Paul Brislen: Time to see if act is working

COMMENT

Minister of Communications Paul Swain says it's time for a review of the Telecommunications Act and you can all but hear the sighs of relief around the industry.

The act itself isn't that old. It was drafted in 2000 and implemented in 2001. However it did not really get tested until 2002 when the telecommunications commissioner's office was set up. But for all that it's definitely time to have another look to make sure it's working.

This isn't a review of the decisions made by the commission, and nor should it be. For better or worse the commissioner's office must be kept separate from the Government.

To relitigate the decisions made by the commissioner's office would be wrong and Swain knows that. He knew that when he drafted the law in the first place and that's why the minister is only able to accept or reject advice given by the commissioner - he is not at liberty to take the advice and implement his own strategy.

Instead, Swain wants to look at the processes put in place, to determine whether they could be improved. With only a handful of big issues left to be resolved it's probably a moot point at this stage but it will set the scene for deliberations to come.

As commissioner Douglas Webb has said, the decisions he has made aren't cast in stone. This industry is too dynamic, too prone to revolution to make any decision a permanent one.

Interconnection, for example, will only survive in its current form while the technology underpinning the market stays as it is today.

Seeing as how Telecom has already said it will build an all-IP network in the next few years, interconnection will rise again like a bad smell to permeate the industry by the end of the decade.

So what does need fixing? Speed is obviously an issue. The act quite wisely says any legal challenge to a decision can only argue the legal issues, not the decision itself, and so we're already on the right track.

But having the commissioner's office set up as part of the Commerce Commission has introduced a certain air of timelessness that seems to permeate a number of the Commerce Commission's machinations. Decisions are made at a frustratingly slow pace and legal action, if it's required, is practically glacial.

Telecom was taken to court by the commission over a door-to-door sales practice that it discontinued in 2001. The case was finalised, barring appeals of course, just last month.

The commission has brought another case against Telecom for abusing its position of power over data tails while at the same time accepting Telecom's promise of a new data tail wholesale market.

The case is still pending but Telecom's new wholesale market is being introduced even as we speak. Surely there's a timing issue there to be sorted out.

More importantly, however, is the issue of the Telecommunications Share Obligation and the requirement that telcos be forced to pay Telecom a share of the costs of maintaining non-profitable customers.

Putting aside for the moment the question of whether Telecom was sold at a discount to take into account that exact cost, the Government has found itself demanding two completely opposing views from the industry.

On the one hand it wants competition between networks rather than on Telecom's network, and so we got the decision not to unbundle Telecom's network. But on the other hand, those that do build their own networks and take customers away from Telecom are sent a bill for their troubles. The minister has acknowledged that this is not what was intended so I would hope that would be high on the list of patches to be applied.

For the residential market, however, perhaps the most important issue for the review will be whether to introduce a telecommunications ombudsman's office. Swain told me he originally shied away from adding in yet more officialdom but is open to the suggestion. Given the number of complaints I hear about each month, ranging from individuals being sent huge phone bills after installing trojan diallers or worse, simply from using their broadband connections, I think it's high time an official was appointed to look into such complaints. This isn't just good for the consumers, it's good for the telcos as well. It protects them from the accusation of being unfair and that increases consumer confidence in the industry.

Swain has said he wants to hear more about fixing the complaints process and if that's all that comes out of the process then it will be time well spent.

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