Portability deed attacked

By Richard Braddell


WELLINGTON - The Commerce Commission could find itself in deep constitutional waters if it authorises a number administration deed proposed by Telecom, Vodafone and three other carriers, constitutional law expert Sir Geoffrey Palmer said yesterday.

Sir Geoffrey was addressing the commission on behalf of Clear Communications, which is strenuously opposed to the deed.

It says the deed's structure would force it to become a signatory against its will or be unable to obtain additional telephone numbers.

Clear and a number of other carriers have rejected the deed even though it would bring independent administration of the telephone numbering system, because they object to provisions relating to the introduction of number portability that they believe would delay rather than hasten its arrival.

Sir Geoffrey said the deed was constitutionally unusual and highly objectionable because a private instrument would be used for public law regulatory purposes.

The deed raised rule of law issues since some signatories would be coerced into joining a private arrangement shrouded in secrecy provisions and with strong elements of arbitrariness, he said.

While the deed's proponents are arguing that it is the fastest way to achieve its objectives, Sir Geoffrey said modern administrative law cases indicated that judicial review would be much more strict and rigorous than if the deed was to be instituted under regulation, in which case a range of public law provisions were available to govern it.

Earlier, Clear's counsel, Charles Sweeney, attacked the economic efficiency argument put up by Telecom that says that long-term portability should not be introduced if it there is an overall cost to the economy.

Referring to a guesstimate that it could cost as much as $100 million for Telecom to upgrade its network to enable long-term portability, Mr Sweeney said there was a question of whether the upgrade costs were truly related to number portability, or whether they were simply costs that Telecom would face anyway in maintaining a competitive network.

"If long-term portability is to be denied consumers and the benefits of competition foreclosed because an obsolete network requires a large investment, that decision should be made transparently in public with all the stakeholders, including consumers, involved," he said.