Telecom NZ taken to court for, allegedly, breaching separation rules

Stuart Corner
Friday, 06 November 2009 11:23

IT Policy - Government Tech Policy

With the matter now before the courts, the Commission will make no further comment. However it says: "As part of its investigation into this matter, the Commission consulted on the meaning of 'discrimination' in clause 56 the Undertakings. In light of submissions, the Commission intends to provide Telecom and the industry further guidance on Telecom's obligation not to discriminate."

Extracts from the undertaking rules, quoted in the Commission's press release, appear to give very little guidance on the meaning of 'discrimination' in this context. The rules state only that "When doing or omitting to do anything in respect of the provision of a relevant wholesale service, the Wholesale Unit...will not discriminate between service providers and retail units or between service providers."

This is then qualified with the statement that this rule "does not prevent the Wholesale Unit from doing or omitting to do something in respect of the provision of a relevant wholesale service that is different for different recipients of that service where those differences reflect the different requirements of the recipients."

Gilbertson claimed that the Commission had failed to provide any guidance whatsoever. "It is extremely disappointing that the Commission has elected to use the High Court as its method for clarifying this issue, rather than working constructively with Telecom and the industry as a whole. It is equally disappointing that the Commission could have avoided the very prosecution it has now brought, by providing effective upfront guidance when Telecom sought it."

Gilbertson noted that BT, in the delivery of its separation undertakings, had 14 non-trivial breaches over three years but that, in the UK, "The regulator...worked constructively with BT, rather than take a litigation and prosecution approach."