Telecom has several avenues of argument against Kiwi Share

Telecom has a range of possible legal avenues if its new numbering policy is challenged on the basis of the Kiwi Share. It could argue that the Kiwi Share never applied to data traffic, that cellular networks provide effective competition, - or that the Kiwi Share should be extinguished becase it has become unfair.

One objection raised over Telecom's decision to move all Internet traffic onto its new numbering scheme is that the decision violates the Kiwi Share agreement that is part of Telecom's founding constitution.

"A local free-calling option will be maintained for all residential customers," says point 5.2.1 of the First Schedule of Telecom's constitution. This was enacted when Telecom was initially sold as a State-Owned Enterprise (SOE) in 1990. While that seems clear cut, the clause goes on to say,

"Telecom may, however, develop optional tariff packages which entail local call charges for those who elect to take them, as an alternative."

One lawyer contacted by Computerworld, who asked not to be identified, says the more important question is whether the Kiwi Share provision covers data or voice over IP in the first place. "Telecom might well argue that Kiwi Share does not contemplate data transfer and never did."

The Kiwi Share provision also has a clause that says the share will remain unless it becomes unfair, and Telecom could very well argue that this has happened.

"Telecom has several arguments that attack the obligation. One is that there is now workable and effective competition in the marketplace." Another reason is that with a cellular network in place there is an alternative to the line-based network for voice calls.

"Telecom could also say that an environment where the entire network is used for data transfer is a fundamentally different environment [from the one envisaged in the Kiwi Share provision]."

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