The Telecommunications (Regulated Fibre Services) Regulations 2021 were initially made on 13 September 2021 and took effect from 1 January 2022. The Regulations specify anchor broadband and voice services and one direct fibre access service (DFAS) that Chorus must provide to retail service providers (RSPs).
The fibre Regulations are intended to act as an ‘anchor’ on the price and quality of other fibre services that Chorus offers to RSPs.
Telecommunications (Regulated Fibre Services) Regulations 2021(external link) — New Zealand Legislation [Note: the Legislation website will be updated in due course to reflect revisions to the Regulations following High Court proceedings – see below relevant section for more information]
These Regulations are also relevant to the Commerce Commission’s fibre fixed line access services Price Quality (PQ) and Information Disclosure (ID) decisions.
Fibre price-quality path and information disclosure(external link) — Commerce Commission
The Regulations were the subject of High Court proceedings under the Judicial Review Procedure Act 2016 in 2021-2022. In December 2022, the High Court found certain aspects of the Regulations relating to material incorporated by reference to be unlawful. This has resulted in an order to sever the offending aspects of the Regulations [Chorus Ltd v Minister for the Digital Economy and Communications [2023] NZHC 662 refers].
The Regulations in their severed form retain the high-level service description and maximum prices for the anchor broadband and voice and DFAS services that Chorus is required to offer. The following provisions of the initial Regulations have been removed:
(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.
The High Court judgment and final orders will be published on the Ministry of Justice website in due course.
Judicial Decisions Online(external link) — New Zealand Ministry of Justice
The aspects of the service descriptions that were contained in the material incorporated by reference into the Regulations have now been removed from the Regulations. However, similar obligations still exist in commercial agreements between Chorus and retail service providers.
Section 208 of the Telecommunications Act 2001 provides for the Commerce Commission to review the regulation of the anchor services ahead of future regulatory periods and make recommendations to the Minister for any regulatory changes it determines necessary. Section 209 similarly provides for the Commerce Commission to review the regulation of DFAS from 2025 and at 5 year (minimum) intervals thereafter.
Prior to the High Court proceedings, the Regulations incorporated by reference relevant content from existing wholesale service agreements (WSAs) or reference offers. The WSAs set out detailed terms and conditions related to the provision of the regulated services as they were offered under the Ultra-fast Broadband contractual regime prior to 2022.
The Ministry of Business, Innovation & Employment (MBIE) released a discussion document and consulted on an exposure draft of the initial Regulations in May 2021.
MBIE received 7 submissions in total. This included: 4 from retail service providers (Spark, Vodafone, 2degrees and Vector); 2 from local fibre companies (Chorus and Enable/UltraFast Fibre); and 1 from the Interim Māori Spectrum Commission. These are available at the links provided below.
Annex A – Chorus UFB Services Agreement General Terms [PDF, 581 KB]
Annex B – Chorus Alternative Draft Regulations [PDF, 143 KB]
Draft regulations for the declaration of anchor services and DFAS – Vector [PDF, 102 KB]
Cabinet paper seeks to submit the Telecommunications (Regulated Fibre Services) Regulations 2021 made under sections 227 and 228 of the Telecommunications Act 2001.
PDF, 303KB, 30 pages
Cabinet agreed to the submission of the Telecommunications (Regulated Fibre Services) Regulations 2021 made under sections 227 and 228 of the Telecommunications Act 2001.
PDF, 145KB, 3 pages
© Ministry of Business, Innovation and Employment
https://www.mbie.govt.nz/science-and-technology/it-communications-and-broadband/our-role-in-the-ict-sector/fibre-regulations/
Please note: This content will change over time and can go out of date.
Draft for Consultation: Telecommunications (Regulated Fibre Services) Regulations 2021 [PDF 452KB]