COMMERCE COMMISSION v KORDIA GROUP LIMITED [2021] NZHC 2777

COMMERCE COMMISSION v KORDIA GROUP LIMITED [2021] NZHC 2777

The Court held: (1) Yes — a terrestrial or satellite broadcasting transmission network is a PTN where the public avails itself of the conveyed signal (receipt by end-user of the broadcast constitutes use of the network for the purposes of telecommunication even without a return channel); (2) No — an overseas satellite operator whose only involvement occurs on the satellite outside New Zealand does not, by that alone, provide a telecommunications service in New Zealand (jurisdiction requires a sufficient NZ nexus such as NZ-based assets or services); (3) Yes — revenue received by a supplier of telecommunications services to a broadcaster for the purpose of enabling a free-to-air...

Citation
[2021] NZHC 2777
Parties
Applicant: Commerce Commission; First Respondent: Kordia Group Limited; Second Respondent: Optus Satellite Pty Limited; Third Respondent: Sky Network Television Limited; Fourth Respondent: Television New Zealand Limited; Intervenor: Chorus New Zealand Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 October 2021
Procedural Posture
Case Stated Under S 100 a Commerce Act 1986 (telecommunications Act Interpretation) / High Court Judgment on Stated Questions (15 October 2021)
Outcome
Court answers stated questions: Question 1 Yes; Question 2 No; Question 3 Yes.
Legal Topics
Telecommunications Development Levy, Public Telecommunications Network Definition, Extraterritorial Jurisdiction, Broadcasting Exclusion S85 a, Liability Allocation
Telecommunications Law Broadcasting Law Administrative Law Statutory Interpretation Public Law Telecommunications Development Levy Public Telecommunications Network Definition Extraterritorial Jurisdiction +2 more

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Parties

Commerce Commission

Applicant

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

Procedural Posture

Case Stated Under S 100 a Commerce Act 1986 (telecommunications Act Interpretation) / High Court Judgment on Stated Questions (15 October 2021)

Legal Issues

  1. 1 Whether a network that allows the public only to receive but not send telecommunications is a public telecommunications network (PTN)
  2. 2 Whether an overseas satellite operator transmitting into New Zealand provides a telecommunications service in New Zealand
  3. 3 Whether revenue earned by a provider of telecommunications services to a free-to-air broadcaster is excluded from qualified revenue under s85A(1)(a)

Ratio Decidendi

The Court held: (1) Yes — a terrestrial or satellite broadcasting transmission network is a PTN where the public avails itself of the conveyed signal (receipt by end-user of the broadcast constitutes use of the network for the purposes of telecommunication even without a return channel); (2) No — an overseas satellite operator whose only involvement occurs on the satellite outside New Zealand does not, by that alone, provide a telecommunications service in New Zealand (jurisdiction requires a sufficient NZ nexus such as NZ-based assets or services); (3) Yes — revenue received by a supplier of telecommunications services to a broadcaster for the purpose of enabling a free-to-air...

Court Disposition

Court answers stated questions: Question 1 Yes; Question 2 No; Question 3 Yes.

Orders

  • Court answers the three stated questions as follows: Q1 Yes; Q2 No; Q3 Yes
  • No further orders