The Commerce Commission has obtained a significant
victory against Telecom in the long-running "data
tails" saga. The Court of Appeal announced its decision on
Telecom's liability appeal on 27 June 2012, upholding the High
Court's decision that Telecom had taken advantage of its market
power, which is a breach of section 36 of the Commerce Act.
The Court of Appeal decision provides guidance on section 36 of
the Commerce Act and will be an important benchmark for future
cases. As we noted in our
FYI in 2009, the decision is significant because it confirms
the importance of the counterfactual test to assess a breach of
section 36, and for providing a useful explanation of the framework
and application of competitive pricing principles using an economic
model to assess whether a firm would have charged the same price in
a competitive market known as the efficient component pricing rule
What was the case about?
Between 1999 and 2004, Telecom charged other telecommunication
services providers (TSPs) (its competitors) high
prices for access to data tails. Data tails are the links between a
customer's premises and another TSP's network. TSPs have to
purchase data tails from Telecom if their networks do not extend to
customer premises enabling them to supply data services to those
What did the High Court decide?
On 9 October 2009, the High Court found that Telecom had
breached section 36 of the Commerce Act 1986. It had used its
market power (from 18 March 2001 until late 2004) to deter
potential, or existing wholesale competitors, for backbone
transmission services and for end-to-end high speed data
transmission services in the retail market.
The Court found that Telecom's pricing in relation to the
"two tail" scenario (where the TSP does not have any
tails of its own) was higher than it would have been in a
competitive market, because it was higher than the ECPR.
Telecom was ordered to pay a pecuniary penalty of $12 million in
What did the Court of Appeal decide?
Telecom appealed both the finding that they had breached s36,
and the amount of the pecuniary penalty. The Court of Appeal has
not yet released its judgment in relation to penalty.
In relation to liability, the Court of Appeal unanimously upheld
the High Court finding that Telecom had breached section 36 of the
Commerce Act. The Court of Appeal went further than the High Court
and found that Telecom's pricing in the "one tail"
scenario (where a TSP provides at least one of its own tails) also
breached the ECPR. The Court of Appeal also extended the
declaration granted to the Commission to cover an earlier
timeframe. The High Court's declaration was amended to
The plaintiff is granted a declaration that Telecom used and/or
took advantage of its dominant position/market power from 1
February 1999 until late 2004 (when Telecom introduced a UPC
service) for the purposes of deterring potential or existing
competitors in the wholesale market for backbone transmission
services and the retail market for end-to-end high speed data
There are three elements that must be proved in a section 36
case. One is market power, the second is the taking advantage of
that market power, and the third is anti-competitive purpose.
The first element was not an issue in this case, as Telecom
accepted it had a substantial degree of market power.
In relation to the second element, the Court of Appeal confirmed
the use of the counter-factual test in order to assess the element
of "taking advantage" (ie would a firm without market
power have acted in the same way as Telecom?). The Court of Appeal
affirmed the High Court decision that a firm without market power
would not price above the ECPR.
In relation to the third element, the Court of Appeal held that
the finding of pricing above the ECPR was sufficient to support the
inference that Telecom had an anti-competitive purpose. The direct
evidence of events occurring prior to the limitation period could
be used to support a finding of continuing purpose.
What are the implications of this decision?
This case is a significant and resounding victory for the
Commerce Commission. However, it does not change the way in which
section 36 cases will be analysed. The case confirms the existing
case law and the tests that should be applied to assess whether
there has been a breach of section 36.
It will be interesting to see the decision on the penalty
appeal. The $12 million penalty ordered by the High Court was the
highest ordered against a single company under the Commerce Act to
If you would like a case summary or any more information, please
contact one of our competition specialists.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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