Introduction
1. The Telecommunications Act 2001 (Act) provides a range of mechanisms to amend a determination[1], including a:
- pricing review determination under section 51;
- clarification under section 58; and
- reconsideration under section 59.
2. The objective of these Guidelines is to provide some guidance for Access Providers and Access Seekers on the clarifications mechanism under section 58 of the Act. These Guidelines include:
- a diagram showing the likely key steps that the Commission may follow during the clarifications process (Appendix A); and
- a template for an application for clarification (Appendix B).
These Guidelines provide generic information and should not be relied on as binding or as legal advice.
Clarification of determinations
3. Section 58 of the Act allows the Commission to amend a determination for the purpose of making a clarification if[2]:
- at any time the Commission, on its own initiative or on the application of any person, considers that a determination requires clarification; and
- no appeal is pending in respect of the determination.
4. The Commission is not obliged to commence a clarification at any time but will assess each application for clarification and apply its discretion on a case by case basis.
5. In some circumstances, the Commission may consider a clarification is unnecessary and simply indicate its views to the applicant of how a clause should be interpreted.
Commencing a clarification
6. As noted in paragraph 3 above, a clarification is either initiated by the Commission (which may occur in response to its own monitoring, research and analysis), or a party may apply for a clarification. In both cases, only the Commission may decide if a determination requires clarification.
7. Parties are encouraged to discuss with the Commission whether issues of concern could be dealt with by a clarification under section 58 or another statutory power (such as, section 30R or section 59 of the Act).
8. If a party wishes to apply for a clarification, they should provide sufficient information to enable the Commission to make a decision on whether a clarification is appropriate. The applicant is encouraged to submit joint views on non-price matters, whenever possible. The applicant must at a minimum include all of the information specified in the template for a clarification application (Appendix B).
9. Where there are objections to an application for clarification, or there are matters that remain unclear, the Commission may request further information from the applicant or other companies before deciding how to address the request under the Act.
10. The Commission will consider the substance of each application on a case by case basis. It may decide after consideration that the application may be better suited to guidance on interpretation or requires consideration under another statutory power. For example, if the application requests significant changes to a standard terms determination, the Commission may decide to initiate a review under section 30R of the Act rather than invoke section 58.
What can be done via a clarification?
11. The term "clarification" is not defined and is broad in scope. Any clarification made must best give, or be likely to best give, effect to the purpose set out in section 18. The Commission considers that the clarification process can be used to remove errors, or make a determination clearer, or less complex, ambiguous or obscure.
12. A clarification is not limited to addressing minor slips or errors made in the determination. On a case by case basis, substantive amendments can be made to a determination, where the amendment is, as per paragraph 11 above, to remove errors, or make a determination clearer, or less complex, ambiguous or obscure.
13. Examples of amendments made to determinations under section 58 are listed below in order to give applicants a guide as to what can be achieved with a clarification under section 58:
- Decision 643 where new forecasting rules were included in the Unbundled Copper Local Loop Standard Terms Determination;
- Decision 654 which made amendments to the UBA Backhaul Standard Terms Determination to correct inconsistencies as well as ensure definitions and diagrams reflected where handover of the UBA Backhaul Service will occur in Telecom's network;
- Decision 679 which changed the rejection reasons in the UBA Operations Manual, and clarified the application of the modem installation service and connection and wiring charges;
- Decision 681 which made amendments to the UCLL Backhaul Service Description to make the appendices of the Schedules to the General Terms consistent in terms of the required technical interface specifications;
- Decision 682 where another exception was introduced to the cabinetisation notice provisions as well as an amendment to clarify who must pay for the costs of transferring customers moving from the exchange to the cabinet;
- Decision 688 which clarified the circumstances when an early termination charge is payable in the UBA Standard Terms Determination and made amendments to deal with pro-rating and introduced a quarterly adjustment process for the early termination charge; and
- Decision 689 which introduced batch processing of service and quarterly adjustments for the UBA Service during a quarter in order to streamline the process for implementing price adjustments. This Decision also amended the timings within which price adjustments are activated in Telecom's billing systems, to reflect current practice.
What can't be done via a clarification?
14. Section 58 may not be invoked to address more significant and serious matters that are more suited to a review under section 30R (e.g. a review of the application of the competition conditions) or a reconsideration under section 59. A clarification cannot achieve all of the outcomes contemplated by other provisions, such as:
- making changes that the Commission considers are significant changes to price terms or non-price terms;
- revoking and replacing a determination; or
- inserting an entirely new pricing schedule or a new operations manual in a standard terms determination.[3]
15. The reconsideration power under section 59 applies where the Commission (on the application of a party to a determination) revokes or amends the determination, or revokes a determination and makes a further determination in substitution for it, where there has been a material change of circumstances since the date on which a determination was made or last reconsidered[4] or where the determination was made on the basis of information that was false or misleading in a material particular.[5]
16. The application of the review power under section 30R is discussed on the Review of Standard Terms Determinations page.
Manner and timeframe of clarification
17. The Commission is required to give public notice of a clarification to the determination. In practice, the Commission will inform the applicant of the decision made on the application, publish the decision on the Commission's website, and publish a notice of the matter in the Gazette.
18. The Commission is not required to consult on a proposed clarification, nor to issue a draft clarification. The Commission may decide where a clarification is non-contentious, is agreed by all parties materially affected by the clarification, or approved by the Telecommunications Carriers Forum, that it can be processed more quickly. In those circumstances, the Commission may decide consultation is not required. However, such circumstances are likely to be rare, and the Commission will decide whether consultation is required in any such case on a case by case basis.
19. It is the Commission's intention to consult with, and obtain views from, the industry whenever possible and appropriate. Any consultation undertaken by the Commission will be done in a manner and within a timeframe, as the Commission thinks fit. Any consultation carried out will not be as extensive as other consultation processes under the Act, such as those undertaken for standard terms or pricing review determinations.
[1] Other statutory mechanisms exist to amend standard terms determination: (a) a review under section 30R of the Act; and (b) a residual terms determination under section 30ZB.
[2] Section 58 was amended in December 2006 to remove subsection (1)(b) which had required the Commission to assess before amending the determination "if the clarification is either not material to any person affected by the determination or is agreed to by all those persons".
[3] Amendments that could be made by way of a clarification, may also form part any amendment by way of a section 30R inquiry or section 59.
[4] Section 59(1)(a) of the Telecommunications Act 2001.
[5] Section 59(1)(c) of the Telecommunications Act 2001.
