Document ID: chunk:federal_register_of_legislation:C2004A04938:body:0:p30
Version: federal_register_of_legislation:C2004A04938
Segment Type: other
Provision Reference: 
Character Range: 79341–82167

its determination.

"(2) Despite subparagraph (1)(a)(ii), if the provider notified a dispute over variation of a determination, the third party may not withdraw the provider's notification.

"(3) If the notification is withdrawn, it is taken for the purposes of this Part never to have been given.

"Subdivision C—Arbitration of access disputes

Parties to the arbitration

"44U. The parties to the arbitration of an access dispute are:

    (a) the provider;

    (b) the third party;

    (c) any other person who applies in writing to be made a party and is accepted by the Commission as having a sufficient interest.

Determination by Commission

"44V.(1) Unless it terminates the arbitration under section 44Y, the Commission must make a written determination on access by the third party to the service.

"(2) The determination may deal with any matter relating to access by the third party to the service, including matters that were not the basis for notification of the dispute. By way of example, the determination may:

    (a) require the provider to provide access to the service by the third party;

    (b) require the third party to accept, and pay for, access to the service;

    (c) specify the terms and conditions of the third party's access to the service;

    (d) require the provider to extend the facility;

    (e) specify the extent to which the determination overrides an earlier determination relating to access to the service by the third party.

"(3) The determination does not have to require the provider to provide access to the service by the third party.

"(4) Before making a determination, the Commission must give a draft determination to the parties.

"(5) When the Commission makes a determination, it must give the parties to the arbitration its reasons for making the determination.

Restrictions on access determinations

"44W.(1) The Commission must not make a determination that would have any of the following effects:

    (a) preventing an existing user obtaining a sufficient amount of the service to be able to meet the user's reasonably anticipated requirements, measured at the time when the dispute was notified;

    (b) preventing a person from obtaining, by the exercise of a pre-notification right, a sufficient amount of the service to be able to meet the person's actual requirements;

    (c) depriving any person of a protected contractual right;

    (d) resulting in the third party becoming the owner (or one of the owners) of any part of the facility, or of extensions of the facility, without the consent of the provider;

    (e) requiring the provider to bear some or all of the costs of extending the facility or maintaining extensions of the facility.

"(2) Paragraphs (1)(a) and (b) do not apply in relation to the requirements and rights of the third