Under one possible interpretation of the Telecommunications Act, TelstraClear could sign up customers in a new housing subdivision then require Telecom to reticulate the properties and offer the capacity to TelstraClear at a wholesale discount rate, says Telecom spokesman John Goulter.
This, he admits, is “an extreme example” of a matter on which Telecom is asking the High Court for clarification of the Act’s definitions of what constitutes the “core telecommunications network” which must be offered to other providers at wholesale rates. It is arguable that new infrastructure does not qualify for that description, he says.
More realistically, a competitor could request supply of ancillary services such as Call Minder at discount rates to boost the appeal of a telephone service the competitor operates. “We say these are value-added services that we provide and are not part of the core offering,” Goulter says.
A second issue on which Telecom is requesting clarification is the Commissioner’s ability to backdate determinations which have been appealed and reviewed, so they take effect from the date of the original determination. One such determination, on wholesale rates, is still under review, Goulter says, but could potentially be backdated to 2002.
Section 42 of the Act says: “A [pricing] determination …. continues to have effect and is enforceable pending the making of a pricing review determination” and later, at Section 51(2); “to avoid doubt, [such] a determination ….continues to have effect and is enforceable to the extent that it has not been altered by a pricing review determination.” The law, Telecom suggests, says nothing definite about whether a revised determination can be backdated.
Telecom is looking to the future rather than trying to relitigate the past, he insists. On the question of defining the core network, there is no particular case of recent occurrence on which Telecom wants a ruling. “We’re asking for clarification of issues going forward, so the way the law applies is clear before [a relevant case] happens.”
Industry sources, however, suggest that it is more than that; that with a number of the Commission’s determinations scheduled to come to a head, Telecom is attempting to cast a broad-ranging doubt on the Telecommunications Commissioner’s authority and the way he is doing his job. “I understand there has been some fairly testy correspondence between them, and that would surprise nobody,” said one.
Tuanz chief Ernie Newman says he “wouldn’t go so far as to suggest an ulterior motive; but from past experience of the dynamics of the industry and its relationship with the regulator, the impact [of Telecom’s request] is likely to be a slowing of the process and a deflection of discussion from the issues that matter. That won’t [achieve anything positive] for the user.”