Summary

  • New Zealand's Commerce Commission has recommended removing mobile co-location from the Telecommunications Act 2001. The rule once let one mobile operator place equipment on another's tower. The operators sold their passive tower assets in 2023, and the new specialist owners fall outside the rule's definition of an access provider.
  • Sharing continues by contract. The Commission found no systemic access barrier; a technology-users group warns that a future entrant could still face incumbent-favouring terms. The Minister holds the decision on removal, while any new rule for tower companies would require a separate investigation.

The letter arrived after the owners moved

Imagine a regulator posting an access order to a tower company. The envelope comes back: the law addresses a mobile network operator, and this company owns towers but operates no mobile network. New Zealand has reached that peculiar stage without needing an imaginary lawsuit. Its Commerce Commission says the regulated mobile co-location service no longer applies to anyone. The towers, meanwhile, are busy.

The Commission's 27 October announcement recommends that the Minister remove the service from Schedule 1 of the Telecommunications Act 2001. It is a recommendation, with the rule still on the books. The Minister can accept it, reject it or ask for clarification. The distinction matters: a published rule can look like a safety net long after the net has lost its hooks.

In 2001, the arrangement made sense. Mobile operators controlled most cellular sites and had scant incentive to help a rival mount equipment on them. The regulated service gave one operator a route onto another's tower. According to the Commission's final investigation report, it helped 2degrees enter in 2009 and helped existing networks expand. A rule written for that ownership map could constrain the gatekeeper.

The map changed in 2023. Spark, One NZ and 2degrees sold passive tower infrastructure to Connexa and Fortysouth. These specialist firms earn more when a site has more tenants. Yet Schedule 1 defines an access provider as a person operating a cellular mobile telephone network. The tower companies do not fit. The Commission separates the activity from the legal service with unusual clarity: equipment can still be co-located commercially; regulated Mobile Co-location has no current addressee. Its letter to the Minister calls the existing provision a rule that performs no function and supplies no backstop.

The missing backstop has a real opponent

The final report says tower owners and network operators have negotiated access for more than three years without regulatory intervention. It finds no evidence of systemic barriers to access. Connexa and Fortysouth compete with each other and smaller suppliers; neither has an exclusive claim on every mobile operator. Rural radio-access-network sharing, roaming and co-siting give operators other ways to extend coverage. These facts support the Commission's conclusion that the old mandate has become an administrative ghost.

TUANZ, the Technology Users Association New Zealand, supplied the strongest objection recorded in the report. A new entrant may discover that the most valuable sites are tied up in long-term agreements with incumbents. Delay, reserved capacity, awkward prices and non-price restrictions can matter more than a tower company's general desire for another tenant. TUANZ wanted a regulatory backstop or a route to bring tower firms inside an updated rule. One NZ supported removal, arguing that the old structure now creates complexity.

The regulator's answer is sharper than “trust the market.” Keeping this particular rule would not resolve TUANZ's named risks. The current service does not regulate tower capacity reservations, priority or tenancy ratios. It cannot reach the present owners. The Commission also says it received no submission from a non-operator reporting an access problem with a tower company. That is a bounded finding about the record before it. The report publishes no contract-by-contract table of a prospective entrant's price, wait time or usable capacity. That missing table is where a later dispute would become concrete.

The legal process has a narrow doorway. This investigation could recommend keeping or removing Mobile Co-location as a whole. It could not rewrite “access provider” or add the tower companies. A tailored obligation would need a separate Schedule 3 investigation. The Commission proposes to watch access and competition through its annual monitoring and targeted analysis, then use the Act's mechanisms if a specific problem emerges. That is a different kind of backstop: a future intervention powered by evidence, instead of an old sentence pretending to govern an owner it cannot name.

The Minister now has the formal choice. The industry's operating choice arrived earlier, when the assets moved and commercial contracts replaced the regulated route. A new entrant will not get far by pointing to a rule addressed to yesterday's owner. The useful public question is what offer the current owner puts on the table.

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