for submission and consideration of undertakings Heading inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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
5: The Minister must notify his or her approval of an undertaking by notice in the Gazette Section 156AI inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Implementation of undertakings Heading inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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)
a: properly executed by, and binding on, the LFC; and
b: given in favour of the Crown. Section 156AJ inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Variation and termination of undertakings Heading inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AM: Procedure for variation of undertaking
1: An LFC may submit a request for a variation of an undertaking under section 156AL
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 Section 156AM inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156ANA: Amendment or consolidation of undertaking
1: The Minister may approve 1 or both of the following:
a: an amendment to an undertaking, if the amendment is necessary or desirable for the purpose of making the undertaking consistent with this Act:
b: the consolidation of 2 or more undertakings.
2: Sections 156AI to 156AK Section 156ANA inserted 13 November 2018 section 22 Telecommunications (New Regulatory Framework) Amendment Act 2018
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 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Effect of undertakings in relation to unbundling of certain services Heading inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Enforcement of undertakings Heading inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AQ: Enforcement and remedies under Part 4A
Sections 156L 156M 156O to 156R Part 4A Section 156AQ inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AS: Interrelationship of remedies
1: Nothing in this Part or Part 4A
2: Any right of action or other remedy available under this Part or Part 4A
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 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
3: Information disclosure by LFCs with undertakings
Subpart 3 repealed 1 January 2022 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
156AT: Purpose
Section 156AT repealed 1 January 2022 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
156AU: Commission must require disclosure by LFCs
Section 156AU repealed 1 January 2022 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
156AV: Further powers of Commission relating to information disclosure
Section 156AV repealed 1 January 2022 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
156AW: Commission may publish reports, etc, on information collected
Section 156AW repealed 1 January 2022 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
4: Undertakings relating to networks developed with Crown funding as part of Rural Broadband Initiative
Subpart 4 inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AX: Interpretation of this subpart
In this subpart, unless the context otherwise requires,— relevant service service provider Section 156AX inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AZ: Application of provisions in subpart 1
Sections 156AH to 156AO 156AQ to 156AS Section 156AZ inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156AZ amended 13 November 2018 section 23 Telecommunications (New Regulatory Framework) Amendment Act 2018
5: Commerce Act 1986 authorisations in respect of Rural Broadband Initiative
Subpart 5 repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
156AZA: Restrictive trade practices authorisations in respect of Telecom and Vodafone participation in Rural Broadband Initiative
Section 156AZA repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
6: Commerce Act 1986 authorisations in respect of Ultra-fast Broadband Initiative
Subpart 6 added 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156AZB: Interpretation for this subpart
In this subpart, unless the context otherwise requires,— fibre optic network assets Telecom Chorus, Spark, and a successor to Chorus or Spark telecommunications network company Section 156AZB inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156AZB Telecom amended 13 November 2018 section 41(3) Telecommunications (New Regulatory Framework) Amendment Act 2018
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 that is 2 years after
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.
2A: Despite subsection (2), the authorisations—
a: apply to any contract, arrangement, or understanding that is entered into in respect of UFB 2 before the date that is 2 years after
b: do not apply to any contract arrangement or understanding in respect of UFB 2 that is entered into more than 2 years after the date on which this subsection 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)
4: Sections 65 91 to 97
5: The effect of the authorisations is the same as that stated in section 58A(1) and (2) Section 156AZC inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156AZC(2)﻿(a) amended 13 November 2018 section 41(4) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156AZC(2A) inserted 3 May 2017 section 16 Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AZC(2A)﻿(a) amended 13 November 2018 section 41(5) Telecommunications (New Regulatory Framework) Amendment Act 2018
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 , except an acquisition under UFB 2
2A: The authorisations—
a: apply to any acquisition under UFB 2 that is made before the date that is 2 years after
b: do not apply to any acquisition under UFB 2 that is made more than 2 years after the date on which this subsection comes into force.
3: The authorisations must be treated as if they were authorisations granted by the Commerce Commission under section 67(3)﻿(b)
3A: However, if the authorisations are for any acquisitions under UFB 2, the authorisations must be treated as if they were authorisations granted by the Commission under section 67(3)﻿(b)
4: Sections 91 to 97
5: The effect of the authorisations is the same as that stated in section 69 Section 156AZD inserted 1 July 2011 section 81 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156AZD(2) amended 3 May 2017 section 17(1) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AZD(2A) inserted 3 May 2017 section 17(2) Telecommunications (Property Access and Other Matters) Amendment Act 2017 Section 156AZD(2A)﻿(a) amended 13 November 2018 section 41(6) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156AZD(3A) inserted 3 May 2017 section 17(3) Telecommunications (Property Access and Other Matters) Amendment Act 2017
7: Commerce Act 1986 authorisations in respect of Rural Broadband Initiative 2 and Mobile Black Spot Fund
Subpart 7 inserted 18 August 2017 section 18 Telecommunications (Property Access and Other Matters) Amendment Act 2017
156AZE: Interpretation for this subpart
In this subpart, unless the context otherwise requires,— MBSF RBI2 relevant service
a: in relation to RBI2, a wholesale telecommunications service that is provided using, or that provides access to, infrastructure forming part of a broadband network where infrastructure was constructed with funding provided, in whole or in part, by the Crown as part of RBI2; and
b: in relation to MBSF, a wholesale service that is provided using, or that provides access to, a cellular mobile telephone network constructed, in whole or in part, with money provided by the Crown as part of the MBSF service provider Section 156AZE inserted 18 August 2017 section 18 Telecommunications (Property Access and Other Matters) Amendment Act 2017
156AZF: Restrictive trade practices authorisations in respect of transactional arrangements for RBI2 and MBSF
1: Any contract, arrangement, or understanding between the Crown and 1 or more service providers to provide funding for those service providers, in accordance with RBI2 or the MBSF, is authorised.
2: The authorisation applies 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 that it was entered into.
3: The authorisation does 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.
4: The authorisation must be treated as if it were an authorisation granted by the Commission under section 58(1), (2), (5), and (6)
5: Sections 65 91 to 97
6: The effect of the authorisation is the same as the effect stated in section 58A(1) and (2) Section 156AZF inserted 18 August 2017 section 18 Telecommunications (Property Access and Other Matters) Amendment Act 2017
4A: Enforcement
Part 4A inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
1: Enforcement of statutory and regulatory provisions
Subpart 1 inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Preliminary Heading inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
156A: Application of section 156B
1: Section 156B
a: fails, without reasonable excuse, to comply with section 22A
b: fails, without reasonable excuse, to comply with a notice under section 30F
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 subpart 1
e: fails, without reasonable excuse, to provide to the Commission not later than the time specified by it—
i: the statement referred to in section 45(2)﻿(b)﻿(i)
ii: all the information referred to in section 45(2)﻿(b)﻿(ii)
f: knowingly provides false or misleading information or documents under section 45 subpart 1
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 156AU
h:
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)
o: fails, without reasonable excuse, to comply with a Commission RSQ code:
p: fails, without reasonable excuse, to comply with the Commission 111 contact code:
q: fails, without reasonable excuse, to comply with the copper withdrawal code.
2: Section 156B
a: section 69L
b: section 69T Section 156A inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156A(1)﻿(fa) inserted 30 November 2011 section 36 section 64(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(fb) inserted 30 November 2011 section 36 section 64(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(g) amended 13 November 2018 section 39(10) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156A(1)﻿(g) amended 1 July 2011 section 82(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(h) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156A(1)﻿(i) substituted 1 July 2011 section 24(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(ia) inserted 1 July 2011 section 24(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(ib) inserted 1 July 2011 section 24(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(j) substituted 1 July 2011 section 24(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(ja) inserted 1 July 2011 section 24(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(la) inserted 1 July 2011 section 24(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(lb) inserted 1 July 2011 section 24(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(lba) inserted 30 November 2011 section 36 section 60 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(lbb) inserted 30 November 2011 section 36 section 60 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(lc) inserted 1 July 2011 section 24(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(ld) inserted 1 July 2011 section 24(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(ma) amended 1 July 2011 section 82(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156A(1)﻿(o) inserted 13 November 2018 section 28 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156A(1)﻿(p) inserted 13 November 2018 section 28 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156A(1)﻿(q) inserted 13 November 2018 section 28 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156A(2) added 30 November 2011 section 36 section 64(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156B: Enforcement actions that Commission may take
1: The Commission may take 1
a: serve a civil infringement notice on the person under section 156D
b: apply to the High Court for an order, under section 156L ; or
c: in relation to a person who commits a breach referred to in section 156A(1)﻿(o), (p), or (q) section 156CA
1A: The Commission may, in addition to or instead of taking action under subsection (1), take 1 or both of the following actions against a person who commits a breach referred to in section 156A(1)﻿(o)
a: apply to the High Court for an order under section 156MA
b: apply to the High Court for an order under section 156MB
1B: The Commission may, in addition to or instead of taking action under subsection (1), take 1 or both of the following actions against a person who commits a breach referred to in section 156A(1)﻿(q)
a: apply to the High Court for an order under section 156MC
b: apply to the High Court for an order under section 156MD
2: This section does not limit any power conferred on the Commission by or under section 15 Section 156B inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156B(1) amended 13 November 2018 section 29(1) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156B(1)﻿(b) amended 13 November 2018 section 29(2) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156B(1)﻿(c) inserted 13 November 2018 section 29(3) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156B(1A) inserted 13 November 2018 section 29(4) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156B(1B) inserted 13 November 2018 section 29(4) Telecommunications (New Regulatory Framework) Amendment Act 2018
156BA: Enforcement actions that end-user may take
1: If a person commits a breach referred to in section 156A(1)﻿(q) clause 1
a: apply to the High Court for an order under section 156MC
b: apply to the High Court for an order under section 156MD
2: An end-user may take the action referred to in subsection (1) whether or not the Commission has taken action against the person under section 156B Section 156BA inserted 13 November 2018 section 30 Telecommunications (New Regulatory Framework) Amendment Act 2018
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
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 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Enforceable undertakings in relation to Commission RSQ code or copper withdrawal code Heading inserted 13 November 2018 section 31 Telecommunications (New Regulatory Framework) Amendment Act 2018
156CA: Commission may accept undertakings
1: The Commission may accept a written undertaking given by, or on behalf of, a person in connection with any matter relating to the enforcement of a Commission RSQ code or the copper withdrawal code.
2: The person may withdraw or vary the undertaking with the consent of the Commission. 1986 No 121 s 46A Section 156CA inserted 13 November 2018 section 31 Telecommunications (New Regulatory Framework) Amendment Act 2018
156CB: Enforcement of undertakings
1: If the Commission considers that a person who has given an undertaking under section 156CA
2: The High Court may make any of the following orders if it is satisfied that the person has, without reasonable excuse, breached a term of the undertaking:
a: an order directing the person to comply with the term:
b: an order directing the person to pay to the Crown—
i: an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach; or
ii: any pecuniary penalty that the court determines to be appropriate (up to the maximum amount specified in section 156L(3)﻿(c)
c: any order that the court thinks appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach:
d: an order for any consequential relief that the court thinks appropriate.
3: Section 156L(4) to (7) 1986 No 121 s 46B Section 156CB inserted 13 November 2018 section 31 Telecommunications (New Regulatory Framework) Amendment Act 2018 Civil infringement notice Heading inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
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
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
g: any other prescribed information (if any). Section 156D inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
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 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
156F: Commission must consider objection
1: The Commission must—
a: consider every objection made in accordance with section 156E
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
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 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
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
b: in accordance with section 156F(3)
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 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
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 the 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 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156H(2) amended 1 March 2017 section 261 District Court Act 2016
156I: Right to appeal
1: A person may appeal to the District Court
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)
3: An appeal under subsection (1) does not operate as a stay of the civil infringement notice. Section 156I inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156I(1) amended 1 March 2017 section 261 District Court Act 2016
156J: Decision on appeal
1: The District Court section 156I
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 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156J(1) amended 1 March 2017 section 261 District Court Act 2016
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
b: if an objection is made under section 156E section 156I
c: if the Commission withdraws the relevant civil infringement notice under section 156F
d: if an appeal under section 156I Section 156K inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Pecuniary penalty Heading inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
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 Part 2A
ab: the person has failed, without reasonable excuse, to comply with an undertaking under Part 4AA
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
b: $10 million for a breach referred to in section 69L
ba: $10 million for a breach referred to in section 69T
bb: $10 million for a breach referred to in section 69XG
bc: $1 million for a breach referred to in section 156A(fa) section 69F
bd: $1 million for a breach referred to in section 156A(fb) section 69H
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 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156L(1)﻿(a) amended 30 November 2011 section 36 section 65(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(1)﻿(ab) inserted 1 July 2011 section 83(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(2) substituted 1 July 2011 section 83(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(3)﻿(ab) inserted 1 July 2011 section 83(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(3)﻿(b) substituted 30 November 2011 section 36 section 65(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(3)﻿(ba) inserted 30 November 2011 section 36 section 65(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(3)﻿(bb) inserted 30 November 2011 section 36 section 65(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(3)﻿(bc) inserted 30 November 2011 section 36 section 65(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156L(3)﻿(bd) inserted 30 November 2011 section 36 section 65(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156M: Further penalty may be imposed for continuing breach
1: In addition to a pecuniary penalty imposed under section 156L
a: $500,000 for a breach referred to in section 156L(1)﻿(a)
aa: $500,000 for a breach referred to in section 69L
ab: $500,000 for a breach referred to in section 69T
ac: $50,000 for a breach referred to in section 156A(fa) or (fb)
b:
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
b: ends on the day on which the breach is remedied. Section 156M inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156M(1)﻿(aa) inserted 30 November 2011 section 36 section 66 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156M(1)﻿(ab) inserted 30 November 2011 section 36 section 66 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156M(1)﻿(ac) inserted 30 November 2011 section 36 section 66 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156M(1)﻿(b) repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018 Additional remedies in relation to breach of Commission RSQ code Heading inserted 13 November 2018 section 32 Telecommunications (New Regulatory Framework) Amendment Act 2018
156MA: Order to disclose information or publish advertisement
1: The High Court may make 1 or both of the following orders if the High Court is satisfied, on the application of the Commission, that a person has committed a breach referred to in section 156A(1)﻿(o)
a: an order requiring that person, or any other person involved in the breach, to disclose to the public, or to a particular person or class of persons, the information or class of information that is specified in the order, being information that is in the possession of the person to whom the order is directed or to which that person has access:
b: an order requiring that person, or any other person involved in the breach, to publish corrective statements the terms of which are specified in, or are to be determined in accordance with, the order.
2: The information must be disclosed or published—
a: in the manner and at the times that are specified in the order; and
b: at the person’s own expense.
3: The High Court may hear and determine an application in conjunction with any other proceedings under this Part. 1986 No 121 s 42 Section 156MA inserted 13 November 2018 section 32 Telecommunications (New Regulatory Framework) Amendment Act 2018
156MB: Other orders for breach of Commission code
1: The High Court may make 1 or more of the following orders if the High Court is satisfied, on the application of the Commission, that a person ( person X section 156A(1)﻿(o) or (p)
a: an order directing person X to refund money or return property to any other person:
b: an order directing person X to pay to any other person the amount of any loss or damage caused to that other person by the conduct of person X:
c: an order directing person X, at person X’s own expense, to supply a service to any other person:
d: an order declaring all or part of a contract made between person X and any other person, or a collateral arrangement relating to such a contract,—
i: to be void; and
ii: if the court thinks fit, to have been void at all times on and after a date specified in the order, which may be before the date on which the order is made:
e: an order in respect of a contract made between person X and any other person, or a collateral arrangement relating to such a contract,—
i: varying the contract or the arrangement in the manner specified in the order; and
ii: if the court thinks fit, declaring the varied contract or arrangement to have had effect on and after a date specified in the order, which may be before the date on which the order is made.
2: The High Court may hear and determine an application under subsection (1) in conjunction with any other proceedings under this Part. 1986 No 121 s 43 Section 156MB inserted 13 November 2018 section 32 Telecommunications (New Regulatory Framework) Amendment Act 2018 Additional remedies in relation to breach of copper withdrawal code Heading inserted 13 November 2018 section 32 Telecommunications (New Regulatory Framework) Amendment Act 2018
156MC: Other orders for breach of copper withdrawal code
1: The High Court may make 1 or both of the following orders if the High Court is satisfied, on the application of the Commission or an end-user, that a person has committed a breach referred to in section 156A(1)﻿(q)
a: an order directing the person to pay to an end-user the amount of any loss or damage caused to the end-user by the conduct of the person:
b: an order directing the person, at the person’s own expense, to supply a service to an end-user.
2: The High Court may hear and determine an application under subsection (1) in conjunction with any other proceedings under this Part.
3: An order under subsection (1)﻿(b) must not be inconsistent with a restriction that applies under subpart 3 1986 No 121 s 43 Section 156MC inserted 13 November 2018 section 32 Telecommunications (New Regulatory Framework) Amendment Act 2018
156MD: Injunctions for breach of copper withdrawal code
1: If the High Court is satisfied, on the application of the Commission or an end-user, that a person has committed a breach referred to in section 156A(1)﻿(q)
2: The High Court may hear and determine an application under subsection (1) in conjunction with any other proceedings under this Part.
3: Sections 88 88A 1986 No 5 s 81 Section 156MD inserted 13 November 2018 section 32 Telecommunications (New Regulatory Framework) Amendment Act 2018
2: Enforcement of determinations, approved codes, and
Subpart 2 inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Subpart 2 heading amended 1 July 2011 section 84 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
156N: Interpretation
In sections 156O to 156R enforceable matter
a: a determination made under section 27
b: a standard terms determination made under section 30M
c:
d: a designated multinetwork service determination made under section 39
e: an undertaking Part 2A
ea: an undertaking under Part 4AA
f: an approved code under Schedule 2
g: a registered undertaking under Schedule 3A party Part 2A 4AA Section 156N inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156N enforceable matter repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 156N enforceable matter amended 1 July 2011 section 85(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156N enforceable matter inserted 1 July 2011 section 85(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156N party substituted 1 July 2011 section 85(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 4AA
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
ii: in the case of a complaint by a party relating to an undertaking under Part 2A section 69W
iii: in the case of a complaint by a party relating to an undertaking under Part 4AA section 156AC
b: may consider the financial means of the complainant.
5: For the purposes of subsection (2)﻿(b)﻿(i), section 58
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 4AA Section 156O inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156O(1) substituted 1 July 2011 section 86(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156O(1)﻿(b) substituted 30 November 2011 section 36 section 67(1) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156O(4) substituted 1 July 2011 section 86(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156O(4)﻿(a)﻿(ii) substituted 30 November 2011 section 36 section 67(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011 Section 156O(7) substituted 1 July 2011 section 86(3) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 section 30M section 156O
b: for a breach of a designated multinetwork service determination, an approved code, a registered undertaking, an undertaking under Part 2A 4AA 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 section 59 Section 156P inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006 Section 156P(2)﻿(b) amended 1 July 2011 section 87 Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
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 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
156R: Limit on amount of pecuniary penalty
The amount of any pecuniary penalty imposed under section 156Q(2) Section 156R inserted 22 December 2006 section 54 Telecommunications Amendment Act (No 2) 2006
5: Miscellaneous
157AA: Minister must review regulatory framework
Section 157AA repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
157: 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: 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)
cc: prescribing the time within and the manner in which a written objection to a civil infringement notice must be made under section 156E
cd: prescribing any other information that a notice published by the Commission under section 156K
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:
ci: prescribing matters for the purposes of the copper withdrawal code:
d: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 157(1)﻿(ca) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)﻿(cb) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)﻿(cc) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)﻿(cd) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)﻿(ce) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)﻿(cf) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)﻿(cg) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)﻿(ch) inserted 22 December 2006 section 55 Telecommunications Amendment Act (No 2) 2006 Section 157(1)﻿(ci) inserted 13 November 2018 section 11 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 157(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
158: Enactments amended
Section 158 repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
159: Certain provisions in 1987 Act repealed
Section 159 repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
160: Transitional provision for declarations made under section 2A of 1987 Act
1: Despite the repeal of section 2A section 159
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
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 (other than facilities used exclusively for broadcasting)
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: The following are secondary legislation ( see Part 3
a: an order under subsection (1)﻿(a):
b: a notice under subsection (1)﻿(b). The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under subsection (1)﻿(a). Legislation Act 2019 requirements for secondary legislation made under subsection (1)﻿(a) Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under subsection (1)﻿(b). Legislation Act 2019 requirements for secondary legislation made under subsection (1)﻿(b) Publication The maker must publish it in the Gazette LA19 ss 73 74(1)﻿(a) cl 14 Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 160(1)﻿(b) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 160(2)﻿(a) amended 13 November 2018 section 39(11) Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 160(3) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
161: Transitional provision relating to repeal of section 5C of 1987 Act
Section 161 repealed 13 November 2018 section 38 Telecommunications (New Regulatory Framework) Amendment Act 2018
6: Fibre fixed line access services
Part 6 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
1: General
Subpart 1 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
162: Purpose
The purpose of this Part is to promote the long-term benefit of end-users in markets for fibre fixed line access services by promoting outcomes that are consistent with outcomes produced in workably competitive markets so that regulated fibre service providers—
a: have incentives to innovate and to invest, including in replacement, upgraded, and new assets; and
b: have incentives to improve efficiency and supply fibre fixed line access services of a quality that reflects end-user demands; and
c: allow end-users to share the benefits of efficiency gains in the supply of fibre fixed line access services, including through lower prices; and
d: are limited in their ability to extract excessive profits. 1986 No 5 s 52A Section 162 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
163: Overview
1: In this Part,—
a: subpart 1 contains general provisions and defines terms used in this Part:
b: subpart 2
c: subpart 3
d: subpart 4
e: subpart 5
f: subpart 6
g: subpart 7
h: subpart 8
i: subpart 9
j: subpart 10
2: This section is intended only as a guide to the general scheme and effect of this Part. 1986 No 5 ss 52 52B Section 163 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
164: Interpretation
1: In this Part, unless the context otherwise requires,— anchor service section 227 claw-back section 165 contract price Crown financing direct fibre access service section 228 first regulatory period section 207 information disclosure requirement
a: applies to a regulated fibre service provider who is prescribed in regulations made under section 226
b: is specified in a section 170 input methodology section 176 as referred to in section 180 point-to-multipoint layer 1 service section 156AB price
a: means 1 or more of individual prices, aggregate prices, or revenues (whether in the form of specific numbers, or in the form of formulas by which specific numbers are derived); and
b: includes any related terms of payment publicly disclose section 170 quality dimensions section 170 determination section 170 UFB partner section 156AB unbundled fibre service section 229
2: In this Part, the test for related parties is the same as the test in section 69U Section 164 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 164(1) input methodology amended 28 October 2021 section 3 Secondary Legislation Act 2021
165: Meaning and application of claw-back
1: A reference to the Commission applying claw-back
a: requiring a regulated fibre service provider to lower its prices on a temporary basis in order to allow end-users to be compensated for some or all of any over-recovery that occurred under the prices previously charged by the regulated fibre service provider:
b: allowing a regulated fibre service provider to recover some or all of any shortfall in its revenues that occurred under the prices previously charged by the regulated fibre service provider.
2: If the Commission requires a regulated fibre service provider to lower its prices, it must also require that the lowering of prices must be spread over time in order to minimise undue financial hardship to the regulated fibre service provider.
3: If the Commission allows a regulated fibre service provider to recover any shortfall, it must require that any recovery must be spread over time in order to minimise price shocks to end-users. 1986 No 5 s 52D Section 165 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
166: Matters to be considered by Commission and Minister
1: This section applies if the Commission or the Minister is required under this Part to make a recommendation, determination, or decision.
2: The Commission or Minister must make the recommendation, determination, or decision that the Commission or Minister considers best gives, or is likely to best give, effect—
a: to the purpose in section 162
b: to the extent that the Commission or Minister considers it relevant, to the promotion of workable competition in telecommunications markets for the long-term benefit of end-users of telecommunications services. Section 166 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
2: Regulating fibre fixed line access services
Subpart 2 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
167: Regulation of fibre fixed line access services
1: Fibre fixed line access services are regulated as provided for by this Part.
2: A regulated fibre service provider must comply with—
a: the requirements of this Part that apply to the regulated fibre service provider; and
b: every section 170
3: The following apply in relation to a regulated fibre service provider on and after the date on which the provider is obliged to comply with this Part or (as the case requires) with a section 170
a: sections 212 to 218
b: sections 88 88A 90
4: The Commission may exercise any of its powers under this Act for the purpose of monitoring compliance by regulated fibre service providers with regulation under this Part. 1986 No 5 ss 52F 54E Section 167 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
168: Information disclosure regulation
Fibre fixed line access services supplied by a regulated fibre service provider who is prescribed in regulations made under section 226 see subpart 4 Section 168 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
169: Price-quality regulation
Fibre fixed line access services supplied by a regulated fibre service provider who is prescribed in regulations made under section 226 see subpart 5 Section 169 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
170: Determinations by Commission under this section
1: The Commission must make determinations under this section specifying how 1 or both of the following apply to regulated fibre service providers:
a: information disclosure regulation:
b: price-quality regulation.
2: Determinations must—
a: set out, for each type of regulation, the requirements that apply to each regulated fibre service provider; and
b: set out any time frames (including the regulatory periods) that must be complied with or that apply; and
c: specify the input methodologies that apply; and
d: be consistent with this Part.
3: It is not necessary for a single determination to address all matters relating to fibre fixed line access services, or to a regulated fibre service provider, and different parts of any determination may come into effect at different times.
4: A determination made under this section may require a regulated fibre service provider to comply with the requirements set out in any other determination that has been made under this section in respect of fibre fixed line access services.
5: A determination under this section and an amendment to a determination are secondary legislation ( see Part 3
6: The Commission must, as soon as practicable after making a determination under this section, give to each regulated fibre service provider to whom the determination relates notice of the determination and where it is available. 1986 No 5 s 52P The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	give public notice in accordance with section 6 •	comply with subsection (6) Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 170 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 170(5) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 170(6) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
171: Determinations must reflect actual costs of Crown financing
1: This section applies if a section 170
2: The Commission must ensure that the maximum revenues, or the maximum price or prices, reflect, in respect of any Crown financing, the actual financing costs incurred by the provider (or a related party) in the regulatory period to which the determination applies. Section 171 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
172: When Commission must make initial section 170 determinations
1: The Commission must, after the date on which the relevant input methodologies are determined under section 178 section 170
a: how price-quality regulation applies to regulated fibre service providers during the first regulatory period; and
b: how information disclosure regulation applies to regulated fibre service providers from the start of the first regulatory period.
2: A section 170 Section 172 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
173: Amendment of section 170 determination
1: A section 170
2: As soon as practicable after making an amendment, the Commission must give to each provider to whom the determination relates notice of the amendment and where it is available.
3:
4: 1986 No 5 s 52Q Section 173 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 173(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 173(3) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 173(4) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
3: Input methodologies
Subpart 3 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Input methodologies Heading inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
174: Purpose of input methodologies
The purpose of input methodologies is to promote certainty for regulated fibre service providers, access seekers, and end-users in relation to the rules, requirements, and processes applying to the regulation, or proposed regulation, of fibre fixed line access services under this Part. 1986 No 5 s 52R Section 174 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
175: How input methodologies apply
A relevant input methodology relating to the supply of fibre fixed line access services must be applied—
a: by each relevant regulated fibre service provider in accordance with the relevant section 170
b: by the Commission in recommending, deciding, or determining—
i: how regulation under this Part should apply to fibre fixed line access services; or
ii: the prices or quality standards applying to fibre fixed line access services. 1986 No 5 s 52S Section 175 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
176: Matters covered by input methodologies
1: The input methodologies relating to fibre fixed line access services must include, to the extent applicable to the type of regulation under consideration,—
a: methodologies for evaluating or determining the following matters in respect of the supply of the fibre fixed line access services:
i: cost of capital:
ii: valuation of assets, including depreciation, and treatment of revaluations:
iii: allocation of common costs (for example, between activities, businesses, access seekers, regulated services, or geographic areas):
iv: treatment of taxation; and
b: quality dimensions; and
c: regulatory processes and rules, such as—
i: the specification and definition of prices, including identifying any costs that can be passed through to prices (which may not include the legal costs of any appeals against input methodology determinations under this Part); and
ii: identifying circumstances in which a price-quality path may be reconsidered within a regulatory period; and
d: methodologies for capital expenditure projects, including the following:
i: requirements that must be met by the regulated fibre service provider, including the scope and specificity of information required, the extent of independent verification and audit, and the extent of consultation and agreement with other parties (including access seekers or end-users); and
ii: the criteria the Commission will use to evaluate capital expenditure proposals; and
iii: time frames and processes for evaluating capital expenditure proposals, including what happens if the Commission does not comply with those time frames.
2: Every input methodology must, as far as is reasonably practicable,—
a: set out the matters listed in subsection (1) in sufficient detail so that each affected regulated fibre service provider is reasonably able to estimate the material effects of the methodology on the provider; and
b: set out how the Commission intends to apply the input methodology to fibre fixed line access services; and
c: be consistent with the other input methodologies that relate to fibre fixed line access services.
3: Any methodologies referred to in subsection (1)﻿(a)﻿(ii) that relate to establishing the initial value of fibre assets (as defined in section 177 1986 No 5 ss 52T 54S Section 176 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
177: Initial value of fibre assets
1: The initial value of a fibre asset is calculated by—
a: taking the cost—
i: incurred by a regulated fibre service provider in constructing or acquiring the fibre asset, net of specified capital contributions; or
ii: if the fibre asset was owned by Chorus before 1 December 2011, recorded by Chorus for the fibre asset in its published general purpose financial statements as of 1 December 2011; and
b: adjusting that cost for accumulated depreciation and impairment losses (if any) recognised by the regulated fibre service provider (ignoring any accounting adjustment for Crown financing), as at the implementation date, under generally accepted accounting practice in New Zealand.
2: Each regulated fibre service provider is treated, as at the implementation date, as owning a fibre asset with an initial value equal to the financial losses, as determined by the Commission, incurred by the provider in providing fibre fixed line access services under the UFB initiative for the period starting on 1 December 2011 and ending on the close of the day immediately before the implementation date.
3: In determining the financial losses under subsection (2), the Commission—
a: must take into account any accumulated unrecovered returns on investments made by the provider under the UFB initiative; and
b: in respect of any Crown financing provided in connection with those investments, must refer to the actual financing costs incurred by the provider (or a related party).
4: It is not the intention of subsections (2) and (3) that regulated fibre service providers should be protected from all risk of not fully recovering those financial losses through prices over time.
5: To avoid doubt, the initial value of a fibre asset determined under this section includes the costs incurred by the provider in relation to the asset—
a: as a direct result of meeting specific requirements of the UFB initiative; and
b: for both standard connections and non-standard connections.
6: In this section,— accumulated unrecovered returns fibre asset
a: constructed or acquired by a regulated fibre service provider; and
b: employed in the provision of fibre fixed line access services (whether or not the asset is also employed in the provision of other services) specified capital contribution
a: means a capital contribution received by a regulated fibre service provider from 1 or more of the following:
i: an access seeker:
ii: an end-user:
iii: any other person, as determined by the Commission; but
b: does not include any Crown financing standard connection non-standard connection section 155ZU Section 177 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
178: When input methodologies must be determined
1: The Commission must, not later than the implementation date, determine the input methodologies referred to in section 176
2: The Commission may, at any time after the implementation date, determine further input methodologies for fibre fixed line access services. 1986 No 5 s 52U Section 178 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
179: Commission process for determining input methodologies
1: When the Commission begins work on an input methodology, it must give public notice of its intention to do so that—
a: outlines the process that will be followed; and
b: sets out the proposed time frames.
2: During the course of its work on an input methodology, the Commission—
a: must give public notice of the draft methodology; and
b: must give interested persons a reasonable opportunity to give their views on that draft methodology; and
c: may hold 1 or more conferences; and
d: must have regard to any views received from interested persons within any time frames set.
3: Any work done or action taken (including any consultation) by the Commission on input methodologies before this section commences may be taken into account as part of the work required to be done by the Commission to comply with the requirements of subsections (1) and (2). 1986 No 5 s 52V Section 179 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
180: Status of input methodologies, amendments, and revocations
1: The following are secondary legislation ( see Part 3
a: an input methodology:
b: an amendment to an input methodology:
c: the revocation by the Commission of an input methodology.
2: The secondary legislation must be published under the Legislation Act 2019
a: if it is made by the Commission, within 10 working days after the Commission makes its determination; or
b: if it is made by the High Court on appeal, within 10 working days after the Commission receives a copy of the High Court’s decision.
3: If an input methodology or amendment is made by the High Court on appeal, the Legislation Act 2019
4: When a methodology or an amendment (but not a revocation) is published, the Commission must publish the reasons for determining the methodology, or for amending it, on the Commission’s Internet site. 1986 No 5 s 52W The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (1). Legislation Act 2019 requirements for secondary legislation referred to in subsection (1) Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	give public notice in accordance with section 6 •	comply with subsection (4) A statement of the maker’s reasons for making the secondary legislation must be published with it Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 180 replaced 28 October 2021 section 3 Secondary Legislation Act 2021
181: Changes to input methodologies
1: If the Commission proposes to amend an input methodology to make a material change, section 179
2: The Commission may amend an input methodology to make a non-material change without complying with section 179
3: If the Commission proposes to revoke an input methodology, the Commission—
a: must give public notice of its intention to do so that—
i: outlines the process that will be followed; and
ii: sets out the proposed time frames; and
b: must give interested persons a reasonable opportunity to give their views on the proposed revocation; and
c: may hold 1 or more conferences; and
d: must have regard to any views received from interested persons within any time frames set.
4: See also section 180 1986 No 5 s 52X Section 181 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 181(4) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
182: Review and date of publication of input methodologies
1: The Commission must review each input methodology no later than 7 years after its date of publication and, after that, at intervals of no more than 7 years.
2: The date of publication Legislation Act 2019
3: Section 179
4: See also section 180 1986 No 5 s 52Y Section 182 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 182(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 182(4) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Appeals against input methodology determinations Heading inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
183: Appeals against input methodology determinations
1: Any person who gave views on an input methodology determination to the Commission as part of the process under section 179
2: In this section and section 184 input methodology determination
a: the initial determination of an input methodology:
b: any determination by the Commission that amends or revokes the input methodology:
c: any determination by the Commission of an input methodology after a review of the input methodology.
3: In determining an appeal against an input methodology determination, the court may do any of the following:
a: decline the appeal and confirm the input methodology, or the revocation of the input methodology, set out in the determination:
b: allow the appeal by—
i: amending the input methodology; or
ii: revoking the input methodology and substituting a new one; or
iii: referring the input methodology determination back to the Commission with directions as to the particular matters that require amendment; or
iv: if the revocation of an input methodology is not confirmed, confirming that the input methodology still applies.
4: The court may exercise its powers under subsection (3)﻿(b) only if it is satisfied that the amended, substituted, or confirmed input methodology is (or will be, in the case of subsection (3)﻿(b)﻿(iii)) materially better in—
a: meeting the purpose of this Part or the purpose in section 174
b: to the extent that the court considers it relevant, promoting workable competition in telecommunications markets for the long-term benefit of end-users of telecommunications services.
5: If the court allows an appeal, the Commission may seek clarification from the court on any matter for the purpose of implementing the court’s decision.
6: There is a right of appeal under section 97 1986 No 5 s 52Z Section 183 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
184: Process for appeals
1: An appeal under section 183(1) the input methodology is published
2: The appeal must be by way of rehearing and must be conducted solely on the basis of the documentary information and views that were before the Commission when it made its determination, and no party may introduce any new material during the appeal.
3: The High Court must sit with 2 lay members (unless the court considers that only 1 is required).
4: Each of the lay members must have relevant experience and be appointed from the pool of people appointed under section 77
5: Section 77 1986 No 5 s 52ZA Section 184 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 184(1) amended 28 October 2021 section 3 Secondary Legislation Act 2021
185: Input methodology applies pending outcome of appeal
1: The High Court may not stay the application of section 175
2: Section 175 1986 No 5 s 53 Section 185 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
4: Information disclosure regulation
Subpart 4 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
186: Purpose of information disclosure regulation
The purpose of information disclosure regulation is to ensure that sufficient information is readily available to interested persons to assess whether the purpose of this Part is being met. 1986 No 5 s 53A Section 186 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
187: Effect of being subject to information disclosure regulation
1: A regulated fibre service provider who is subject to information disclosure regulation must—
a: publicly disclose information in accordance with the information disclosure requirements set out in the relevant section 170
b: supply to the Commission a copy of all information disclosed in accordance with the section 170
c: supply to the Commission, in accordance with a written notice by the Commission, any further statements, reports, agreements, particulars, or other information required for the purpose of monitoring the regulated fibre service provider’s compliance with the section 170
2: If a regulated fibre service provider is subject to information disclosure regulation, the Commission—
a: may monitor and analyse all information disclosed in accordance with the information disclosure requirements; and
b: must, as soon as practicable after any information is publicly disclosed, publish (on the Commission’s Internet site
3: To avoid doubt, the Commission may, as part of a summary and an analysis, include an analysis of how effective the information disclosure requirements imposed on the regulated fibre service providers are in promoting the purpose in section 162
4: In complying with subsection (2)﻿(b), 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. 1986 No 5 s 53B Section 187 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 187(2)﻿(b) amended 28 October 2021 section 3 Secondary Legislation Act 2021
188: Section 170 determination to set out information disclosure requirements
1: A section 170
a: the regulated fibre service providers to which it applies:
b: the information to be disclosed:
c: the manner in which the information is to be disclosed:
d: the form of disclosure:
e: when, and for how long, information must be disclosed:
f: the input methodologies that apply:
g: any other methodologies that are required in the preparation or compilation of the information.
2: Information required to be disclosed may include (without limitation) 1 or more of the following:
a: financial statements (including projected financial statements):
b: asset values and valuation reports:
c: prices, terms and conditions relating to prices, and pricing methodologies:
d: contracts:
e: transactions with related parties:
f: financial and non-financial performance measures:
g: plans and forecasts, including (without limitation) plans and forecasts about demand, investments, prices, revenues, quality and service levels, capacity and spare capacity, and efficiency improvements:
h: asset management plans:
i: quality performance measures and statistics:
j: assumptions, policies, and methodologies used or applied in these or other areas:
k: consolidated information that includes information about unregulated services, in which case section 189
l: information related to 1 or more parts of a fibre network.
3: The section 170
a: require disclosed information, or information from which disclosed information is derived (in whole or in part), to be verified by statutory declaration:
b: require independent audits of disclosed information:
c: require the retention of data on which disclosed information is based, and associated documentation:
d: exempt any person or class of persons, or provide for exemptions, from any requirements of the determination, and provide for the revocation of exemptions:
e: provide for transitional provisions:
f: impose any other requirements that the Commission considers necessary or desirable to promote the purpose of information disclosure regulation.
4: The section 170
5: If a section 170 determination authorises a person to grant exemptions referred to in subsection (3)﻿(d),—
a: an instrument granting or revoking an exemption is secondary legislation ( see Part 3
b: the regulations must contain a statement to that effect. 1986 No 5 s 53C The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (5)﻿(a). Legislation Act 2019 requirements for secondary legislation referred to in subsection (5)﻿(a) Publication If the section 170 LA19 ss 69 73 74 If the section 170 Legislation (Publication) Regulations 2021 Presentation The Minister must present it to the House of Representatives, unless it is excluded by section 114(2) clause 32 LA19 s 114 cl 32 Disallowance It may be disallowed by the House of Representatives, unless it is excluded by section 115 LA19 ss 115 116 This note is not part of the Act. Section 188 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 188(5) inserted 28 October 2021 regulation 67 Legislation Act (Amendments to Legislation) Regulations 2021
189: Consolidated information may also be required
1: The purpose of this section is to enable the Commission to monitor compliance with information disclosure regulation applying to fibre fixed line access services.
2: A section 170
3: If a regulated fibre service provider provides services that are not subject to regulation under this Part ( other services
a: consolidated financial statements, and any other information referred to in section 188
b: consolidated financial statements, and any other information referred to in section 188
c: reconciliation of information provided under paragraphs (a) and (b) with information disclosed in accordance with information disclosure requirements applying to the fibre fixed line access services; and
d: reconciliation of information disclosed under Part 4
4: If a regulated fibre service provider supplies goods or services that are regulated under Part 4 1986 No 5 s 53D Section 189 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
190: Charge for providing copies to public
1: A person who is required, by a section 170
2: The charge must be no more than is reasonably required to recover the costs of providing those copies. 1986 No 5 s 53E Section 190 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
191: Limited exception to obligation to apply input methodologies
1: Despite section 175
2: However, to avoid doubt, subsection (1)
a: section 187(2)
b: section 188(2) 1986 No 5 s 53F Section 191 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
5: Price-quality regulation
Subpart 5 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
192: Purpose of price-quality regulation
The purpose of price-quality regulation is to regulate the price and quality of fibre fixed line access services provided by regulated fibre service providers. 1986 No 5 s 53K Section 192 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
193: Effect of being subject to price-quality regulation
1: A regulated fibre service provider who is subject to price-quality regulation in respect of fibre fixed line access services must—
a: apply the price-quality paths set by the Commission in a section 170
b: comply with sections 198 to 201
2: For the purpose of monitoring compliance with this section, the Commission may, in addition to exercising its powers under section 98
a: a written statement that states whether the provider has complied with the price-quality paths applying to that provider:
b: a report on the written statement referred to in paragraph (a) that is signed by an auditor in accordance with any form specified by the Commission:
c: sufficient information to enable the Commission to properly determine whether a price-quality path has been complied with:
d: a certificate, in the form specified by the Commission and signed by at least 1 director of the provider, confirming the truth and accuracy of any information provided under this section. 1986 No 5 ss 53L 53N Section 193 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
194: Section 170 determination to set out price-quality path requirements
1: A section 170
2: A price-quality path must specify the following:
a: the regulatory period to which it applies:
b: in relation to prices, 1 or both of the following:
i: the maximum price or prices that may be charged by a regulated fibre service provider:
ii: the maximum revenues that may be recovered by a regulated fibre service provider:
c: the quality standards that must be met by a regulated fibre service provider:
d: the date or dates on which the price-quality path (or any part of it) takes effect:
e: the date or dates by which compliance must be demonstrated in accordance with section 193(2)
3: A price-quality path may include incentives for a regulated fibre service provider to maintain or improve its quality of supply, and those incentives may include (without limitation) any of the following:
a: penalties by way of a reduction in the provider’s maximum prices or revenues based on whether, or by what amount, the provider fails to meet the required quality standards:
b: rewards by way of an increase in the provider’s maximum prices or revenues based on whether, or by what amount, the provider meets or exceeds the required quality standards:
c: compensation schemes that set minimum standards of performance and require the provider to pay prescribed amounts of compensation if it fails to meet those standards:
d: reporting requirements, including special reporting requirements in asset management plans, if the provider fails to meet the quality standards.
4: Quality standards may, subject to any relevant input methodologies, be prescribed in any way the Commission considers appropriate (such as targets, bands, or formulas).
5: A price-quality path does not apply to a regulated fibre service provider until the date specified in the relevant section 170 1986 No 5 ss 53M 53O Section 194 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
195: Maximum revenues specified in initial price-quality paths
1: Despite section 194(2)﻿(b)
a: specify the maximum revenues that may be recovered by a regulated fibre service provider; and
b: not specify the maximum price or prices that may be charged by a regulated fibre service provider.
2: In this section and section 196 reset date section 225 Section 195 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
196: Wash-up mechanism for maximum revenues specified in initial price-quality paths
1: This section applies when the Commission specifies, in the price-quality paths for each regulatory period that starts before the reset date (except the first regulatory period), the maximum revenues that may be recovered by a regulated fibre service.
2: The Commission must, in calculating the maximum revenues, apply a wash-up mechanism that provides for any over-recovery or under-recovery of revenue by the regulated fibre service provider during the previous regulatory period to be applied in a manner that is equivalent in present value terms (as calculated in the manner that the Commission thinks fit) over 1 or more future regulatory periods.
3: To avoid doubt, the Commission may, but is not required to, apply the wash-up mechanism referred to in subsection (2) in a price-quality path for a regulatory period that starts on or after the reset date. Section 196 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
197: Smoothing revenues and prices
1: This section applies when the Commission specifies maximum prices or maximum revenues for the purpose of section 194(2)﻿(b)
2: The Commission must calculate the maximum price or revenue in a manner that is equivalent in present value terms (as calculated in the manner that the Commission thinks fit) over 2 or more regulatory periods (for example, by altering depreciation) if, in the Commission’s opinion, it is necessary or desirable to do so to minimise any undue financial hardship to a regulated fibre service provider or to minimise price shocks to end-users. Section 197 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
198: Anchor services
1: A regulated fibre service provider who is subject to price-quality regulation must provide an anchor service if an anchor service has been declared.
2: The service must be provided—
a: in accordance with any prescribed description of the service; and
b: in accordance with any prescribed conditions; and
c: during any prescribed period for the service; and
d: at a price that is no greater than any prescribed maximum price. Section 198 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
199: Direct fibre access services
1: A regulated fibre service provider who is subject to price-quality regulation must provide a direct fibre access service if a direct fibre access service has been declared.
2: The service must be provided—
a: in accordance with any prescribed description of the service; and
b: in accordance with any prescribed conditions; and
c: during any prescribed period for the service; and
d: at a price that is no greater than any prescribed maximum price. Section 199 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
200: Unbundled fibre services
1: A regulated fibre service provider who is subject to price-quality regulation must provide an unbundled fibre service if an unbundled fibre service has been declared.
2: The service must be provided—
a: in accordance with any prescribed description of the service; and
b: in accordance with any prescribed conditions; and
c: during any prescribed period for the service; and
d: at a price that is no greater than any prescribed maximum price. Section 200 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
201: Geographically consistent pricing
A regulated fibre service provider who is subject to price-quality regulation must, regardless of the geographic location of the access seeker or end-user, charge the same price for providing fibre fixed line access services that are, in all material respects, the same. Section 201 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
202: Exceptions from section 201 for trials
1: Nothing in section 201
2: The provision of a service is a trial if the service—
a: is offered by the provider for no more than 1 year; and
b: is provided under an agreement with end-users that clearly states the end date for the service; and
c: is provided to no more than 1,000 end-users over the whole period in which it is offered. Section 202 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
203: Making new section 170 determination
1: Before the end of each regulatory period, the Commission must make a new section 170
2: In making a new section 170 section 194 1986 No 5 s 53P Section 203 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
204: What happens to price-quality path if input methodologies change
1: A price-quality path may not be reopened within a regulatory period on the grounds of a change in an input methodology, except as provided in subsection (2).
2: A price-quality path must be reopened by the Commission, and a new price-quality path made by amending the relevant section 170 section 173
a: an input methodology changes as a result of an appeal under section 183
b: had the changed methodology applied at the time the price-quality path was set, it would have resulted in a materially different path being set.
3: When making a new price-quality path under subsection (2), the Commission must apply claw-back. 1986 No 5 s 53ZB Section 204 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
205: Application of Commerce Act 1986
Part 2
a: a price for a fibre fixed line access service provided by a regulated fibre service provider if—
i: that service is subject to a prescribed maximum price under this Part (whether in this Part, in regulations made under this Part, or in a section 170
ii: the price is the same as the prescribed maximum price; and
b: any matter necessary for giving effect to the prescribed maximum price referred to in paragraph (a). Section 205 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
206: Modification of undertakings under section 156AD
1: A regulated service provider is not required to achieve price equivalence in relation to the supply of an unbundled layer 1 service to the extent that the service is an input to a relevant service.
2: This section applies—
a: on and after the implementation date; and
b: despite any undertaking entered into by a regulated fibre service provider in accordance with section 156AD(2)﻿(c)
3: In this section,— layer 1 service section 156AB price equivalence section 156AB relevant service section 170 Section 206 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
6: Regulatory periods
Subpart 6 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
207: Regulatory periods
1: The first regulatory period starts on the implementation date and lasts for a period of 3 years.
2: The duration of subsequent regulatory periods must be determined by the Commission and must be between 3 and 5 years.
3: The Commission must notify the duration of each new regulatory period in a section 170 Section 207 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
7: Reviews
Subpart 7 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
208: Anchor services review
1: The Commission may, before the start of each regulatory period (including the first regulatory period), review whether, and how effectively, an anchor service meets the purpose of anchor services in subsection (7).
2: A review must consider the following in respect of an anchor service:
a: any prescribed description of the service:
b: any prescribed conditions that apply to the service:
c: any prescribed period for the service:
d: any prescribed maximum price for the service.
3: The Commission must give interested persons a reasonable opportunity to give their views on the matters subject to review and the Commission must have regard to any views received.
4: The Commission must make a recommendation to the Minister after a review for the purposes of section 227
5: The Commission must not recommend a change to the description of an anchor service unless the service (with the amended description) meets the purpose in subsection (7).
6: The Commission must not recommend a change to the prescribed maximum price of an anchor service unless,—
a: if the recommendation is made before the start of the first regulatory period, the recommended maximum price is based on the contract price for the service immediately before the implementation date, with an annual CPI adjustment mechanism; and
b: if the recommendation is made after the start of the first regulatory period, the recommended maximum price is a cost-based price.
7: The purpose of anchor services is—
a: to ensure that baseband equivalent voice and basic broadband services are available to end-users at reasonable prices; and
b: to act as an appropriate constraint on the price and quality of other fibre fixed line access services. Section 208 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
209: Price-quality review
1: The Commission may, on or after the date that is 3 years after the implementation date and at intervals of no less than 5 years thereafter, review how effectively the regulatory provisions in sections 195 199 200 section 162
2: A review must consider 1 or more of the following:
a: whether price-quality paths should, with effect from the start of a future regulatory period, continue to be required to specify the maximum revenues that may be recovered by a regulated fibre service provider ( see sections 195 196
b: whether any of the matters prescribed under section 228(2)
c: whether a point-to-multipoint layer 1 service supplied to end-users’ premises or buildings should be declared under section 229(1)
d: whether any of the matters prescribed under section 229(2)
3: The Commission must give interested persons a reasonable opportunity to give their views on the matters subject to review and the Commission must have regard to any views received.
4: The Commission must make a recommendation to the Minister following a review for the purposes of section 225 228 229
5: The Commission must not recommend a prescribed maximum price for an unbundled fibre service or a direct fibre access service unless the maximum price is a cost-based price. Section 209 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
210: Deregulation review
1: The Commission may, at any time after the implementation date, review how 1 or more fibre fixed line access services are regulated under this Part if the Commission has reasonable grounds to consider that those services—
a: should no longer be regulated under this Part; or
b: should no longer be subject to price-quality regulation under this Part.
2: For the purposes of subsection (1), the Commission may, without limitation, describe a service under review with reference to any 1 or more of the following:
a: the geographic area in which the service is supplied:
b: the service’s end-users:
c: the service providers who seek access to the service:
d: the technical specifications of the service:
e: any other circumstances in which the service is supplied.
3: The Commission must, before the start of each regulatory period (except the first regulatory period), consider whether there are reasonable grounds to start a review.
4: A review may consider the following:
a: whether competition to 1 or more fibre fixed line access services has increased or decreased in a relevant market:
b: the impact of any increase or decrease on the ability of regulated fibre service providers to exercise substantial market power:
c: whether the purpose of this Part would be better met if 1 or more fibre fixed line access services—
i: were no longer regulated under this Part; or
ii: were no longer subject to price-quality regulation under this Part.
5: The Commission must give interested persons a reasonable opportunity to give their views on the matters subject to review and the Commission must have regard to any views received.
6: The Commission must make a recommendation to the Minister after a review. Section 210 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
211: Application of Schedule 3
Despite clause 1 Schedule 3 Section 211 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
8: Enforcement and miscellaneous provisions
Subpart 8 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
212: Pecuniary penalty for contravening information disclosure requirement
1: The High Court may, on application by the Commission, order any person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—
a: has contravened any information disclosure requirement (as defined in section 164(1)
b: has attempted to contravene any such requirement; or
c: has aided, abetted, counselled, or procured any other person to contravene any such requirement; or
d: has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene any such requirement; or
e: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of any such requirement; or
f: has conspired with any other person to contravene any such requirement.
2: In subsection (1) and section 214 contravening an information disclosure requirement
a: failing to disclose information required to be disclosed:
b: failing to disclose information in the form or within the time required:
c: disclosing information that is false or misleading under an information disclosure requirement.
3: The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000 in the case of an individual, or $5,000,000 in the case of a body corporate.
4: In determining the amount of pecuniary penalty, the court must have regard to all relevant matters, including—
a: the nature and extent of the contravention; and
b: the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence); and
c: whether the person has previously been found by the court in proceedings under this Part to have engaged in similar conduct.
5: A regulated fibre service provider may not be liable to more than 1 pecuniary penalty in respect of the same conduct.
6: Proceedings under this section may be commenced at any time within 3 years after the contravention occurred. 1986 No 5 s 86 Section 212 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
213: Order requiring information disclosure requirement to be complied with
1: The High Court may, on application by the Commission, order a regulated fibre service provider to comply with an information disclosure requirement that applies to the provider.
2: An order under this section must specify the date by which, or period within which, the provider must comply with the requirement. 1986 No 5 s 86A Section 213 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
214: Offences relating to information disclosure regulation
1: A person commits an offence if—
a: the person, knowing that particular fibre fixed line access services are subject to information disclosure regulation, intentionally contravenes any information disclosure requirement relating to those services; or
b: the person is subject to an order under section 213
2: A person who commits an offence under subsection (1) is liable on conviction to a fine not exceeding $200,000 in the case of an individual, or $1,000,000 in the case of a body corporate. 1986 No 5 s 86B Section 214 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
215: Pecuniary penalty for contravening price-quality requirements
1: The High Court may, on application by the Commission, order a person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—
a: has contravened any price-quality requirement applying to fibre fixed line access services; or
b: has attempted to contravene any such requirement; or
c: has aided, abetted, counselled, or procured any other person to contravene any such requirement; or
d: has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene any such requirement; or
e: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of any such requirement; or
f: has conspired with any other person to contravene any such requirement.
2: In subsection (1) and sections 216 to 218 contravening a price-quality requirement
a: refers to a requirement imposed—
i: by a determination made under section 170 Part 6
ii: by section 193(1)﻿(b)
b: includes 1 or more of the following:
i: failing to comply with a requirement for prices, whether by charging a price for a service that is higher than the maximum price permitted, or by receiving more revenue than is permitted, or in any other way:
ii: failing to comply with any quality standards required under the price-quality regulation:
iii: failing to comply with any requirement in sections 198 to 201
3: The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000 in the case of an individual, or $5,000,000 in the case of a body corporate.
4: In setting the amount of pecuniary penalty, the court must take into account all of the following matters:
a: the nature and extent of the contravention:
b: the nature and extent of any loss or damage suffered by any person as a result of the contravention:
c: the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence):
d: whether or not the person has previously been found by the court in proceedings under this Part to have engaged in similar conduct.
5: A regulated fibre service provider may not be liable to more than 1 pecuniary penalty in respect of the same conduct.
6: Proceedings under this section may be commenced at any time within 3 years after the contravention occurred. 1986 No 5 s 87 Section 215 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
216: Compensation for contravention of price-quality requirement
1: If the High Court orders a person to pay a pecuniary penalty under section 215 aggrieved person
2: An application for an order under this section may be made by the Commission or any aggrieved person.
3: The application must be made within 1 year of the date of the pecuniary penalty order.
4: The court may make an order under this section whether or not any aggrieved person is party to the proceedings.
5: In proceedings under this section, the court may make such orders as to cost as it thinks fit. 1986 No 5 s 87A Section 216 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
217: Offence relating to price-quality regulation
1: A person commits an offence if—
a: the person, knowing that particular fibre fixed line access services are subject to price-quality regulation, intentionally contravenes a price-quality requirement in respect of the services; or
b: the person is subject to an order under section 218(1)﻿(b)
2: A person who commits an offence under subsection (1) is liable on conviction to a fine not exceeding $200,000 in the case of an individual, or $1,000,000 in the case of a body corporate. 1986 No 5 s 87B Section 217 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
218: Injunction and other orders relating to price-quality regulation
1: If the High Court is satisfied that fibre fixed line access services that are subject to price-quality regulation are being provided, or are likely to be provided, in contravention of any price-quality requirement applying with respect to those services, the court may do 1 or both of the following:
a: grant an injunction restraining any provider of those services from providing them in contravention of the price-quality requirement:
b: make an order requiring the provider to provide the services in accordance with the price-quality requirement applying to them.
2: An application for an injunction or order under this section may be made by any person. 1986 No 5 s 87C Section 218 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
219: Proceedings for pecuniary penalties
The following sections of the Commerce Act 1986
a: section 79A
b: section 79B sections 214 217 Section 219 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
220: Evidence not otherwise admissible
In the exercise of its jurisdiction under this Part, except in respect of criminal proceedings and proceedings for pecuniary penalties, the High Court may receive in evidence any statement, document, or information that would not be otherwise admissible but that may in its opinion assist it to deal effectively with the matter. 1986 No 5 s 79 Section 220 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
221: Powers of Commission under this Part
1: For the purpose of carrying out its functions and exercising its powers under this Part, the Commission may, in addition to exercising its powers under this Act and section 98
a: consult any person the Commission considers may assist it:
b: investigate any of the following:
i: how effectively and efficiently a regulated fibre service provider is providing fibre fixed line access services:
ii: how any formula, methodology, or price-quality path being considered by the Commission may be applied, or how any formula, methodology, or price-quality provision determined or authorised by the Commission has been applied, in considering proposed prices, revenue, or quality standards:
iii: how any conditions relating to the quality of fibre fixed line access services may be, or are being, fulfilled:
c: examine, consider, or investigate any activity, cost, revenue, transfer, asset valuation, circumstance, or event that is occurring or that has occurred during the previous 7 years:
d: use any information previously disclosed to the Commission under this Act or the Commerce Act 1986
e: by notice in writing, require any regulated fibre service provider—
i: to prepare and produce forecasts, forward plans, or other information; and
ii: to apply any methodology specified by the Commission in the preparation of forecasts, forward plans, or other information:
f: by notice in writing, require any specified person who the Commission has reason to believe may have information or documents relevant to the investigation, audit, or inquiry, at the time and place specified in the notice, to do 1 or both of the following:
i: produce or supply to the Commission documents and information in relation to the fibre fixed line access services, or the prices or operations of the person in respect of the services:
ii: answer any questions about any matter that the Commission has reason to believe may be relevant to the investigation, audit, or inquiry:
g: by notice in writing, require any regulated fibre service provider, at the time and place specified in the notice, to produce or supply to the Commission an expert opinion from an appropriately qualified person, or from a member of a class of appropriately qualified persons, as determined by the Commission in relation to the matters in paragraph (b), (c), (e), or (f)﻿(i).
2: In this section, specified person
a: a regulated fibre service provider:
b: a person who used to be a regulated fibre service provider:
c: a retail service provider:
d: an agency associated with the supply of fibre fixed line access services. 1986 No 5 s 53ZD Section 221 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
222: Power to exempt disclosure of commercially sensitive information
1: The Commission may, on application, exempt any person, in respect of any information or class of information that the Commission considers to be commercially sensitive, from any obligation to make that information available to the public as part of the requirements of information disclosure regulation or price-quality regulation.
2: The Commission may grant the exemption on any terms and conditions that it thinks fit.
3:
4:
5: The Commission’s reasons for granting an exemption (including why it is appropriate) must be published together with the exemption.
6: The Commission must keep a list of all current exemptions made by it under this section and must make the list available—
a: for public inspection free of charge during normal office hours of the Commission at the offices of the Commission; and
b: on the Commission’s Internet site
7: The Commission may vary or revoke an exemption in the same way as it may grant the exemption, and this section applies with all necessary modifications.
8: The breach of a term or condition of an exemption is a breach of the obligation to which the exemption relates.
9: An exemption under this section, and any variation or revocation of it, is secondary legislation ( see Part 3 1986 No 5 s 53ZG The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	give public notice in accordance with section 6 •	comply with subsection (5) Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 222 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 222(3) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 222(4) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 222(6)﻿(b) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 222(9) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
223: Material may be incorporated by reference
Schedule 5
a: a section 170
b: an input methodology. 1986 No 5 s 53ZF Section 223 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
9: Appeals from Commission determinations
Subpart 9 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
224: Appeals in relation to Commission determinations
1: A regulated fibre service provider or any other person may appeal to the High Court under this subsection against any determination of the Commission under this Part, other than the following:
a: a section 170
b: an input methodology determination under subpart 3
2: An appeal against a section 170
3: A person may appeal to the High Court under this subsection on a question of law against any determination of the Commission under this Part (including a determination referred to in subsection (1)), except if the person has appealed, or is able to appeal, on the question of law against the determination under section 183
4: An appeal under this section must be made by giving notice of appeal within 20 working days after the date of the determination appealed against or within such further time as the court may allow.
5: Sections 77 93 to 97
6: To avoid doubt, a recommendation to the Minister by the Commission is not a determination for the purposes of this section. 1986 No 5 s 91 Section 224 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
10: Orders and regulations
Subpart 10 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018
225: Order for reset date
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, declare a date to be the reset date for the purpose of sections 195 196
2: The power to make an order made under this section may be exercised only once.
3: The Minister must not recommend that an order be made under this section unless the Commission has, after a review under section 209
4: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 225 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 225(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
226: Persons subject to regulation under Part 6
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations prescribing a person who provides fibre fixed line access services as being subject to 1 or both of the following:
a: information disclosure regulation:
b: price-quality regulation.
2: Regulations made under this section must—
a: state the name of the person; and
b: describe the services in respect of which the person is subject to information disclosure regulation, price-quality regulation, or both.
3: For the purposes of subsection (2)﻿(b), the regulations may, without limitation other than subsection (4)﻿(b), describe a service with reference to any 1 or more of the following:
a: the geographic area in which the service is supplied:
b: the service’s end-users:
c: the service providers who seek access to the service:
d: the technical specifications of the service:
e: any other circumstances in which the service is supplied.
4: The Minister must not recommend that regulations be made under this section unless—
a: the Commission has consulted with interested persons; and
b: the Commission has recommended to the Minister that the regulations be made.
5: Subsection (4) applies unless the Minister is recommending regulations to which either or both of the following apply:
a: the regulations have no more than a minor effect:
b: the regulations correct errors or make similar technical amendments.
6: The Minister must not recommend that regulations be made to prescribe a person as being subject to information disclosure regulation, price-quality regulation, or both unless the Commission has advised that it is satisfied that the person provides fibre fixed line access services in a market where the person can exercise a substantial degree of market power.
7: If, in accordance with regulations made under this section, a person is subject to information disclosure regulation or price-quality regulation (or both) in respect of 1 or more fibre fixed line access services, the regulations apply to any subsidiary of, or successor to, the person in respect of those services.
8: For the purposes of subsection (4)﻿(a), the Commission has consulted with interested persons section 210(5)
9: In this section, a reference to a person who provides fibre fixed line access services
10: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 226 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 226(10) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
227: Anchor services
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations declaring a fibre fixed line access service to be an anchor service.
2: The regulations may, in relation to the service, prescribe all or any of the following:
a: a description of the service; and
b: any conditions; and
c: the period during which a regulated fibre service provider who is subject to price-quality regulation must provide the service; and
d: the maximum price that a regulated fibre service provider who is subject to price-quality regulation may charge for providing the service.
3: For the purposes of subsection (2)﻿(a), the regulations may, without limitation other than subsection (4), describe a service with reference to any 1 or more of the following:
a: the geographic area in which the service must be supplied:
b: the service’s end-users:
c: the service providers who seek access to the service:
d: the technical specifications of the service:
e: any other circumstances in which the service must be supplied.
4: The Minister must not recommend that regulations be made under this section unless the Commission has, after a review under section 208
5: Subsection (4) applies unless the Minister is recommending regulations to which either or both of the following apply:
a: the regulations have no more than a minor effect:
b: the regulations correct errors or make similar technical amendments.
6: See clause 14
7: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 227 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 227(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
228: Direct fibre access services
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations declaring a fibre fixed line access service to be a direct fibre access service.
2: The regulations may, in relation to a direct fibre access service, prescribe all or any of the following:
a: a description of the service; and
b: any conditions; and
c: the period during which a regulated fibre service provider who is subject to price-quality regulation must provide the service; and
d: the maximum price that a regulated fibre service provider who is subject to price-quality regulation may charge for providing the service.
3: For the purposes of subsection (2)﻿(a), the regulations may, without limitation other than subsection (4), describe a service with reference to any 1 or more of the following:
a: the geographic area in which the service must be supplied:
b: the service’s end-users:
c: the service providers who seek access to the service:
d: the technical specifications of the service:
e: any other circumstances in which the service must be supplied.
4: The Minister must not recommend that regulations be made under this section unless the Commission has, after a review under section 209
5: Subsection (4) applies unless the Minister is recommending regulations to which 1 or more of the following apply:
a: the regulations have no more than a minor effect:
b: the regulations correct errors or make similar technical amendments:
c: the regulations are allowed under subsection (6).
6: If a review has not been carried out under section 209
7: See clause 15
8: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 228 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 228(8) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
229: Unbundled fibre services
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations declaring a point-to-multipoint layer 1 service supplied to end-users’ premises or buildings to be an unbundled fibre service.
2: The regulations may, in relation to an unbundled fibre service, prescribe all or any of the following:
a: a description of the service:
b: any conditions:
c: the period during which the service must be provided:
d: the maximum price that may be charged for the service, which must be a cost-based price.
3: For the purposes of subsection (2)﻿(a), the regulations may, without limitation other than subsection (4), describe a service with reference to any 1 or more of the following:
a: the geographic area in which the service must be supplied:
b: the service’s end-users:
c: the service providers who seek access to the service:
d: the technical specifications of the service:
e: any other circumstances in which the service must be supplied.
4: The Minister must not recommend that regulations be made under this section unless the Commission has, after a review under section 209
5: Subsection (4) applies unless the Minister is recommending regulations to which either or both of the following apply:
a: the regulations have no more than a minor effect:
b: the regulations correct errors or make similar technical amendments.
6: Despite subsection (1), the Minister must not recommend that a service be declared, before 1 January 2026, to be an unbundled fibre service if the service is provided over a fibre network developed as part of UFB 2 (as defined in section 156AB
7: See clause 16
8: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 229 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 229(8) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
230: Regulations under sections 228 and 229 may modify undertaking under section 156AD
1: This section applies if the Governor-General makes regulations under section 228 229
2: The Governor-General may, by Order in Council made on the recommendation of the Minister, make further regulations to discharge an LFC from its obligation to supply a service under an undertaking entered into in accordance with section 156AD
3: For the purposes of subsection (2)
a: the geographic area in which the service is supplied:
b: the service’s end-users:
c: the service providers who seek access to the service:
d: the technical specifications of the service:
e: any other circumstances in which the service is supplied.
4: In this section, LFC section 156AB
5: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 230 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 230(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
231: Specified points of interconnection
1: The Commission may, by public notice, prescribe points of interconnection for the purposes of establishing fibre handover points.
2: The notice may prescribe a point of interconnection by reference to 1 or more of the following:
a: a regulated fibre service provider’s network:
b: a geographical location:
c: the UFB initiative.
3: The Commission may amend or revoke a notice in the manner in which it was made.
4: However, the Commission must not amend a specified point of interconnection unless the amendment—
a: is for an appropriate technical purpose; and
b: is consistent with the purpose in section 162
5: The first notice made under this section—
a: must prescribe points of interconnection based on the points of interconnection that apply as at the close of 31 December 2019 under the UFB initiative; and
b: may prescribe additional points of interconnection.
6: Section 231 inserted 13 November 2018 section 24 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 231(6) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
7: Consumer matters
Part 7 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
232: Interpretation
In this Part, unless the context otherwise requires,— consumer industry dispute resolution scheme
a: means—
i: the Telecommunications Dispute Resolution scheme established by the Forum; and
ii: any other dispute resolution scheme that has been set up by the telecommunications industry and deals with consumer complaints; but
b: excludes a dispute resolution scheme as defined in clause 2 scheme member scheme provider Section 232 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018 Retail service quality codes Heading inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
233: Purpose of retail service quality code
The purpose of a retail service quality code is to improve retail service quality to reflect the demands of end-users of telecommunications services. Section 233 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
234: Commission may issue guidelines
The Commission may issue guidelines to the telecommunications industry on any matters relating to retail service quality codes, including advice on what matters are appropriately dealt with by retail service quality codes. Section 234 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
235: Commission review of industry retail service quality codes
1: The Commission may, at any time, review an industry retail service quality code.
2: The Commission may require the following persons to provide the Commission with any information relevant to the industry retail service quality code under review:
a: the Forum:
b: service providers to whom the code applies.
3: After each review, the Commission must—
a: advise the Forum, the dispute resolution provider for the code (if any), and the Minister of any recommendations for improving the code and of any recommendations for creating a new code; and
b: advise the Minister of whether any previous recommendations have been implemented; and
c: advise the Minister of whether, in the Commission’s opinion,—
i: the code fails to achieve the purpose set out in section 233
ii: a Commission RSQ code would better achieve the purpose set out in section 233 Section 235 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
236: Commission retail service quality code
1: The Commission may make a retail service quality code in relation to the provision of 1 or more types of telecommunications service only if—
a: no industry retail service quality code has been made in relation to the service; or
b: an industry retail service quality code has been made in relation to the service, but in the Commission’s opinion—
i: the code fails to achieve the purpose set out in section 233
ii: a Commission RSQ code would better achieve the purpose set out in section 233
2: If the Commission intends to make a Commission RSQ code, the Commission must, before making the code, provide a report to the Minister containing the reasons for making the code and the provision of this section that applies.
3: A Commission RSQ code, and any amendment to or revocation of the code, is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must give public notice in accordance with section 6 LA19 ss 73 74(1)﻿(a) cl 14 Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 236 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 236(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
237: Contents of Commission retail service quality code
1: A Commission RSQ code must—
a: specify which telecommunications services it applies to; and
b: specify which telecommunications service providers it applies to; and
c: promote the purpose set out in section 233
2: A Commission retail service quality code may—
a: impose binding obligations on telecommunications service providers that provide retail telecommunications services covered by the code; and
b: contain any other provisions that are necessary or desirable. Section 237 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018 Commission 111 contact code Heading inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
238: Commission 111 contact code
1: The Commission must make a code for the purpose of ensuring that vulnerable consumers, or persons on their behalf, have reasonable access to an appropriate means to contact the 111 emergency service in the event of a power failure.
2: The code must be made before the implementation date.
3: The code must—
a: specify which telecommunications services it applies to; and
b: require the providers of those services to inform consumers about the options available for vulnerable consumers; and
c: prescribe a process (or processes) for a consumer of those services, or a person on their behalf, to demonstrate that they—
i: are a vulnerable consumer; or
ii: will become a vulnerable consumer; and
d: require the providers of those services to supply vulnerable consumers, at no cost to the consumers, with an appropriate means for contacting the 111 emergency service that can be operated for the minimum period in the event of a power failure; and
e: specify the minimum period for the purposes of paragraph (d).
4: The code may do 1 or more of the following:
a: specify classes of people that must be considered vulnerable consumers:
b: specify appropriate means for vulnerable consumers, or persons on their behalf, to contact emergency services:
c: contain any other provisions that are necessary or desirable to achieve the purpose in subsection (1).
5: In this section,— minimum period specified telecommunications service vulnerable consumer
a: is at particular risk of requiring the 111 emergency service (for example, due to a known medical condition); and
b: does not have a means for contacting the 111 emergency service that can be operated for the minimum period in the event of a power failure.
6: A Commission 111 contact code, and any amendment to or revocation of the code, is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must give public notice in accordance with section 6 LA19 ss 73 74(1)﻿(a) cl 14 Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 238 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 238(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Process for making Commission codes Heading inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
239: Process for making or amending Commission code
1: In order to make a Commission code, the Commission must—
a: give public notice of the process that will be followed to make the code; and
b: consult with interested persons; and
c: give public notice of a draft code.
2: If the code is a Commission 111 contact code, interested persons
a: the New Zealand Police:
b: Fire and Emergency New Zealand:
c: the Director of Civil Defence Emergency Management:
d: every provider of an initial call answering point for the 111 emergency service.
3: A person is entitled to make submissions to the Commission not later than 30 working days after the date on which public notice of the draft code is given.
4: The Commission may make the code only if the Commission is satisfied that the draft code meets all the requirements set out in this Part.
5: The Commission may amend or revoke a code if the Commission considers that the code no longer meets all the requirements set out in this Part.
6: The same procedure that applies to making a code in subsections (1) to (4) must be followed to make an amendment or a revocation, with any necessary modifications.
7: Section 239 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 239(7) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Dispute resolution schemes Heading inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
240: Dispute resolution scheme
1: The dispute resolution scheme for all Commission codes is—
a: an industry dispute resolution scheme; or
b: if Part 4B comes into force in accordance with section 156S
i: that is appointed under that Part; and
ii: that the Minister declares under this section to be the dispute resolution scheme for Commission codes.
2: A scheme provider for an industry dispute resolution scheme must, on request by the Minister or the Commission, provide information on matters relating to any information or reports relevant to the administration of a Commission code.
3: Sections 241 to 245 Section 240 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
241: Disputes may be referred to industry dispute resolution scheme
1: A dispute between a consumer and a telecommunications service provider about their rights and obligations under a Commission code may be referred to an industry dispute resolution scheme by any of the parties to the dispute.
2: Disputes that may, depending on the relevant Commission code, be referred to an industry dispute resolution scheme include disputes about the following:
a: installation times:
b: how consumer complaints are handled:
c: other matters provided for in the code or by the industry dispute resolution scheme. 2001 No 103 s 155ZI Section 241 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
242: Determinations binding on scheme members and certain other parties
1: This section applies if a dispute is referred to an industry dispute resolution scheme and a determination is made on the dispute under the rules of the scheme.
2: The determination is binding on each party to the dispute who is a scheme member (except to the extent that it may be modified by the District Court under section 245(3)
3: The determination is binding on each party to the dispute who is not a scheme member, except if one of those parties lodges an appeal against the determination under section 243 2001 No 103 s 155ZJ Section 242 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
243: Appeals against determinations
1: A consumer or any other party to the dispute who is not a scheme member may, within the time allowed under section 244(1)
2: The court may confirm, modify, or reverse the determination appealed against.
3: The decision of the court on the appeal is binding on all persons named as parties in the determination, and there is no right of appeal against the court’s decision. 2001 No 103 s 155ZK Section 243 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
244: Procedure on appeal
1: An appeal under section 243
a: an appeal must be brought within 5 working days after the determination appealed against is notified to the party wanting to lodge the appeal, or any further time the court allows on an application made before or after that period ends; and
b: the industry dispute resolution scheme, as the maker of the determination appealed against, is not entitled to be represented at the hearing of the appeal; and
c: the court on appeal may not refer the determination back to the industry dispute resolution scheme for any purpose.
2: The court may hear all evidence provided and representations made by or on behalf of any party to the appeal that the court considers relevant to the appeal, whether or not the evidence would otherwise be admissible in a court. 2001 No 103 s 155ZL Section 244 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
245: Compliance with rules, binding settlements, and determinations
1: Members of an industry dispute resolution scheme and each party to a dispute that is referred to the scheme must comply with the rules of the scheme.
2: On an application of the scheme provider for an industry dispute resolution scheme, the District Court may require a scheme member or other person who is a party to a dispute to do any of the following:
a: comply with the rules of the scheme:
b: comply with the terms of a binding settlement or determination made under the rules of the scheme.
3: If the District Court is satisfied that the terms of a binding settlement or determination are manifestly unreasonable, the court’s order under subsection (2)﻿(b) may modify the terms of the binding settlement or determination, but only to the extent that the modification results in a binding settlement or determination that could have been made under the industry dispute resolution scheme.
4: If an order requiring a scheme 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 the District Court for the payment of a sum of money.
5: A reference in this section to a scheme member includes a reference to a person who was a member of the industry dispute resolution scheme at the relevant time but is no longer a member at the time of the application or order. 2001 No 103 s 155ZM Section 245 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018 Commission review of industry dispute resolution schemes Heading inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
246: Commission review of industry dispute resolution schemes
1: The Commission must review each industry dispute resolution scheme at least once every 3 years.
2: As part of a review of a scheme, the Commission may, without limitation, consider the following:
a: the purpose of the scheme:
b: the scheme provider:
c: the dispute resolution provider for the scheme:
d: the effectiveness of the scheme in resolving complaints by consumers against service providers:
e: the adequacy of the scheme rules:
f: whether the scheme rules comply with the following principles:
i: accessibility:
ii: independence:
iii: fairness:
iv: accountability:
v: efficiency:
vi: effectiveness:
g: whether any recommendations for improving the scheme made under subsection (4) have been implemented:
h: the purpose of the dispute resolution provider for the scheme:
i: the procedures that are used for receiving, investigating, and resolving complaints:
j: how promptly complaints are dealt with.
3: The Commission may require the following persons to provide the Commission with any information relevant to the matters included in subsection (2):
a: the dispute resolution provider for the scheme:
b: the scheme provider:
c: a scheme member.
4: After each review, the Commission must provide a report to the scheme provider on any recommendations for improving the scheme and when the recommendations should be implemented.
5: If the Commission considers that any recommendations made under subsection (4) have not been implemented satisfactorily, the Commission must provide a report to the Minister on—
a: the recommendations for improving the scheme made under subsection (4); and
b: whether those recommendations have been implemented; and
c: whether, in the Commission’s opinion,—
i: the scheme fails to achieve the purpose set out in section 247
ii: the dispute resolution provider for the scheme fails to achieve the purpose set out in section 248
6: If the Commission proposes to report, under subsection (5)﻿(c), that a scheme fails to achieve the purpose set out in section 247 section 248
a: the dispute resolution provider for the scheme:
b: the scheme provider:
c: a scheme member. Section 246 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
247: Purpose of dispute resolution scheme
The purpose of a dispute resolution scheme is to ensure that, if a consumer has a dispute with a service provider in relation to a Commission code or an industry retail service quality code, the consumer has access to a dispute resolution scheme for resolving that dispute in accordance with the principles set out in section 246(2)﻿(f) Section 247 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
248: Purpose of dispute resolution provider
The purpose of a dispute resolution provider, in relation to a dispute resolution scheme for a Commission code or an industry retail service quality code, is—
a: to operate the scheme; and
b: to administer the relevant code; and
c: to manage consumer complaints relating to the code; and
d: to investigate disputes relating to the code; and
e: to promote awareness of the scheme and the code; and
f: to monitor compliance with the scheme and the code; and
g: to enforce the provisions of the scheme and the code. Section 248 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018
249: Interrelationship of remedies
1: Nothing in this Part limits or affects any right, duty, liability, or remedy that exists or is available apart from this Part.
2: Any right of action or other remedy available under, or in connection with, this Part 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, 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. 2001 No 103 s 156AS Section 249 inserted 13 November 2018 section 36 Telecommunications (New Regulatory Framework) Amendment Act 2018