Commerce Commission v Kordia Group Limited

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2020-485-748

[2021] NZHC 2777

UNDER

Section 100A of the Commerce Act 1986

IN THE MATTER OF

a case stated by the Commerce Commission relating to the application of the

Telecommunications Development Levy under Part 3 of the Telecommunications Act 2001

BETWEEN

COMMERCE COMMISSION

Applicant

AND

KORDIA GROUP LIMITED

First Respondent

OPTUS SATELLITE PTY LIMITED
Second Respondent

SKY NETWORK TELEVISION LIMITED
Third Respondent

TELEVISION NEW ZEALAND LIMITED
Fourth Respondent

CHORUS NEW ZEALAND LIMITED

Intervenor

Hearing:

12 April 2021 (further submissions received 22 April 2021)

Counsel:

D J Cooper and D A K Blacktop for Applicant

N C Crang and A L Sherriff for First Respondent D A Campbell for Second Respondent

L A O’Gorman for Third Respondent R H Patterson for Fourth Respondent

T D Smith and S Koo for Chorus New Zealand Limited (Intervenor)

Judgment:

15 October 2021

COMMERCE COMMISSION v KORDIA GROUP LIMITED [2021] NZHC 2777 [15 October 2021]

JUDGMENT OF MALLON J

Table of contents

Introduction  [1]

Preliminary matters  [6]

The Commission’s process  [6]

The case stated procedure  [9]

The Telecommunications Act  [13]

Background  [13]

Broadcasting amendments  [20]

The TDL regime  [30]

Background facts  [42]

Broadcasting as a telecommunication  [53]

Question one  [57]

Question and overview  [57]

Submissions  [60]

Analysis  [71]

Question two  [88]

Question and overview  [88]

Submissions  [91]

Analysis  [99]

Question three  [109]

Question and overview  [109]

Submissions  [113]

Analysis  [124]

Introduction

[1]    The Telecommunications Act 2001 regulates the supply of telecommunications services. As part of this regulation, a Telecommunications Development Levy (TDL) regime is established under the Act. The TDL is a levy that is collected from certain telecommunications industry participants. The levy can be used to fund rural telecommunications infrastructure, upgrades to the emergency calling system and other telecommunication-related services that would not otherwise be supplied at an affordable price.

[2]    The Commerce Commission is responsible for administering this regime. It has brought this case stated proceeding arising from amendments made to the Act by the Telecommunications (New Regulatory Framework) Amendment Act 2018.

Amongst other things, these amendments made changes that meant broadcasting services were subject to the Act and therefore potentially subject to the TDL regime. The Commission has posed three questions for the Court to assist it with its statutory role in assessing which services that were previously excluded from the regime are now within it.

[3]Those questions are:

1.If the public:

(a)can receive a telecommunication (as defined in the Telecommunications Act) from a network; but

(b)cannot send a telecommunication (as defined in the Telecommunications Act) through that network,

is that network “used, or intended to be used, in whole or in part by the public for the purpose of telecommunication” as those words are used in the definition of a “public telecommunications network” (or PTN) in the Telecommunications Act?

2.Is the operator of a satellite:

(a)positioned outside New Zealand; but

(b)transmitting any sign, signal, impulse, writing, image, sound, instruction, information, or intelligence…