Chorus Limited v Minister for the Digital Economy and Communications
[2023] NZHC 662
•29 March 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-572
[2023] NZHC 662
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
the Telecommunications (Regulated Fibre Services) Regulations 2021 and Part 6 and Schedule 1AA to the Telecommunications Act 2001
BETWEEN
CHORUS LIMITED
Applicant
AND
MINISTER FOR THE DIGITAL
ECONOMY AND COMMUNICATIONS
First RespondentGOVERNOR-GENERAL
Second RespondentContinued…
On the Papers Counsel:
T D Smith and J Papps for the Applicant
T Smith, S Connolly and C Sykes for the First and Second Respondents
J Every-Palmer KC and J Wass for the First Intervener Appearances excused for the Second and Third Interveners
Judgment:
29 March 2023
JUDGMENT (No. 2) OF GWYN J
(Severance of regulations)
CHORUS LIMITED v MINISTER FOR THE DIGITAL ECONOMY AND COMMUNICATIONS [2023] NZHC 662 [29 March 2023]
Continued…
AND COMMERCE COMMISSION
First Intervener
SPARK NEW ZEALAND LIMITED
Second IntervenerVECTOR LIMITED
Third Intervener
Solicitors:
Chapman Tripp, Wellington Crown Law, Wellington Russell McVeagh, Auckland
Copy to:
Commerce Commission, Wellington Spark New Zealand Limited
Vector Limited
Background
[1] Chorus Limited (Chorus) is a provider of wholesale telecommunications services. Chorus brought a judicial review application to challenge the lawfulness of the Telecommunications (Regulated Fibre Services) Regulations 2021 (Regulations). The Regulations specify the terms on which Chorus must initially supply certain “declared” services, being direct fibre access services (DFAS) and unbundled fibre services. Chorus argued that the Regulations do not comply with the relevant transitional provisions in the Telecommunications Act 2001 (the Act).
[2] The first respondent is the Minister for the Digital Economy and Communications (Minister), who has responsibility for recommending the Governor- General make, by Order in Council, regulations under the relevant provisions of the Act. The Governor-General is the second respondent.
[3] I issued a judgment on Chorus’ application on 22 December 2022.1 The Judgment should be read together with this second judgment but, for ease of reference, I set out the relevant parts of the Judgment which detail the empowering provisions relevant to the Regulations:2
[52] Services may be “declared” by the Governor-General, on the recommendation of the Minister under ss 227-229.
[53]Section 227 provides:
227 Anchor services
(1)The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations declaring a fibre fixed line access service to be an anchor service.
(2)The regulations may, in relation to the service, prescribe all or any of the following:
(a)a description of the service; and
(b)any conditions; and
1 Chorus Limited v Minister for the Digital Economy and Communications [2022] NZHC 3602 [Judgment] at [247]-[249].
2 At [52]-[60].
(c)the period during which a regulated fibre service provider who is subject to price-quality regulation must provide the service; and
(d)the maximum price that a regulated fibre service provider who is subject to price-quality regulation may charge for providing the service.
(3)For the purposes of subsection (2)(a), the regulations may, without limitation other than subsection (4), describe a service with reference to any 1 or more of the following:
(a)the geographic area in which the service must be supplied:
(b)the service’s end-users:
(c)the service providers who seek access to the service:
(d)the technical specifications of the service:
(e)any other circumstances in which the service must be supplied.
(4)The Minister must not recommend that regulations be made under this section unless the Commission has, after a review under section 208, recommended that the regulations be made.
(5)Subsection (4) applies unless the Minister is recommending regulations to which either or both of the following apply:
(a)the regulations have no more than a minor effect:
(b)the regulations correct errors or make similar technical amendments.
(6)See clause 14 of Schedule 1AA for requirements relating to the first regulations made under this section.
(7)Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
[54] Sections 228 and 229 in respect of direct fibre access services and unbundled fibre services are in substantially the same terms. Only ss 227 and 228 are in issue in this proceeding. They are referred to as the empowering provisions.
[55] The Act provides for the Commission to conduct a review of an anchor service before the start of each regulatory period, including the first regulatory period.3 In the normal course, the Minister must not recommend the making of anchor services regulations until the Commission has carried out a review under s 208 and recommended that regulations be made.4 The exception to
3 Section 208.
4 Section 227(4).
that is where the Minister is recommending regulations which have no more than a minor effect and/or correct errors or make similar technical amendments.5
[56] The Act provides that the first regulations can be made even though the Commission has not carried out a review under s 208 or recommended that the regulations be made. However, there is some constraint on the Minister’s powers to do so.
[57] Schedule 1AA of the Act (transitional, savings and related matters) applies in respect of the first regulations to be made under ss 227 and 228. Clauses 14 and 15 of sch 1AA specify requirements for the first regulations to be made in respect of anchor services and direct fibre access services, respectively. These are referred to collectively as the Constraint clause.
[58] Clause 14 provides: 14
Requirements for initial regulations made under section 227 (anchor services)
(1)
This clause applies in relation to the first regulations made under section 227.
(2)
Despite section 227(4), the Minister may recommend that regulations be made under section 227 even though the Commission has not carried out a review under section 208 or recommended that the regulations be made.
(3)
However, the Minister must not recommend that regulations be made to prescribe a description of the service that is, or conditions of the service that are, materially different from the terms set out in a UFB contract.
(4)
The Minister must not recommend the making of regulations under section 227(2)(d) unless the Minister is satisfied that the regulations will prescribe a maximum price that is based on the maximum price that may be charged for providing the service under a UFB contract, with an annual CPI adjustment mechanism.
[59]
Clause
15(3) (in relation to direct fibre access services) is in identical
terms to cl 14(3).
[60] The Minister has recommended, and the Governor-General has made, anchor services regulations under s 227 and DFAS regulations under s 228. Those are the regulations that are challenged in this proceeding. No regulations have yet been made in relation to unbundled fibre services under s 229.
[4] Also relevant are those portions of the Judgment that explain the Ultra-Fast Broadband (UFB) contract:6
5 Section 227(5).
6 Judgment at [32]-[36].
[32] Telecom was selected as a participant in the UFB initiative to develop fibre-to-the-premises broadband networks. On 24 May 2011 Telecom and CFH entered into the Network Infrastructure Project Agreement, under which Telecom agreed to design, build and operate a fibre optic communications infrastructure network in certain geographic areas of New Zealand (the UFB1 NIPA).
[33] It was a condition of its participation in the UFB initiative that Telecom agreed to demerge a new entity, Chorus, to own fixed line network infrastructure previously owned by Telecom.
[34] Chorus was incorporated on 30 November 2011. All of Telecom’s rights and obligations created by the UFB1 NIPA were assumed by Chorus.
[35] In 2015 the New Zealand government decided to extend the UFB Initiative to develop fibre-to-the-premises networks connecting at least 80 per cent of New Zealand households, and commenced a further competitive tender to select participants to develop those networks (UFB2).
[36] On 26 January 2017, Chorus and CFH entered into a further Network Infrastructure Project Agreement under which Chorus agreed to design, build and operate a fibre optic communications infrastructure network in further geographic areas of New Zealand (the UFB2 NIPA).
[5] The NIPA provided that Chorus could only offer services set out in the NIPA, as amended by agreement with Crown Infrastructure Partners (CIP) [formerly CFH], the Crown entity responsible for managing the New Zealand government’s investment in the UFB initiative, from time to time. Chorus was required to offer standard terms that reflected the terms set out in the NIPA.
[6] The NIPA required Chorus to develop and offer services on the terms of a Reference Offer. The Reference Offer and the Wholesale Services Agreement (WSA) were not developed at the time of entry into NIPA, but were anticipated.
[7] The detail of the Reference Offer and the WSA are set out in the Judgment as follows:7
[40]The Reference Offer addresses, amongst other things:
(a)specification of the services Chorus will provide to RSPs, within the basic description of the essential characteristics of the service provided in the NIPA;
(b)precise specification of physical aspects of the service, such as the equipment used;
7 Judgment at [40]-[46].
(c)provisions governing the operation of the network;
(d)how orders can be made and changed;
(e)how faults are reported and remedied;
(f)service levels associated primarily with ordering and fault processes; and
(g)contractual issues dealing with variations, liability, termination and so on.
[41]The Reference Offer for an individual service is comprised of:
(a)general terms that apply to all services;
(b)Chorus UFB Services Agreement Service Level Terms, comprising service levels for four groups of services that are offered to RSPs;
(c)the Chorus UFB Services Agreement Operations Manual; and
(d)the Chorus UFB Services Agreement Service Descriptions.
[42] The Reference Offer is required to incorporate general terms known as the Wholesale Services Agreement (WSA). The Reference Offer formed the basis of Chorus’ Wholesale Service Agreements with over 100 RSPs.
[43]Wholesale Services Agreement is defined in the NIPA as:
… the standard wholesale services agreement general terms of the Company [Chorus], together with any particular terms relating to a specific service, as approved by CFH [CIP] from time to time.
[44] The terms of the WSA were further defined in schedule 6 of the UFB1 NIPA as follows:
(a)The service description. Services means the services to be provided by Chorus in accordance with Schedule 6 (Principles for Services and Pricing);
(b)Access Seeker means a person who is obtaining or has indicated to Chorus a desire to contract for, the Services;
(c)Wholesale Service Agreement means the standard wholesale services agreement general terms of Chorus, together with any particular terms relating to a specific service as approved by CFH from time to time.
[45] The WSA had to be consistent with the basic terms set out in the NIPA and were subject to CIP approval. The Reference Offer and WSA contain detailed provisions for making changes to the various documents that form the WSA. Minor changes and some technology changes can be made by Chorus on reasonable notice, but more significant changes are required to be approved by RSPs in the Change Management Forum, an industry forum comprising all RSPs, with MBIE, CIP and the Commission as observer participants. The
evidence for Chorus is that, in practice, the Telecommunications Carriers Forum Product Forum (a working group including RSPs, Chorus and the LFCs) is used for this purpose. Amendments to the Reference Offer and WSA required CIP approval, but CIP’s role was limited to confirming that amendments were consistent with the terms set out in the NIPA.
[46] In summary, the Reference Offer and WSA comprised a suite of documents, being:
(a)General Terms, which apply to all services offered by Chorus;
(b)Service Descriptions and Service Level Terms, which provide detailed technical specifications and service levels; and
(c)Operations Manuals, which provide detailed processes for ordering, provisioning, fault reporting and other operational matters.
[8] The Regulations declare and provide a description of service for three wholesale communications services (two “Anchor Services” and the “Direct Fibre Access Service” or DFAS) that Chorus is required to provide. Regulations 6 to 12 relate to Anchor Services and regs 13 to 16 relate to DFAS.
[9]As noted in the Judgment:8
[64] The Regulations prescribe service descriptions for the anchor services and the DFAS by incorporating the following documents:
(a)Chorus’ standardised wholesale service agreements (WSA) with individual wholesale customers;
(b)approximately 7,500 pages of telecommunications organisation standards referred to in the WSA; and
(c)a Commerce Commission determination made under Part 6 of the Act, prescribing points of interconnection for the purpose of establishing fibre handover points (SPOIs).
[10] Regulation 7 prescribes the description of the service by reference to the “Broadband Anchor Service Description” – that is, the Chorus WSA Service Description. The description of the services is the entire WSA Service Description including Appendices as modified by Schedule 2 of the Regulations.
8 At [64] (footnote omitted).
[11] Regulation 9 provides that a number of documents apply “to the extent that they are relevant” to the WSA Service Description:9
[67] For the purposes of reg 7, reg 9 provides that the following documents apply “to the extent that they are relevant to” the WSA Service Description:
(a)the Chorus UFB Services Agreement (General Terms) dated December 2012:
(b)the Chorus UFB Services Agreement (Operations Manual for Bitstream Services) Reference Offer dated July 2021:
(c)the Chorus UFB Services Agreement (Service Level Terms for Bitstream Services) Reference Offer dated October 2020:
(d)the notice of specified points of interconnection, published by the Commerce Commission under section 231 of the Act and dated 19 December 2019:
(e)the TCF UFB Ethernet Access Service Description, version 33, dated 11 May 2017:
(f)the technical standards listed in Part 1 of Schedule 3.
[68] The first three incorporated documents listed were and, in two cases, are elements of Chorus’ Reference Offer and WSA: the WSA General Terms (but not the most recent General Terms); the WSA Operations Manual and WSA Service Level Terms. Each document is referred to in the WSA Service Description.
[69] The fourth document referred to is the Commission SPOI public notice referred to above. That notice is not referred to in the WSA Service Description or any other of the incorporated documents.
[70] The fifth document is a Telecommunications Carrier Forum document. An earlier version of that document is referred to at cl 2.4.6 of the WSA Service Description.
[71] The final set of incorporated documents for the broadband anchor service are eight technical standards, listed in Part 1 of Schedule 3. Each technical standard is published by an international standards body. Many of them are lengthy. For example, the contents page to the first section of IEE
802.3 is itself 55 pages long and covers 636 pages of highly technical material. The overall number of pages of the incorporated documents exceeds 6,500.
[12] In the Judgment I concluded that:
(a)The Minister erred in law in interpreting the phrase “materially different” [in clause 14(3) of Schedule 1AA of the Act] and that the
9 Judgment at [67]-[71] (footnotes omitted).
Regulations include a description of the service that is, or conditions of the service that are, “materially different from the terms set out in a UFB contract”.
(b)The Minister erred in law in concluding that the Regulations were required to prescribe a complete set of terms for the Anchor Services and DFAS in order to provide a “fall-back” or “backstop” to negotiation of commercial terms for those services.
(c)The Minister wrongly interpreted the term “UFB contract” in that he concluded that documents comprising the WSA were incorporated into it; wrongly interpreted the term “materially different” to mean “inconsistent with” and did not properly direct himself to the implications of the Legislation Act 2019 which provides that the effect of incorporating the WSA and other documents by reference is to “freeze” those documents, absent amendment of the Regulations.
[13] I therefore found that the Regulations are inconsistent with the objects and intention of the empowering provisions.
Severance of unlawful portions of the Regulations
[14] Chorus had sought a declaration that the Regulations are unlawful and orders quashing the Regulations and directing the respondents to reconsider the Regulations.
[15] As I identified in the Judgment,10 it was not clear from the parties’ submissions whether and to what extent it was realistic and practical to order that the offending aspects of the Regulations be severed, or whether the Regulations as a whole should be quashed.
[16] Accordingly, I declared that the Regulations are unlawful to the extent that they incorporate terms of the WSA, Reference Offer, technical standards and the Commerce
10 At [257].
Commission’s Points of Interconnection Determination, made under s 231 of the Act.11 I directed that the Regulations remain in force pending final orders.12
[17] I also directed the parties to file submissions on whether and how those parts of the Regulations which I found to be unlawful can be severed from the Regulations.13
[18] On 1 March 2023 the applicant and the first and second respondents filed a joint memorandum in which they advised that the parties have conferred and have agreed that severance of the unlawful parts of the Regulations is practicable and appropriate. In counsel’s submission, severance will remove the effect of the invalid parts of the Regulations, while preserving in place the legislative operation, purpose and effect of the surviving provisions. Counsel for the parties have provided a red- lined version of the Regulations showing the effect of the proposed orders (attached to this judgement as Schedule A).
[19] The proposed orders would remove all incorporation of the terms of the WSA, Reference Offer, Technical Standards and the Commerce Commission’s Points of Interconnection Determination made under s 231 of the Act.
[20] The parties note that, if the proposed orders are adopted, the effect of the surviving provisions of the Regulations will be as follows:
(a)Chorus will be required to continue to offer the following services that are declared to be anchor services, being:
(i)a broadband Internet access service with a minimum download speed of 100 megabits per second and a minimum upload speed of 20 megabits per second;
(ii)a voice-only communication service provided using an Ultra- Fast Broadband Internet connection; and
11 At [259(a)].
12 At [259(c)].
13 At [259(b)].
(b) Chorus will be required to continue to offer the large-user direct fibre access service, being a dark fibre service that enables access to, and interconnection with, the LFC fibre network, which is declared to be the direct fibre access service; and
(c)the maximum prices for each of those services will remain prescribed by the Regulations, subject to an annual CPI adjustment.
[21] As recorded in the judgment,14 the relevant test for severance of invalid parts of an instrument is whether, after severance, the remaining provisions are textually coherent and the substance of what remains is essentially unchanged in its legislative purpose, operation and effect, from what was originally enacted.
[22] As the authors of Judicial Review: A New Zealand Perspective note,15 Lord Bridge in Director of Public Prosecutions v Hutchinson envisaged that the substantial severability test may involve textual modification to make the remaining enactment coherent and grammatical. Thus, Hutchinson rejects both the preceding blue pencil test as the sole test,16 and the test of whether the enactment would still have been made without the severed portion.17
[23]In New Zealand, the Court of Appeal in R v Chapman,18 decided that
Hutchinson should be applied in New Zealand.
[24] I accept the submission from the parties that the Hutchinson test is satisfied by the proposed orders:
(a)The Regulations are textually severable. The surviving provisions can operate independently of the invalid provisions and can be interpreted
14 Judgment at [257] citing Transport Ministry v Alexander [1978] 1 NZLR 306 (CA), at 311-312; R v Chapman CA 241/02, 4 November 2002 at [26], adopting Director of Public Prosecutions v Hutchinson [1990] 2 AC 783.
15 Graham Taylor (ed) Judicial Review A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at 5.43.
16 See R v Transport Secretary, ex parte Greater London Council [1986] QB 556, [1985] 3 All ER 300 at 578-579.
17 Dunkley v Evans [1981] 1 WLR 1522, [1981] 3 All ER 285 (QBD); Olsen v City of Camberwell
[1926] VLR 58 (FCA).
18 R v Chapman CA241/02, 4 November 2002 at [26].
and understood standing alone. No terms used in the surviving provisions refer to the invalid provisions. The meaning and effect of the surviving provisions is unchanged from what was originally promulgated.
(b)The surviving provisions of the Regulations fulfil the statutory purpose of the Anchor Service Regulations set out in s 208(7) of the Act, as interpreted by the Judgment,19 namely that basic services are to be offered by Chorus as ‘anchor services’ with prices initially pegged at historic levels as a safeguard against price shocks in the transition to the new regime.20 The essential features of the Regulations will remain in place.
(c)The surviving provisions in the Regulations will continue to fall within the scope of the initial Cabinet decisions regarding the content of the first Regulations and it is apparent that the surviving provisions of the Regulations would have been promulgated even without the invalid provisions.21
(d)The substance of the surviving provisions in the Regulations will continue to give effect to Cabinet’s policy decision, taking into account the Court’s interpretation of the words “UFB contract” in the Constraint Clause. The Regulations are therefore essentially unchanged in their legislative purpose by the removal of the invalid provisions.
Outcome
[25]On that basis I make the following order.
19 Judgment at [191]-[200].
20 Judgment at [196].
21 Potts v Invercargill City Council [1985] 1 NZLR 609 (CA) at 620 cited by Royal Forest and Bird Protection Society of New Zealand Inc & Anor v New Zealand Conservation Authority & Ors [2021] NZHC 1194 at [108].
[26] The following provisions of the Telecommunications (Regulated Fibre Services) Regulations 2021 are declared to be invalid and are severed from the instrument:
(a)regulation 3, the definition of “Broadband Anchor Service Description”, “Large-user DFAS Service Description” and “Voice Anchor Service Description”;
(b)regulation 6(a), the text following the term regulation “s 7 and”
(c)regulation 6(b), the text following the term regulation “s 10 and”
(d)regulation 7;
(e)regulations 9 and 10;
(f)regulation 12;
(g)regulation 13(1), the text following the term regulation “s 14 and”;
(h)regulation 14;
(i)regulation 16;
(j)Schedule 2; and
(k)Schedule 3.
Gwyn J
SCHEDULE A 2021/259
Telecommunications (Regulated Fibre Services) Regulations 2021
Patsy Reddy, Governor -General
OrderioCouocd
At Wellington this t3 th day of September 2021 Present:
The Right Hon Jaciuda Ai dem piesiding in Council
These regulations are made under sections 226, 227, and 228 of the Telecommuni- cations Act 2001—
(a)on the advice and with the consent of the Executive Council; and
(b)on the recommendation of the Minister for the Digital Economy and Commu- nications given in accoi dance with sections 226, 227, and 228 and clauses 13 to 15 of Schedule tAA of that Act.
Contents Page
1 Title 2 Commencement 2 Interpretation 2 Transitional, savings, and related provisions 5 5 Overview 5
Auchor services
Anchor set
3
7Broadband anchoi service: description of service 3
8Broadband anchoi service: maximum price
9Additioual document iefereuces for broadbaud auchor service
10Voice anchoi service: description of service
11Voice anchor service: maximum price 5
12Additional document references for voice anchor service 6
Direct fibre access services
13Direct fibre access services 6
14Large-user direct fibre access service: description of service 6
15Large-user direct fibre access service: maximum price 7
16Additional document references for large-user direct fibre access 7
service
Amendment to Telecommunications (Regulated Fibre Service Providers 1 Regulations 2019
17 Principal regulations 7 18 New regulation 4A inserted (Overview) 8 4A Overview 8 Schedule 1 9 Transitional, savings, and related provisions Schedule 2
Modifications to documents incorporated by reference
10 Schedule 3
Technical standards cited in service descriptions
20 Regulations
Title
These regulations are the Telecommunications (Regulated Fibre Services) Regulations 2021. 2 Commencement
These regulations come into force on 31 December 2021. Interpretation
In these regulations, unless the context otherwise requires,— Act means the Telecommunications Act 2001 annual CPI adjustment has the meaning given in section 5 of the Act broadband anchor service has the meaning set out in regulation 6(a)
2
large-user direct fibre access service has the meaning set out in regulation 13(1)
voice anchor service has the meaning set out in regulation 6(b)
4Transitional, savings, and related provisions
The transitional, savings, and related provisions (if any) set out in Schedule 1 have effect according to their terms.
5Overview
(1)These regulations declare certain fibre fixed line access services to be anchor services or direct fibre access services, with the result that a regulated fibre ser- vice provider who is subject to price-quality regulation must provide those ser- vices under the Act (see sections 198 and 199).
(2)See also the Telecommunications (Regulated Fibre Service Providers) Regula- tions 2019, which prescribe the regulated fibre service providers who are sub- ject to price-quality regulation under the Act.
(3)This regulation is only a guide to the general scheme and effect of these regula- tions.
6Anchor services
Anchor services
For the purposes of section 227(1) of the Act, the following services are declared to be anchor services:
(a)a broadband Internet access service with a minimum download speed of 100 megabits per second and a minimum upload speed of 20 megabits per second, provided in accordance with regulations-7-en-d 8 (the broad- band anchor service):
(b)a voice-only communication service provided using an ultra-fast broad- band Internet connection, provided in accordance with regulations mt8 11 (the voice anchor service).
3
8 Broadband anchor service: maximum price
(1)This regulation applies for the purposes of section 227(2)(d) of the Act.
(2)The maximum price that a regulated fibre service provider who is subject to price-quality regulation may charge for the broadband anchor service, where the service is provided in respect of premises that are residential premises, is
$47.87 per month (subject to subclause (4)).
(3)The maximum price applies in respect of each connection provided.
(4)The maximum price increases or decreases (as appropriate) by an annual CPI adjustment on 1 July each year (starting on 1 July 2022).
(5)In this regulation,—
premises has the meaning given in section 2(1) of the Residential Tenancies Act 1986
residential premises—
(a)means premises that are used or intended for occupation by a person principally as a place of residence; but
(b)does not include premises that constitute any part of premises described in section 5(1)(c) to (k) of the Residential Tenancies Act 1986 (which refers to places such as jails, hospitals, hostels, hotels, and other places providing temporary accommodation).
Voice anchor service: maximum price
(1)This regulation applies for the purposes of section 227(2)(d) of the Act.
(2)The maximum price that a regulated fibre service provider who is subject to price-quality regulation may charge for the voice anchor service is $26.02 per month (subject to subclause (4)).
(3)The maximum price applies in respect of each connection provided.
(4)The maximum price increases or decreases (as appropriate) by an annual CPI adjustment on 1 July each year (starting on 1 July 2022).
r 12
Regulations 2021 2021/259
Direct fibre access services
13 Direct fibre access services
(1)For the purposes of section 228(1) of the Act, a dark fibre service that enables access to, and interconnection with, the LFC fibre network, and that is provi- ded in accordance with regulations 15 (the large-user direct fibre access service), is declared to be a direct fibre access service.
(2)In this regulation, LFC fibre network has the same meaning as in section 156AB of the Act.
6
2021/259
Regulations 2021
r 17
15 Large-user direct fibre access service: maximum price
(1)This regulation applies for the purposes of section 228(2)(d) of the Act.
(2)The maximum price that a regulated fibre service provider who is subject to price-quality regulation may charge for the large-user direct fibre access ser- vice is $369.41 per month (subject to subclause (4)).
(3)The maximum price applies in respect of each connection provided.
(4)The maximum price increases or decreases (as appropriate) by an annual CPI adjustment on 1 July each year (starting on 1 July 2022).
Amendment to Telecommunications tRegulated Fibre Service Providers) Regulations 2019
17Principal regulations
Regulation 18 amends the Telecommunications (Regulated Fibre Service Pro- viders) Regulations 2019.
r 18
Regulations 2021 2021/259
18New regulation 4A inserted (Overview)
After regulation 4, insert:
4A Overview
(1)These regulations prescribe persons who provide fibre fixed line access ser- vices as being subject to information disclosure regulation and price-quality regulation under the Act.
(2)See also the Telecommunications (Regulated Fibre Services) Regulations 2021, which declare certain fibre fixed line access services to be anchor services or direct fibre access services, with the result that a regulated fibre service pro- vider who is subject to price-quality regulation must provide those services under the Act (see sections 198 and 199).
(3)This regulation is only a guide to the general scheme and effect of these regula- tions.
8
2021/259
Regulations 2021
Schedule 1
Transitional, savings, and related provisions
Schedule 1
r4
There are no transitional, savings, or related provisions relating to these regulations as made.
Schedule 2
10
Regulations 2021 2021/259
11
12
13
14
15
16
17
19
20
Michael Webster, Clerk of the Executive Council.
Explanatory note
This note is not part of the regulations, but is intended to indicate their general ejfect.
These regulations, which come into force on 31 December 2021, declare certain fibre fixed line access services to be anchor services or direct fibre access services. A regu- lated fibre service provider who is subject to price-quality regulation must provide those services under the Telecommunications Act 2001 (the Act) (see sections 198 and 199).
The Telecommunications (Regulated Fibre Service Providers) Regulations 2019 pre- scribe the regulated fibre service providers who are subject to price-quality regulation under the Act.
The anchor services are as follows:
•a broadband Internet access service with a minimum download speed of 100 megabits per second and a minimum upload speed of 20 megabits per second:
•a voice-only communication service provided using an ultra-fast broadband Internet connection.
The direct fibre access service is a dark fibre service that enables access to, and inter- connection with, the LFC fibre network (see section 156AB of the Act).
These regulations prescribe for each service a description of the service and the maxi- mum price that a regulated fibre service provider who is subject to price-quality regu- lation may charge for providing the service.
21
Issued under the authority of the Legislation Act 2012.
Date of notification in Gazette: 16 September 2021.
These regulations are administered by the Ministry of Business, Innovation, and Employment.
22
0
2
1