Commission confirms its approach to monitoring and enforcing non-discrimination and equivalence obligations

The Commerce Commission has today released guidance about how it will monitor and enforce obligations on telecommunication network operators to offer fibre and other wholesale services to retailers on an equivalent and non-discriminatory basis.

The equivalence and non-discrimination obligations are fundamental principles of the new telecommunications regime.

The guidance is the product of extensive consultation and will help industry understand the Commission’s approach to these obligations when exercising its monitoring and enforcement powers.

“The release of this final guidance will provide the wider industry with clarity on obligations in undertakings given under the Telecommunications Act” Telecommunications Commissioner Tristan Gilbertson said.

“Local fibre companies (LFCs) must supply unbundled fibre products to retailers on a non-discriminatory and equivalent basis. Following a call for evidence in May, we are now looking into whether the non-price terms on which these products are offered meet this requirement.”

“We strongly encourage fibre providers to review their product offerings against the guidance we have issued and to make any changes necessary to bring them into compliance as quickly as possible”, Mr Gilbertson said.

“We also encourage retailers to raise issues with the LFCs where they believe the product offerings are not meeting the required obligations.”

The final guidance document is available on the Commission’s website.

Background

The Government’s Ultra-Fast Broadband (UFB) initiative which launched in 2009 originally aimed to provide fibre-to-the-premises to 75% of New Zealand’s population by 2020 through the building of new fibre networks in major towns and cities throughout New Zealand. The programme was expanded twice in 2017, and now aims to achieve fibre-to-the-premises to 87% of the population by 2022.

These new fibre networks enable faster and more reliable voice and broadband internet services to be supplied to consumers. From 1 January 2020 the LFCs (Chorus, Enable Networks, Northpower and Ultrafast Fibre) are required to provide unbundled fibre access on equivalent and non-discriminatory basis to retailers to promote competition and innovation over fibre networks.

An overview of equivalence and non-discrimination

At its simplest equivalence requires that the network operator supplies the service and access to the operator’s network so that third-party access seekers are treated in the same way as the operator’s own business operations.

Non-discrimination requires that the network operator not treat access seekers differently, or, where the network operator supplies itself with a relevant service, not treat itself differently from other access seekers.

Consultation process

The Commission published its draft guidance for consultation in March 2020. As part of the consultation, the Commission sought and published expert guidance on equivalence and non-discrimination issues in telecommunications markets. The Commission received extensive input from industry and other stakeholders which has been reflected in the final guidance. The Commission has added a short section on how the Commerce Act interfaces with the Telecommunications Act, expanded commentary on the scope of application of equivalence of inputs, and updated the information relating to alternative cost standards and the difference in treatment with regards to price and non-price terms.

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