Scrap looms over UBS decision

Telecom warns Commerce Commission of 'gross procedural errors'

Telecom may be preparing the ground for a judicial review of the Commerce Commission's next Unbundled Bitstream Service decision. Last week the telco sent an angry letter to the Commission and TelstraClear, just two days before a Commission workshop looking into technical aspects of UBS.

In the letter, sent by Telecom's acting assistant general counsel Vanessa Oakley on July 19, Telecom outlined its objections to both the content of the workshop and the process itself and called for the workshop to be delayed.

"Telecom considers that the proposals outlined are unreasonable from a technical and operational practicability perspective, inefficient and expensive," the letter says. It asks the Commission to "refocus" the workshop.

The letter also calls on the Commission to "redefine the regulated service and proposed pricing after the workshop in an amended draft determination" which would be followed by a further round of submissions, cross-submissions and a further conference.

"In the absence of these steps Telecom considers that gross procedural errors have occurred," the letter says. The language appears deliberate: a "procedural error" is the only grounds for a judicial review of the Commission's decision-making process and under the Telecommunications Act is the only way to appeal a decision.

The Commission wrote to Telecom on July 14 outlining the two-day workshop which will look at technical issues resulting from the Commission's investigation of UBS pricing and availability. A "relatively informal" workshop was planned with discussions on technical issues, such as sharing resources, spectrum management, interleaving and several network performance measurement parameters like jitter, packet loss, contention ratio and latency.

The Commission declined to accommodate Telecom's last-minute requests for an adjustment and the workshop began as scheduled at 9am on Thursday. Asked whether Telecom felt inconvenienced by the rejection of its contention, lead negotiator Murray Milner shrugged and said “these things happen".

As well as the two telcos, InternetNZ was represented at the workshop by Don Stokes and lawyer Michael Wigley, and Ihug by David Diprose.

The initial part of the conference was taken up with objections to some material, particularly that presented by Telecom, on the grounds that it was new since the earlier full conference on the topic, and parties had not had time to examine it.

TelstraClear consented to having the disputed material “read into the record”, with a proviso that some could be later objected to, but the InternetNZ representatives were uncomfortable even with this degree of tolerance.

TelstraClear's manager of regulatory affairs, Grant Forsyth, says Telecom originally came up with the dates for the conference and it's churlish to try to make changes at the last minute.

Forsyth says everyone has already made plenty of submissions on the subject and attended the Commission's conference, held earlier in the month, and he rejects Telecom's call for an ammended draft determination.

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