1: Title
This Act is the Telecommunications Amendment Act (No 2) 2006.
2: Commencement
1: Part 4B of the Telecommunications Act 2001 (as inserted by section 54
2: The rest of this Act comes into force on 22 December 2006.
3: Principal Act amended
This Act amends the Telecommunications Act 2001 OIC Telecommunications Act 2001
1: Amendments to principal Act
4: Overview
1: Section 4(c)(ii) prepared by the Commission on its own initiative or ( Schedule 2
2: Section 4(e) Schedule 3 Schedules 3 and 3A
3: Section 4 paragraph (e)
ea: provisions requiring the operational separation of Telecom are set out in Part 2A
eb: provisions about the preparation and disclosure of information are set out in Part 2B
4: Section 4 paragraph (g)
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
5: Interpretation
1: Section 5 access provider access provider
a: means, in relation to a designated service or specified service, the person named or described in Part 2, or Part 3, of Schedule 1
b: means, in relation to a service that is supplied under a registered undertaking, the person that provided the undertaking under Schedule 3A
2: Section 5 access seeker access seeker
a: means, in relation to a designated service or specified service, the person named or described in Part 2, or Part 3, of Schedule 1
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
3: Section 5 financial year financial year
4: The definition of liable person section 5 TSP TSO provider
5: Section 5 liable person's TSO-qualified revenue
a: telecommunications services by means of its PSTN:
b: telecommunications services by means that rely primarily on the existence of its PSTN or any other PSTN:
c: directory services in respect of PSTN numbers
6: The definition of local loop network section 5
7: Section 5 party parties party or parties means
a: for a determination made under section 27 section 30ZB
b: for a standard terms determination made under section 30M section 39 Schedule 2
c: for a registered undertaking under Schedule 3A
8: Section 5 registered undertaking clause 1 of Schedule 3A
9: The definition of specified amount section 5 section 70(5) section 71A
10: Section 5 TSO cost allocation determination sections 87 to 91 TSO cost calculation determination sections 92 to 93E
11: Section 5 TSP telecommunications service provider TSO provider or telecommunications service obligation provider TSO provider's TSO-qualified revenue
a: telecommunications services by means of its PSTN:
b: telecommunications services by means that rely primarily on the existence of its PSTN or any other PSTN:
c: directory services in respect of PSTN numbers
6: Telecommunications access codes
Section 7 subsection (1)
1: In this Act, telecommunications access code
a: designated services or specified services:
b: services supplied under a registered undertaking.
7: New section 9A inserted
The following section is inserted after section 9
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 make available reports, summaries, and information about the things referred to in paragraphs (a) and (b)
2: The function in subsection (1)(c) 1986 No 5 s 25 1986 No 121 s 6
8: Commission and Minister must consider purpose set out in section 18 and additional matters
1: Section 19 Schedules 1 to 3 Schedules 1, 3, and 3A
2: Section 19(c) Commissioner Commission
9: New section 19A inserted
The following section is inserted after section 19
19A: Commission to have regard to economic policies of Government
1: In the exercise of its powers under 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 of the Crown Entities Act 2004
10: When application may not be made
1: Section 22(a) (b)
2: Section 22 paragraph (c)
ca: the standard terms development process for the service is proceeding or a standard terms determination for the service is in force; or
3: Section 22
2: However, subsection (1)(ca) section 30V
3: The Commission may investigate whether subsection (1)(d)
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.
11: New section 22A inserted
The following section is inserted after section 22
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)
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.
12: Matters to be included in determination
Section 30
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.
13: New subpart 2A inserted
The following subpart is inserted after section 30
2A: Standard terms determinations for designated access services and specified services
Preliminary
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: provides a mechanism that allows parties to a standard terms determination to apply for a residual terms determination if they wish to adjust, as between themselves, the application of terms specified in the standard terms determination ( sections 30U to 30ZD
3: This section is intended only as a guide to the general scheme and effect of this subpart.
30B: Interpretation
In this subpart,— change in circumstances regulated terms Standard terms development process
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)
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
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 tells 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. Standard terms proposal
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)
3: An access provider of the designated access service or specified service to whom written notice is given under subsection (1)(a)
4: The written notice under subsection (1)(a)
a: section 30G
b: any additional requirements that the Commission specifies under subsection (2)
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)
b: provide an explanation of, and reasons for, those terms; and
c: state the time frames within which the access provider must make the service available to—
i: every person who is already an access seeker when the standard terms determination is made; and
ii: every person who becomes an access seeker after the standard terms determination is made; and
d: be consistent with the description of the service in Part 2 or Part 3 of Schedule 1
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.
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)
a: section 30G
b: any additional requirements that the Commission specifies under section 30F(2)
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.
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. Draft standard terms determination
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) 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)
c: if neither paragraph (a) paragraph (b)
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 Standard terms determination
30M: Standard terms determination
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; and
c: give public notice of the standard terms determination.
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) subsection (1)(a)
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)
b: state the time frames within which the access provider must make the service available to—
i: every person who is already an access seeker when the standard terms determination is made; and
ii: every person who becomes an access seeker after the standard terms determination is made; and
c: specify the reasons for the standard terms determination; and
d: specify the terms and conditions (if any) on which the standard terms determination is made; and
e: specify the actions (if any) that a party to the standard terms determination must take or refrain from taking.
2: To avoid doubt, a standard terms determination may also include, without limitation, terms concerning any or all of the following matters:
a: dispute resolution procedures:
b: the consequences of a breach of the determination (including provision for set-off or withholding rights, or liquidated damages):
c: suspension and termination of the service:
d: procedures for, or restrictions on, assignment of the service.
3: The Commission must identify which of the terms (if any) specified in a standard terms determination are allowed to be varied, on an application made under section 30V
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) 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)
c: if neither paragraph (a) paragraph (b)
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.
30Q: Standard terms determination not to include expiry date
A standard terms determination must not include an expiry date for the determination.
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)
a: the initial standard terms determination:
b: any relevant residual terms determination.
4: The Commission may conduct a review in the manner, and within the time, that it thinks fit.
5: The Commission must—
a: consult all parties to the determination on the review; and
b: give public notice of the commencement of the review; and
c: include in the public notice under paragraph (b)
d: give public notice of the result of the review. Application of standard terms determination
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)
a: after the date on which the standard terms determination for the service was made, the access seeker and the access provider entered into an agreement for the supply of the service; and
b: it is less than 18 months since the date on which that agreement came into force.
3: In complying with a request from an access seeker under subsection (1) section 30ZB
4: However, if there is any inconsistency between the terms specified in a residual terms determination in relation to that access seeker and that access provider and the terms specified in a standard terms determination, the terms specified in the residual terms determination prevail.
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 Residual terms determination
30U: Purpose of residual terms determination
1: The purpose of a residual terms determination is to allow the Commission, on the application of a party to a standard terms determination, to adjust the terms for the supply of a designated access service or specified service that are specified in the standard terms determination.
2: To that end, a residual terms determination may—
a: address matters that were not addressed in the standard terms determination; and
b: vary any terms in the standard terms determination that the Commission has identified under section 30O(3)
30V: Application for residual terms determination
1: An access seeker of a designated access service or specified service who is a party to a standard terms determination may apply to the Commission for a residual terms determination of any terms on which the service must be supplied.
2: If an access seeker applies for a residual terms determination under subsection (1)
3: To avoid doubt, an application under this section—
a: may only be made if the Commission has made a standard terms determination for the service; and
b: may seek either or both of the following:
i: a determination of matters that were not addressed in the standard terms determination:
ii: a variation of any terms in the standard terms determination that the Commission has identified under section 30O(3)
30W: When application may not be made
1: Despite section 30V
a: all of the following apply:
i: the persons who would otherwise be parties to the determination have an agreement for the supply of the service; and
ii: that agreement was entered into after the date on which the relevant standard terms determination was made; and
iii: it is less than 18 months since the date on which that agreement came into force; or
b: that person has not made reasonable attempts to negotiate the terms that are sought in the application for the residual terms determination with the person who would otherwise be a party to that determination; or
c: that person has previously applied for a residual terms determination for the service and it is less than 18 months since the date on which that determination was made; or
d: it is less than 18 months since the date on which the access provider began to supply the service on the terms specified in the standard terms determination in accordance with a request made by the access seeker under section 30S(1)
e: the applicable conditions in relation to the service (if any) have not been met.
2: However, subsection (1)(d) section 30S(1)
30X: Requirements for application
An application made under section 30V
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.
30Y: Commission must notify parties
On receiving an application made in accordance with section 30X
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.
30Z: 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 residual terms determination to make submissions on the matter by written notice to the Commission not later than 10 working days after receipt of the notice of decision from the Commission.
2: Subsection (1)(d) subsection (1)(a)
30ZA: Consultation or conferences
If the Commission considers that persons other than the parties to the determination have a material interest in the residual terms determination, the Commission may either consult those persons or hold conferences in relation to the matter.
30ZB: Preparation of residual terms determination
After investigating the matter, the Commission must—
a: prepare a residual terms determination; and
b: give a copy of the determination to the parties to the determination; and
c: give public notice of the determination.
30ZC: Requirements for residual terms determination
A residual terms determination must, in the opinion of the Commission,—
a: be made in accordance with—
i: the applicable access principles and any limits on those applicable access principles; and
ii: any regulations made in respect of the applicable access principles and any limits on those applicable access principles; and
b: comply with any relevant approved codes.
30ZD: Matters to be included in residual terms determination
A residual terms determination must include—
a: the terms on which the service must be supplied; and
b: the reasons for the determination; and
c: the terms and conditions (if any) on which the determination is made; and
d: the actions (if any) that a party to the determination must take or refrain from taking; and
e: the expiry date of the determination.
14: New heading and section 31AA inserted
The following heading and section are inserted after the subpart 3 Commission may initiate process for designated multinetwork service determination on own initiative
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.
15: New section 34 substituted
Section 34
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.
16: Commission must decide whether to investigate
Section 35 application matter
17: Application
1: Section 42 or section 30M section 27
2: Section 42 subsection (1)
1A: However, subsection (1) section 30M section 30P(1)(a)
18: Requirements for application
Section 43 paragraph (b)
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 section 30M(c)
19: Commission's requirements on receiving application
Section 44(b) party to the determination party or parties to the determination (as the case requires)
20: Access provider to calculate price on request
1: Section 45(1) the access provider an access provider
2: Section 45(2) the access provider an access provider
3: Section 45(2)(a) subparagraph (ii)
ii: any regulations that relate to the applicable final pricing principle or, if there are no regulations, any requirements of the Commission.
21: Section 46 repealed
Section 46
22: Matters to be included in draft determination
Section 49(a) subparagraph (ii)
ii: any regulations that relate to the applicable final pricing principle or, if there are no regulations, any requirements of the Commission; and
23: Matters to be included in determination
Section 52(a) subparagraph (ii)
ii: any regulations that relate to the applicable final pricing principle or, if there are no regulations, any requirements of the Commission; and
24: Applicant may withdraw
Section 54(1) a standard terms determination or except
25: Commission's costs
Section 55
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)
b: by way of a levy under section 11
c: by a combination of the ways referred to in paragraphs (a) and (b)
26: Clarification of determination
Section 58(1)(b)
27: Reconsideration of determination
Section 59(1)(b)
28: Section 61 repealed
Section 61
29: New section 62 substituted
Section 62
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)
30: Sections 64 and 65 repealed
Sections 64 65
31: New sections 68 and 68A substituted
Section 68
68: Minister's recommendation subject to procedure in Schedule 3
1: The Minister must not make a recommendation under section 66 or 67
2: The Commission's recommendation must be made in accordance with the procedure set out in—
a: Part 2 of Schedule 3 Part 3 of Schedule 1 Part 2 of that schedule
b: Part 1 of Schedule 3
3: This section does not prevent the Minister from making a recommendation under section 66 or 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).
68A: Application of Schedule 3A
1: Schedule 3A Schedule 3
2: However, Schedule 3A Schedule 3
32: New Parts 2A and 2B inserted
The following Parts are inserted after Part 2
2A: Operational separation of Telecom
Preliminary provisions
69A: Purposes
The purposes of this Part are—
a: to promote competition in telecommunications markets for the long-term benefit of end-users of telecommunications services in New Zealand; and
b: to require transparency, non-discrimination, and equivalence of supply in relation to certain telecommunications services; and
c: to facilitate efficient investment in telecommunications infrastructure and services.
69B: Overview
1: The main features of this Part are that it—
a: provides for a robust operational separation of Telecom to achieve the purposes of this Part; and
b: sets the process for the Minister and Telecom to settle a separation plan following public comments.
2: This section is intended only as a guide to the general scheme and effect of this Part.
69C: Interpretation
In this Part, unless the context otherwise requires,— Minister's determination section 69F Ministry operational separation
a: includes the way in which business units are managed or structured, and the type of relationships, dealings, and transactions the units have:
b: does not include a requirement that any business unit must be operated by different owners:
c: may include business units being operated in different companies but only if Telecom wishes publish relevant services separation plan separation undertaking Requirements for separation plan
69D: Main requirements for separation plan
1: The separation plan must require a robust operational separation of Telecom, including undertakings to achieve the following in respect of relevant services:
a: Telecom must establish and maintain the following business units:
i: a fixed network access service business unit (which may provide a wholesale function for those services); and
ii: 1 or more business units which must provide a wholesale function for all relevant services (except to the extent that a wholesale function is provided in accordance with subparagraph (i)
iii: 1 or more business units that provide 1 or more other functions (for example, retail); and
b: Telecom must operate its fixed network access service business unit on a stand alone basis, at arms length from any other Telecom business unit; and
c: Telecom must operate its wholesale business unit or units at arms length from any business unit that provides retail functions; and
d: Telecom must operate any business unit that provides retail functions at arms length from any of Telecom's fixed network business units (whether access service units or other fixed network units); and
e: Telecom must ensure that all Telecom business units are operated in a way that does not undermine the requirements in paragraphs (b) to (d)
f: Telecom must ensure transparency and equivalence in relation to the supply by Telecom of relevant services; and
g: Telecom must be responsive in meeting its wholesale customers' needs in relation to relevant services; and
h: Telecom must have systems, procedures, and processes that require—
i: compliance with the separation plan; and
ii: monitoring of, and reporting on, compliance with the separation plan by an independent oversight group that has a majority of members that are independent of Telecom; and
iii: the development of performance measures relating to compliance with the separation plan; and
iv: audit, and other checks, of compliance with the separation plan.
2: The separation plan must specify a separation day or a method of determining the separation day.
3: Each separation plan given to the Minister by Telecom under any provision of this Part must be accompanied by a certificate signed by at least 2 directors of Telecom certifying that the directors are satisfied that the plan complies with this Part and any Minister's determination.
4: This Part does not require separation undertakings to be given in respect of services other than relevant services.
69E: Meaning of equivalence
Section 69D(1)(f)
69F: Minister must determine further requirements for separation plan
1: The Minister must determine further requirements with which the separation plan must comply.
2: These further requirements may include—
a: the objectives and outcomes that the separation undertakings are required to give effect to; and
b: the telecommunications services, or types of telecommunications services, to which equivalence and the other requirements in section 69D
c: the matters that must be addressed in the separation undertakings, and the minimum requirements for those undertakings.
3: In specifying the relevant services under subsection (2)(b)
a: provide a general description of the type or class of service, for example, all broadband services:
b: provide a general description of the parts of the Telecom network that are used to deliver the service, for example, the fixed PSTN:
c: specify that all or any services that may from time to time be listed in Schedule 1
d: specify that all or any services that may from time to time be subject to a registered undertaking in accordance with Schedule 3A
e: provide a mechanism for including new services that are similar to, or replacements for, any relevant services:
f: specify that certain services, or types of services, are not relevant services.
4: The Minister may amend the determination made under this section, or make a further determination under this section, at any time.
69G: How Ministerial determination of further requirements may be made
1: The Minister must make a determination under section 69F
2: The Minister must, by notice in the Gazette
a: a brief description of the nature of the determination; and
b: where copies of the determination are available for inspection and purchase.
3: The notice in the Gazette
4: The Minister must make the determination available to the public by making copies of it available—
a: for inspection, free of charge,—
i: at the head office of the Ministry (during ordinary office hours); and
ii: on an Internet website in an electronic form that is publicly accessible (at all reasonable times); and
b: for purchase at a reasonable price.
5: A determination is deemed to be a regulation for the purpose of the Regulations (Disallowance) Act 1989 Acts and Regulations Publication Act 1989
6: The Minister must present a copy of the determination to the House of Representatives in accordance with section 4 of the Regulations Disallowance) Act 1989 Process for settling separation plan
69H: Preparation of draft separation plan
1: Telecom must prepare a draft separation plan, in consultation with the Minister, that complies with this Part and any Minister's determination.
2: Telecom must give the draft separation plan to the Minister not later than 20 working days after the Minister first makes a determination under section 69F
69I: Minister must invite public comments on draft separation plan
1: The Minister must publish a notice, as soon as practicable after receiving the draft separation plan,—
a: stating that a draft separation plan has been prepared; and
b: stating that a copy of the draft is available on Telecom's Internet website and the Ministry's Internet website throughout the period of 20 working days after the publishing of the notice; and
c: inviting persons to give written comments about the draft plan to the Minister by a specified date, which must be 20 working days after the publishing of the notice.
2: Telecom and the Ministry must publish the draft plan in accordance with the notice.
69J: Amendment of separation plan after public comments
1: The Minister must, as soon as practicable after the date specified in section 69I(1)(c)
2: Telecom must, in consultation with the Minister, prepare an amended separation plan.
3: Telecom must, not later than 15 working days after the date specified in section 69I(1)(c)
a: an amended separation plan; and
b: a summary of how (if at all) the draft separation plan was amended as a result of the public comments.
69K: Minister may approve, or decline to approve, separation plan
1: The Minister must, as soon as practicable after receiving the amended separation plan under section 69J(3)
a: approve the separation plan; or
b: decline to approve the separation plan.
2: If the Minister declines to approve the separation plan,—
a: the Minister must indicate the parts of the separation plan that require amendment; and
b: the Minister must direct Telecom to prepare and submit a further amended separation plan; and
c: Telecom must, in consultation with the Minister, prepare a further amended separation plan and give it to the Minister not later than 15 working days after the date on which approval was declined (or a later date that the Minister may allow). 2001 No 51 ss 55, 56 2003 No 40 ss 31, 32
69L: Minister may amend separation plan to give better effect to this Part
1: As soon as practicable after receiving an amended separation plan under section 69K(2)(c)
a: approve the plan; or
b: make any amendments to the plan that the Minister considers would be desirable to give better effect to the purposes of this Part or any requirements under this Part, and approve the plan (as amended).
2: Before making amendments to a separation plan, the Minister must advise Telecom of the Minister's intention to do so and must give Telecom a reasonable opportunity to make submissions on the matter.
3: The Minister must give notice in writing to Telecom of the approval of the plan, accompanied by a copy of the plan as approved. 2001 No 51 s 57 2003 No 40 s 33
69M: Failure to submit separation plan
1: The Minister must arrange for a separation plan to be prepared, and the Minister has all the powers necessary for that purpose, if Telecom does not give to the Minister—
a: a draft separation plan within the time specified in section 69H(2)
b: an amended separation plan within the time specified in section 69J(3) or 69K(2)(c)
2: This Part applies to a separation plan prepared under subsection (1)
3: The Minister and the Ministry are entitled to be reimbursed by Telecom for the costs and expenses that they incur in taking action under subsection (1) 2001 No 51 s 58 2003 No 40 s 34 Implementation of separation plan
69N: Implementation of separation plan
On and from the separation day identified in the separation plan approved by the Minister under any provision of this Part, the separation undertakings identified in that plan take effect as, or as if they were, a deed that is—
a: properly executed by, and binding on, Telecom; and
b: given in favour of the Crown.
69O: Telecom must publish separation plan
As soon as practicable after the Minister approves the separation plan, Telecom must publish the plan.
69P: Employees
1: This section has effect only to the extent that—
a: an employee is transferred within Telecom to a new business unit under the implementation of the separation plan; and
b: the separation plan applies this section to the employee (whether by reference to a class of employees or otherwise).
2: For the avoidance of doubt,—
a: the implementation of the separation plan under this Part does not affect any employment agreement between Telecom and an employee of Telecom; and
b: the employee of Telecom continues to be an employee of Telecom and, for the purposes of every enactment, law, award, determination, contract, and agreement relating to the employment of the employee, his or her employment agreement is unbroken and the period of his or her service with Telecom and every other period of service that is recognised by Telecom as his or her continuous service, continues to be recognised; and
c: the terms and conditions of the employment of the employee with Telecom are (until varied) identical to the terms and conditions of his or her employment before the implementation of the separation plan and are capable of variation in the same manner; and
d: the employee is not entitled to receive any payment or other benefit by reason only of the implementation of the separation plan. 2001 No 51 s 61 Statutory provisions for enforcement of separation plan
69Q: Enforcement and remedies under Part 4A
Sections 156L, 156M, and sections 156O to 156R Part 4A
69R: Power of Court to grant relief in respect of separation undertakings
1: If, on the application of the Commission, it appears to the High Court that Telecom intends to engage, or is engaging, or has engaged, in conduct that constitutes, or would constitute, a breach of the terms of a separation undertaking, the Court may make any orders on any terms and conditions that it thinks appropriate, including, without limitation,—
a: an order to—
i: restrain Telecom from engaging in conduct that constitutes, or would constitute, the breach:
ii: require Telecom to do a particular act or thing:
iii: require Telecom to comply with the terms of the separation undertaking:
b: an interim order.
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.
69S: Interrelationship of remedies
1: Nothing in this Part or Part 4A 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 a separation 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. Variation of separation plan
69T: Variation of separation plan
Sections 69U to 69X
69U: Variation by agreement
1: Telecom and the Minister may agree to a variation to the separation plan, and implement the varied separation plan.
2: Sections 69N to 69S
69V: Variation by Minister
If the Minister proposes a variation to the separation plan with which Telecom does not agree,—
a: the Minister may amend any determination made under section 69F
b: Telecom must prepare a variation to the separation plan within the time that the Minister requires; and
c: sections 69H to 69S
69W: Variation by Telecom
If Telecom proposes a variation to the separation plan with which the Minister does not agree,—
a: the separation plan cannot be so varied; and
b: the Minister must give notice in writing to Telecom of the reasons for the Minister's refusal to agree.
69X: Commission may request variation
1: The Commission may request the Minister to propose a variation to the separation plan.
2: The request may be made at any time and for any reason.
3: Sections 69U and 69V
2B: Information disclosure requirements
69Y: Purpose
The purpose of this Part is to promote competition in telecommunications markets for the long-term benefit of end-users of telecommunications services in New Zealand by requiring that reliable and timely information prescribed by the Commission is made publicly available—
a: by Telecom, so that a wide range of people are informed about the operation and behaviour of Telecom's network, wholesale, and retail business activities and services; and
b: by access providers, including Telecom, so that a wide range of people are informed about the operation and behaviour of prescribed businesses that provide prescribed services, in order to monitor and facilitate compliance with prescribed applicable access principles. 1986 No 5 s 57T(1)
69Z: Parameters of Part
The Commission's requirements under this Part must be reasonable, having regard to the purpose of this Part, the confidentiality of the information in question, and the time required to prepare the information.
69ZA: Interpretation
In this Part, unless the context otherwise requires,— disclose information and disclosed information prescribed 1986 No 5 s 57T(6)
69ZB: Accounting separation of Telecom
1: The Commission must require Telecom to prepare and disclose information about the operation and behaviour of all or any of its network, wholesale, or retail business activities as if those activities were operated as independent or unrelated companies.
2: The Commission may require Telecom to prepare and disclose separate information about all or part of separate prescribed business activities or separate prescribed services, within the network, wholesale, or retail categories.
3: Any requirements under this section must be finalised only after a separation plan has been approved under Part 2A
4: The Commission may require Telecom to prepare and disclose information consisting of, or about, the following things, as part of the information required under this section:
a: financial statements:
b: asset valuations and valuation reports:
c: prices, terms, and conditions:
d: costs and costs allocation methodologies:
e: contracts:
f: transactions with related parties (as if the test for related parties were the same as the test in section 79
g: financial and non-financial performance measures:
h: plans and forecasts:
i: transfer payments (whether actual or notional) amongst prescribed business activities:
j: network capacity information:
k: policies and methodologies in these or other areas.
5: The Commission may, as part of the information required under this section,—
a: define the prescribed business activities and prescribed services in respect of which Telecom must prepare and disclose information:
b: require Telecom to adopt, in the preparation or compilation of that information, any methodology that is required by the Commission (including the allocation methodology that must be used for preparing the financial statements and allocating the costs, revenues, assets, and liabilities amongst the prescribed business activities and prescribed services):
c: require Telecom to disclose the manner in which methodologies have been applied:
d: prescribe the information that must be included in the financial statements to be prepared and disclosed.
6: Before making any requirements under this section, the Commission must hold conferences or consult with persons that the Commission considers have a material interest.
7: Telecom must prepare and disclose the information required under this section in accordance with the Commission's requirements.
8: Subsections (2), (4), and (5) subsection (1) 1986 No 5 s 57T(2), (3)
69ZC: Information disclosure by all access providers
1: This section applies—
a: to any access provider in relation to any part of its business that provides prescribed designated or specified services; and
b: for the purpose of enabling monitoring of, and facilitating compliance with, prescribed applicable access principles—
i: that are incorporated in any determination, approved code, or registered undertaking; and
ii: with which the access provider is required to comply.
2: The Commission—
a: may require the access provider to prepare and disclose information about the operation and behaviour of that part of its business; and
b: may require the access provider to adopt, in the preparation or compilation of that information, any methodology that is required by the Commission.
3: The Commission may require the access provider to prepare and disclose information consisting of, or about, the following things, as part of the information required under this section,—
a: contracts:
b: prices, terms, and conditions of supply of prescribed services:
c: transactions with related parties (as if the test for related parties were the same as the test in section 79
d: performance measures and statistics (for example, response times, technical performance, and service quality details):
e: plans and forecasts:
f: network capacity information:
g: policies and methodologies in these or other areas.
4: Access providers must prepare and disclose any information required under this section in accordance with the Commission's requirements.
5: Subsection (3) subsection (2) 1986 No 5 s 57T(2), (3)
69ZD: Miscellaneous provisions relating to Commission's information disclosure requirements
1: The Commission may, in making requirements under section 69ZB or 69ZC
a: prescribe the form and manner in which information must be disclosed:
b: specify a time or date, or times or dates, as at which information must be disclosed:
c: require the disclosure of assumptions made in the preparation of the information:
d: require the audit of disclosed information:
e: require disclosed information, or information from which disclosed information is derived (in whole or in part), to be certified, in the prescribed form and manner by persons belonging to any specified class of persons:
f: set rules about when and for how long information must be disclosed:
g: require the retention of data on which disclosed information is based and associated documentation:
h: exempt or provide for exemptions (including provide for the revocation of exemptions), on any terms and conditions, of any person or class of persons from all or any of the requirements:
i: provide for transitional provisions:
j: make requirements from time to time (for example, more than once a year):
k: make requirements in respect of all or part of the relevant business.
2: Subsection (1)(j) section 16 of the Interpretation Act 1999 1986 No 5 s 57T(8)
69ZE: Publication of Commission's information disclosure requirements
The Commission must give public notice of requirements made under this Part. 1986 No 5 s 57T(4)
69ZF: Information to be supplied to Commission
1: Every person who is required under this Part to disclose information must supply to the Commission—
a: a copy of all information disclosed under this Part, which must be supplied within 5 working days after the information is first disclosed under this Part; and
b: any further statements, reports, agreements, particulars, and other information requested in writing by the Commission for the purpose of monitoring the person's compliance with the requirements made under this Part.
2: Every person to whom a request is made under subsection (1)(b)
3: The Commission may require all or any statements, reports, agreements, particulars, and other information supplied under subsection (1)
a: audited:
b: verified by statutory declaration by the persons and in the form required by the Commission. 1986 No 5 s 57U
69ZG: Commission to publish summaries
The Commission must, as soon as practicable after the Commission is supplied with information under section 69ZF
a: the operation and behaviour of the relevant prescribed businesses of Telecom and access providers; and
b: the changes in operation and behaviour over time. 1986 No 5 s 57V
69ZH: Reasonable charge may be imposed for providing copies of statements
1: Any person who is required under this Part to provide copies of information, on request, to the public may charge for providing those copies.
2: A charge must be no more than is reasonably required to recover the costs of providing those copies. 1986 No 5 s 57W
33: Declaration of TSO instruments
Section 70(5)
34: New section 71A inserted
The following section is inserted after section 71
71A: TSO instrument or deemed TSO instrument may specify total amount payable by all liable persons
A TSO instrument or a deemed TSO instrument may specify the total amount payable by all liable persons and the TSO provider under the instrument for each financial year of the TSO provider (the specified amount)
35: Compliance with TSO instrument
Section 74(1) TSP TSO provider
36: New section 79 substituted
Section 79
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: 1 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: 1 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)
3: A body corporate is not able to exert a substantial degree of influence over another body corporate for the purposes of subsection (2)
a: those bodies corporate are in competition in the same market; or
b: 1 of them supplies goods or services to the other.
37: Assessment of compliance with TSO instrument
1: Section 80 TSP TSO provider
2: Section 80(a) TSP's TSO provider's
38: New heading inserted
The heading Requirement to produce certain information section 81
39: Liable persons and TSP must produce certain information to Commission
1: The heading to section 81 TSP TSO provider
2: Section 81
a: omitting section 88(a)(ii) and (b)(i) section 88(1)(a) and (b)
b: omitting section 92(a)(ii) and (b)(i) section 91(1)(a) and (b)
c: omitting TSP TSO provider
40: Section 82 repealed
Section 82
41: Calculations of net cost and auditor's report must be given to Commission
Section 83 TSP TSO provider
42: Considerations for determining net cost
1: Section 84(1) section 88 section 92 section 93A section 93E
2: Section 84(2) section 88 section 92 section 93A section 93E
3: Section 84 TSP TSO provider
43: Considerations for determining which revenue basis to use
1: Section 85(1)
a: omitting a draft determination referred to in section 88 section 92 a draft determination referred to in section 88 section 91
b: omitting section 88(a)(ii) or (b)(i) or section 92(a)(ii) or (b)(i) section 88(1)(a) or (b) or section 91(1)(a) or (b)
2: Section 85(4)(b) TSP TSO provider
44: New headings and sections 86 to 93F substituted
The heading above section 86 86 to 93 General provision relating to TSO cost allocation determination and TSO cost calculation determination
86: Commission may determine priority between preparation of TSO cost allocation determination and TSO cost calculation determination
1: The Commission may determine the priority between the preparation of the TSO cost allocation determination and the TSO cost calculation determination and, accordingly, may comply with sections 87 to 91 and sections 92 to 93E
2: However, the Commission must prepare a final TSO cost allocation determination before preparing a final TSO cost calculation determination for a financial year. TSO cost allocation determination
87: Commission to prepare draft TSO cost allocation determination
The Commission must make reasonable efforts to do the following things not later than 80 working days after the end of each financial year of a TSO provider under a TSO instrument:
a: prepare a draft TSO cost allocation determination:
b: give public notice of that draft determination:
c: include in the public notice the closing date for submissions, which must not be later than 20 working days after the date of giving public notice.
88: Matters to be included in draft TSO cost allocation determination
1: A draft TSO cost allocation determination must include—
a: the amount of each TSO provider's TSO-qualified revenue; and
b: the amount of each liable person's TSO-qualified revenue; and
c: a statement that identifies which revenue basis has been used under section 85(1)
d: if a weighted revenue basis has been used for any amount of revenue, the particulars of the weighting attached to that amount of revenue; and
e: the revenue amounts that will be used for the purposes of calculating, under section 93F
f: the methodology applied by the Commission in making the determination; and
g: the reasons for the determination.
2: To avoid doubt, the Commission may determine what revenue basis to use for the purposes of subsection (1)(c)
89: Conferences on draft TSO cost allocation determination
The Commission may—
a: hold conferences in relation to a draft ISO cost allocation determination; and
b: invite to those conferences any person who has a material interest in a matter to be determined.
90: Commission to prepare final TSO cost allocation determination
The Commission must make reasonable efforts to do the following things not later than 20 working days after the closing date for submissions under section 87(c)
a: prepare a final TSO cost allocation determination:
b: give public notice of that final determination:
c: give a copy of that final determination to all liable persons and TSO providers in relation to each TSO instrument.
91: Matters to be included in final TSO cost allocation determination
1: A final TSO cost allocation determination under section 90
a: the amount of each TSO provider's TSO-qualified revenue; and
b: the amount of each liable person's TSO-qualified revenue; and
c: a statement that identifies which revenue basis has been used under section 85(1)
d: if a weighted revenue basis has been used for any amount of revenue, the particulars of the weighting attached to that amount of revenue; and
e: the revenue amounts that have been used for the purposes of calculating, under section 93F
f: the percentage of the net cost under section 93E(a) section 93F
2: To avoid doubt, the Commission may determine what revenue basis to use for the purposes of subsection (1)(c) TSO cost calculation determination
92: Commission to prepare draft TSO cost calculation determination
The Commission must make reasonable efforts to do the following things not later than 120 working days after the end of each financial year of a TSO provider under a TSO instrument:
a: prepare a draft TSO cost calculation determination:
b: give public notice of that draft determination:
c: include in the public notice the closing date for submissions, which must not be later than 20 working days after the date of giving public notice.
93: Requirements for draft TSO cost calculation determination
In preparing a draft TSO cost calculation determination of the matters referred to in section 93A(c) section 80(b) section 92(b)
93A: 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 under section 93E(a)
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
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: in all cases, the amount (if any) by which the total amount that the TSO provider would receive from all liable persons 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 making the determination; and
e: the reasons for the determination.
93B: 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 a matter to be determined.
93C: Commission to prepare final TSO cost calculation determination
The Commission must make reasonable efforts to do the following things not later than 40 working days after the closing date for submissions under section 92(c)
a: prepare a final TSO cost calculation determination:
b: give public notice of that final determination:
c: give a copy of that final determination to all liable persons and the TSO providers in relation to the TSO instrument.
93D: Requirements for final TSO cost calculation determination
In making a final TSO cost calculation determination of the matters referred to in section 93E(c) section 92(b) and 15 section 93C(b)
93E: Matters to be included in final TSO cost calculation determination
A final cost calculation determination made under section 93C
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 TSO provider's 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
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: in all cases, the amount (if any) by which the total amount that the TSO provider would receive from all liable persons in relation to the TSO instrument must be reduced because the TSO provider has not complied with the TSO instrument; and
d: an amount payable by each liable person in relation to the TSO instrument to the TSO provider in respect of the financial year calculated in accordance with section 93F
e: an amount payable by each liable person in relation to the TSO instrument to the TSO provider for the loss of use of the amount referred to in paragraph (c) Calculation of amount payable by liable person
93F: Calculation of amount payable by liable person
The amount payable by a liable person in relation to a TSO instrument that must be contained in the Commission's final TSO cost calculation determination made under section 93C
a: for a TSO instrument that contains a specified amount, the amount calculated using the following formula:
b: for a TSO instrument that does not contain a specified amount, the amount calculated using the following formula: where—
a: is the amount of the liable person's TSO-qualified revenue that is referred to in section 91(1)(b)
b: is the amount of the TSO provider's TSO-qualified revenue referred to in section 91(1)(a)
c: is the sum of the amounts of each liable person's TSO-qualified revenue referred to in section 91(1)(b)
d: is the specified amount
e: is the amount of the reduction (if any) referred to in section 93E(c)
f: is the net cost referred to in section 93E(a)
45: Payment by liable persons to TSP
1: The heading to section 94 TSP TSO provider
2: Section 94 TSP TSO provider
46: New heading and section 94A inserted
The following heading and section are inserted after section 94 Calculation of amount payable by TSO provider
94A: ISO provider must meet residual amount from calculation of TSO charge
The TSO provider must meet any amount that remains after subtracting all of the amounts payable by liable persons under section 93F
47: Power of Court to grant relief in respect of TSO instrument
Section 96 TSP TSO provider
48: Certain matters not to prevent making of order under section 96
Section 98(a) TSP TSO provider
49: Right of appeal to High Court
1: Section 100(1) TSP TSO provider
2: Section 100(1)(a) section 92(a)(i) section 93E(a)
3: Section 100(1)(b) section 92(a)(ii) section 91(1)(a)
4: Section 100(1)(c) section 92(b)(i) section 91(1)(b)
5: Section 100(1)(d) section 92(b)(ii) section 93E(c)
50: New sections 100A to 100C inserted
The following sections are inserted after section 100
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.
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)
a: draft TSO cost calculation determination under section 92
b: final TSO cost calculation determination under section 93C
2: The information referred to in subsection (1)
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)
100C: Duties of Commission in complying with section 100B
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 66 of the Privacy Act 1993
2: However, if the Commission considers that compliance with subsection (1)(a) subsection (1)(b) or (c)
a: may aggregate the information before it is included under section 100B
b: may do so in any manner that it thinks fit.
51: Regulations
1: Section 101(1) paragraph (d)
d: provide for any methods for all or any of the following:
i: calculating the net cost under section 83
ii: preparing a draft determination of the net cost referred to in section 93E
iii: determining the net cost referred to in section 93E
iv: preparing a draft determination of the amount of revenue referred to in section 88(1)(a) or (b)
v: determining the amount of revenue referred to in section 91(1)(a) or (b)
2: Section 101(2) TSP TSO provider
52: Persons declared to be network operators
Section 102 subsection (3)
3: For the purposes of this section and sections 103 to 105
a: 1 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: 1 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)
5: A body corporate is not able to exert a substantial degree of influence over another body corporate for the purposes of subsection (4)
a: those bodies corporate are in competition in the same market; or
b: 1 of them supplies goods or services to the other.
53: New heading and section 111A inserted
The following heading and section are inserted after section 111 Information requirement
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 PSTN or PDN owned or operated by that supplier; and
b: all the applicable terms and conditions of supply for interconnection with that PSTN or PDN.
2: In this section, major supplier
a: means Telecom; and
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)
54: New Parts 4A and 4B inserted
The following Parts are inserted after Part 4
4A: Enforcement
1: Enforcement of statutory and regulatory provisions
Preliminary
156A: Application of section 156B
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 of Part 2 of Schedule 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 of Part 2 of Schedule 1
g: fails, without reasonable excuse, to comply with an information disclosure requirement made under section 69ZB(7), 69ZC(4), or 69ZF(2)
h: knowingly provides false or misleading information or documents under Part 2B
i: fails, without reasonable excuse, to comply with section 81
j: knowingly provides false or misleading information or documents under section 81
k: fails, without reasonable excuse, to comply with section 83
l: knowingly provides false or misleading information or documents under section 83
m: fails , without reasonable excuse, to comply with section 111A
n: fails, without reasonable excuse, to comply with any regulations made under section 157(ch)
156B: Enforcement actions that Commission may take
1: The Commission may take either of the following actions against a person to whom this section applies:
a: serve a civil infringement notice on the person under section 156D
b: apply to the High Court for an order, under section 156L
2: This section does not limit any power conferred on the Commission by or under section 15
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. Civil infringement notice
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, to the notice
g: any other prescribed information (if any).
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.
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)
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)
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.
156H: Consequence of not paying pecuniary penalty specified in civil infringement notice
1: The consequence specified in subsection (2)
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 a 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)
156I: Right to appeal
1: A person may appeal to a District Court if the person is dissatisfied with a decision of the Commission to refuse the person's objection to a civil infringement notice.
2: An appeal under subsection (1) section 156F(1)(c)
3: An appeal under subsection (1)
156J: Decision on appeal
1: A District Court must determine an appeal under 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
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 Pecuniary penalty
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 a separation undertaking under Part 2A
b: the person has committed a breach of any of the provisions set out in section 156A
2: In determining an appropriate penalty to be imposed under this section, the High Court must have regard to all relevant matters, including the nature and extent of any commercial gain.
3: The amount of ally pecuniary penalty for each act or omission must not exceed—
a: $10 million for a breach referred to in subsection (1)(a)
b: $1 million for a breach referred to in section 156A(g) section 69ZB
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)
7: However, no person is liable to more than 1 pecuniary penalty under this section for the same conduct.
156M: Further penalty may be imposed for continuing breach
1: In addition to a pecuniary penalty imposed under section 156L section 156L(1)
a: $500,000 for a breach referred to in section 156L(1)(a)
b: $50,000 for a breach referred to in section 156A(g) section 69ZB(7), 69ZC(4), or 69ZF(2)
c: $10,000 for any other case.
2: To avoid doubt, any further penalty under subsection (1)
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.
2: Enforcement of determinations, approved codes, and registered undertakings
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: a residual terms determination made under section 30ZB
d: a designated multinetwork service determination made under section 39
e: a separation undertaking under Part 2A
f: an approved code under Schedule 2
g: a registered undertaking under Schedule 3A party Part 2A
156O: Complaints of breach of enforceable matter
1: An access seeker or an access provider of a designated access service or specified service may make a written complaint to the Commission alleging a breach of an enforceable matter.
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)
4: In deciding whether to take the action referred to in subsection (2)(b)(ii)
a: must consider the purpose set out in section 18
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) Part 2A
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, or a separation undertaking under Part 2A section 156O
3: An enforceable matter filed in the High Court under subsection (1)
4: An enforceable matter is enforceable in accordance with subsection (3)
5: A party who has filed a determination under subsection (1) section 58 section 59
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.
156R: Limit on amount of pecuniary penalty
The amount of any pecuniary penalty imposed under section 156Q(2)
4B: Consumer complaints
1: Preliminary
156S: Commencement of this Part
1: This Part comes into force on a date to be appointed by the Governor-General, by Order in Council, made on the recommendation of the Minister in accordance with section 156T
2: For the purposes of subsection (1), 1
156T: Process to apply before Part may be commenced
1: The Minister may recommend the making of an Order in Council under section 156S(1) only if the Minister is satisfied, at the time of making the recommendation, that any of the following applies:
a: no industry-based complaints resolution system has been established:
b: an industry-based complaints resolution system has been established, but in the Minister's opinion it has failed to achieve the purpose of this Part set out in section 156U and the objectives of a consumer complaints system set out in section 156X:
c: the provisions being brought into force by the Order in Council are necessary to implement Government policy:
d: the Commission has reported to the Minister under section 246(5)(c) Part 7
i: the scheme fails to achieve the purpose set out in section 247
ii: the scheme provider fails to achieve the purpose set out in section 248
2: The Minister may not recommend the making of an Order in Council under subsection (1)(a) to (c) unless the Minister is satisfied that appropriate consultation has been carried out in accordance with section 156ZJ.
156U: Purpose of this Part
1: The purpose of this Part is to facilitate the resolution of complaints by consumers against service providers.
2: To that end, this Part—
a: facilitates the establishment of 1 or more consumer complaints systems; and
b: provides for the appointment of a consumer complaints adjudicator; and
c: imposes a consumer complaints levy on applicable service providers to fund the costs of the consumer complaints adjudicator.
156UA: Appointment of consumer complaints system
1: The Minister may, by notice in the Gazette
a: appoint a system to be a consumer complaints system under this Part (with or without conditions) for a term specified by the Minister; and
b: set rules for the system; and
c: set rules about the funding of the system.
2: To avoid doubt, this Part does not preclude—
a: the existence of 1 or more industry-based complaints resolution systems in addition to 1 or more systems appointed under this Part; and
b: the dispute resolution scheme provider for a Commission RSQ code being the person responsible for a consumer complaints system.
156V: Interpretation
In this Part, unless the context otherwise requires,— applicable service provider consumer , and includes an owner or occupier for the purposes of complaints under subpart 3 consumer complaints adjudicator section 156Z consumer complaints levy section 156ZH consumer complaints system designated person
156W: Power to exempt service providers from application of consumer complaints system
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, declare a service provider, or a class of service providers, to be exempt from the application of a consumer complaints system.
2: The Minister may not recommend the making of an Order in Council under subsection (1) section 156ZJ
156X: Objectives of consumer complaints system
1: When considering appointing a system under this Part, the Minister must have regard to the following considerations in light of the principles listed in subsection (2):
a: whether the system has an appropriate purpose:
b: whether the applicant has undertaken reasonable consultation on the system with members or potential members of the system, and persons (or their representatives) likely to be substantially affected by the system:
c: whether the applicant's directors and senior managers are competent to manage a consumer complaints system:
d: whether the rules about the system are adequate and comply with the principles listed in subsection (2).
2: The principles are as follows:
a: accessibility:
b: independence:
c: fairness:
d: accountability:
e: efficiency:
f: effectiveness.
156Y: Requirements for consumer complaints system
1: A consumer complaints system must—
a: achieve the objectives set out in section 156X
b: set out the procedures that the consumer complaints adjudicator must use for receiving, investigating, and resolving complaints; and
c: set out appropriate and auditable documentation and record keeping:
d: comply with any other requirements prescribed by regulations made under this Act.
2: A consumer complaints system may provide for the development of codes of practice relating to consumer complaints.
3: Any codes of practice must be available for inspection by the public, free of charge,—
a: at the system's head office (during ordinary office hours); and
b: on an Internet site in an electronic form that is publicly available at all reasonable times.
4: To avoid doubt, a consumer complaints system may resolve complaints by consumers against service providers in relation to a Commission RSQ code.
156YA: Obligation to publish rules
The person responsible for an appointed consumer complaints system must make copies of the rules about the system available for inspection by the public, free of charge,—
a: at the system's head office (during ordinary office hours); and
b: on an Internet site in an electronic form that is publicly available (at all reasonable times).
156YB: Duty to notify change to rules
The person responsible for an appointed consumer complaints system must notify the Minister if the person wishes to change the rules about the system.
156YC: Minister's consideration of change of rules
1: After receiving a notification under section 156YB
a: approves the change; or
b: considers the proposed change is not adequate and does not comply with the principles listed in section 156X(2)
2: If subsection (1)(b)
3: If the Minister does not notify the person responsible for the system in accordance with subsection (1)
2: Consumer complaints adjudicator
156Z: Appointment of consumer complaints adjudicator
1: The Minister may, by notice in the Gazette
2: A notice under this section must state—
a: the date on which the appointment takes effect; and
b: the term of the appointment.
156ZA: Qualification for appointment as consumer complaints adjudicator
1: The Minister may not appoint a person or an entity as a consumer complaints adjudicator unless—
a: the person or, in the case of an entity, the entity's designated person is suitably qualified or trained to carry out that role; and
b: the person or entity has consented in writing to the appointment; and
c: the person or, in the case of an entity, the entity's designated person has certified in writing that he or she is not disqualified in terms of subsection (2)
2: A person or, in the case of an entity, the entity's designated person is disqualified if he or she is—
a: under 18 years of age:
b: an undischarged bankrupt:
c: prohibited from being a director or promoter of, or being concerned or taking part in the management of, a company under section 382, 383, or 385 of the Companies Act 1993
d: subject to a property order made under section 10, 11, 12, 30, or 31 of the Protection of Personal and Property Rights Act 1988
e: has been convicted of an offence punishable by imprisonment for a term of 2 years or more or has been sentenced to imprisonment for any other offence.
156ZB: Revocation of appointment
The Minister may at any time, by notice in the Gazette
a: requested by the person or entity; or
b: the person's or entity's term of appointment has expired; or
c: the Minister is satisfied that—
i: the person or entity has neglected to perform the functions or duties, or exercise the powers, of a consumer complaints adjudicator under this Act; or
ii: the person or, in the case of an entity, the entity's designated person is disqualified in terms of section 156ZA(2)
156ZC: Functions and duties of consumer complaints adjudicator
The functions and duties of the consumer complaints adjudicator are—
a: to inquire into and investigate complaints made under a consumer complaints system in a way that is consistent with the rules of natural justice:
b: to promote, in appropriate cases, the resolution of those complaints by negotiation, conciliation, or mediation:
c: to make final determinations in relation to those complaints (which may include, if appropriate, an order imposing any remedies or sanctions on the applicable service provider concerned that the consumer complaints adjudicator thinks appropriate):
d: to ensure that the final determinations in relation to those complaints are enforced:
e: to publish information with a view to making it known how complaints about applicable service providers may be made:
f: if more than 1 consumer complaints system is established, to ensure, throughout New Zealand, both the consistency and the quality of those consumer complaints services.
156ZD: Powers of consumer complaints adjudicator in relation to complaints
1: The consumer complaints adjudicator may, in relation to any complaint made under a consumer complaints system,—
a: seek and receive any statement, document, information, or matter that may, in the adjudicator's opinion, assist in dealing effectively with the matters before the adjudicator, whether or not the statement, document, information, or matter would be admissible in a court of law; and
b: make any inquiries or investigations that the adjudicator thinks appropriate.
2: Subsection (1)
3: The consumer complaints adjudicator may decide to take no action or, as the case may require, no further action, on any complaint if, in the opinion of the adjudicator,—
a: the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made is such that an investigation of the complaint is no longer practicable or desirable; or
b: the subject matter of the complaint is trivial; or
c: the complaint is frivolous or vexatious or is not made in good faith; or
d: the complainant does not desire that action be taken or, as the case may be, continued; or
e: the complainant does not have sufficient personal interest in the subject matter of the complaint; or
f: there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to an Ombudsman, that it would be reasonable for the complainant to exercise.
4: Despite anything in subsection (3)
156ZE: Consumer complaints adjudicator may seek agreed settlement or order compensation
1: If the consumer complaints adjudicator determines that a complaint against an applicable service provider is substantiated after inquiring into or investigating the complaint, the adjudicator may—
a: assist the parties to reach an agreed settlement in relation to the complaint or any issue involved in the complaint and, if the parties consent, record the terms of settlement as part of the adjudicator's final determination; or
b: order the applicable service provider concerned to do either or both of the following:
i: pay compensation to the complainant:
ii: take any remedial action that the adjudicator thinks fit.
2: Any compensation ordered to be paid under subsection (1)(b)(i)
156ZF: Right of appeal
1: A complainant or an applicable service provider may appeal to a District Court if the complainant or applicable service provider is dissatisfied with the consumer complaints adjudicator's final determination of a complaint.
1A: For the avoidance of doubt, an appeal under subsection (1) cannot be made by either party after a binding settlement has been agreed to.
2: An appeal under subsection (1) must be brought within 20 working days after the date of the final determination.
3: In determining an appeal under subsection (1)
a: confirm, modify, or reverse the adjudicator's final determination; or
b: refer all or any part of the matter back to the adjudicator for further consideration, together with—
i: any directions it thinks just relating to the reconsideration; and
ii: a written statement of its reasons for doing so.
3: Consumer complaints levy
156ZG: Purpose of subpart
The purpose of this subpart is to provide for the recovery from applicable service providers of the cost to the Crown of—
a: the preparation of the performance of, and the performance of, the consumer complaints adjudicator's functions and duties under this Act; and
b: the preparation of the exercise of, and the exercise of, the consumer complaints adjudicator's powers under this Act.
156ZH: Consumer complaints levy
1: Every applicable service provider, or class of applicable service providers, must pay to the Minister, in each financial year or part financial year (as the case may require), a levy of an amount stated in, or calculated or set or reset in accordance with, regulations made under subsection (4)
2: The levy for the first financial year or part financial year (as the case may require) may include the costs incurred from the date of commencement of this Part for, or in connection with, the appointment of a consumer complaints adjudicator.
3: Subsections (1) and (2)
4: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations—
a: specifying the amounts of levies payable under this section:
b: providing for the method by which those levies will be calculated:
c: specifying the criteria and other requirements by and against which those levies will be set or reset:
d: specifying the financial year or part financial year to which those levies apply:
e: providing for the payment and collection of those levies:
f: exempting any applicable service provider or class of applicable 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 applicable service provider or class of applicable service providers under this section.
5: The Minister may not recommend the making of regulations under subsection (4) section 156ZJ
156ZI: Late payment of consumer complaints levy
1: If any applicable service provider liable to pay the consumer complaints levy fails to pay the whole amount of that levy by the date specified in regulations made under section 156ZH(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.
4: Miscellaneous
156ZJ: Consultation requirements for making Order in Council or regulation under this Part
1: This section applies to—
a: an Order in Council proposed to be made under section 156S(1) or 156W(1)
b: regulations proposed to be made under section 156ZH(4)
2: Before making a recommendation for the making of an Order in Council or regulations to which this section applies, the Minister must consult with the persons, or representatives of the persons, that the Minister considers will be substantially affected by the making of the relevant Order in Council or regulations.
3: The process for consultation should, to the extent practicable in the circumstances, include—
a: giving adequate and appropriate notice of the intention to make the Order in Council or regulations; and
b: giving a reasonable opportunity for interested persons to make submissions; and
c: adequate and appropriate consideration of submissions.
4: A failure to comply with this section does not affect the validity of any Order in Council or regulations made. Section 54 amended 13 November 2018 section 33 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 54 amended 13 November 2018 section 34 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 54 amended 13 November 2018 section 35 Telecommunications (New Regulatory Framework) Amendment Act 2018 Section 54 amended 1 July 2011 section 26(2) Telecommunications (TSO, Broadband, and Other Matters) Amendment Act 2011
55: Regulations
1: Section 157 paragraph (c)
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)
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:
56: Schedule 1 amended
Schedule 1 Schedule 1
57: Schedule 2 amended
Schedule 2 Schedule 2
58: Schedule 3 amended
Schedule 3 Schedule 3
59: New Schedule 3A inserted
The Schedule 3A set out in Schedule 4 Schedule 3
2: Consequential amendments and transitional provisions
Consequential amendments
60: Telecommunications (Fixed Public Data Network) Order 2004 revoked
The Telecommunications (Fixed Public Data Network) Order 2004
61: Amendments to Telecommunications Operators (Commerce Commission Costs) Levy Regulations 2002
1: This section amends the Telecommunications Operators (Commerce Commission Costs) Levy Regulations 2002
2: Regulation 4 final TSO revenues final TSO revenues
a: all TSO providers' TSO-qualified revenues; and
b: all liable persons' TSO-qualified revenues
3: Regulation 4 revenue amount revenue amount
a: the amount of the TSO provider's TSO-qualified revenue; or
b: as the case may be, the amount of a liable person's TSO-qualified revenue
4: Regulation 9(2)(c) subparagraph (i)
i: any costs of the Commission in relation to a determination or application for a determination that are met by the parties to the determination under section 55 of the Act Transitional provisions
62: Transitional provision for uncompleted determinations under section 27
1: This section applies if, before the commencement of this Act, the Commission was—
a: considering an application under section 20
b: otherwise in the process of investigating or preparing a determination under section 27
2: The Commission may continue and complete the matter in accordance with—
a: subpart 2
b: subpart 2A of Part 2 of the principal Act (as inserted by this Act) as if the determination under section 27
3: For the purposes of subsection (2)(b), the provisions of subpart 2A of Part 2 of the principal Act (as inserted by this Act) apply with any necessary modifications.
63: Transitional provision for TSO determinations
Despite the amendments made by this Act to the principal Act, the principal Act continues to apply as if those amendments had not been made in respect of any TSO determinations that were commenced, but not completed, before the commencement of this Act.
64: Transitional provision for enforcement of determinations and approved codes made before commencement of this Act
1: This section applies to any of the following matters that were made or approved before the commencement of this Act:
a: a determination under section 27
b: an approved code under Schedule 2
2: A matter to which this section applies may be enforced in accordance with subpart 2 of Part 4A of the principal Act.
3: For the purposes of subsection (2)
a: the definition of enforceable matter
i: the reference in paragraph (a) of that definition to a determination made under section 27
ii: the reference in paragraph (f) of that definition to an approved code under Schedule 2
b: the other provisions of subpart 2 of Part 4A of the principal Act apply with any necessary modifications.
65: Transitional provision for descriptions of services in existing determinations
Despite the amendments made to the designated access services under Part 2
66: Transitional provision for uncompleted Schedule 3 investigations
1: This section applies to investigations under Schedule 3
2: The Commission may continue and complete an investigation to which this section applies in accordance with—
a: Schedule 3
b: Schedule 3