Judge reserves i4free decision

By CHRIS BARTON

Justice Potter reserved her decision in the bitter dispute between Telecom and free internet provider i4free yesterday, while Clear moved on a new injunction.

Clear was unsuccessful in getting its injunction heard with i4free's in the High Court at Auckland yesterday, but will meet Justice Potter today to work out a time she can hear its pleadings. Clear is seeking to force Telecom to honour its number portability agreement and not to pick and choose which services - such as 0867-prefixed numbers - it connects.

Clear will also seek to join i4free in the substantive hearing to decide whether 0867-prefixed internet calls can be readdressed to Clear's network. The case will decide, too, if Telecom's actions in cutting off i4free's numbers and restricting its access, as well as refusing to allow call readdressing to Clear, are anticompetitive.

Meanwhile, i4free faces another anxious wait while Justice Potter decides, possibly by the end of this week, whether to continue the injunction, granted a week ago, until the case is heard. That injunction requires Telecom to ration internet access to all internet service providers through its Airedale 4 exchange if the exchange becomes overloaded.

Counsel for i4free, Jim Farmer, QC, asked the court to extend what was now in place until the hearing, which he believed could take place as early as September if Telecom cooperated.

He pointed out that Telecom would have an incentive to cooperate if the injunction, which restrains it from restricting i4free's access - and in the process provides 2c a minute interconnection revenue to Clear - was still in place.

Telecom's lawyer, David Williams, QC, doubted the case would make it to trial this year, citing problems in getting a lay member to sit with the trial judge and the likely extensive list of expert witnesses, including some from overseas.

Mr Farmer argued that a lay member was not mandatory in a Commerce Act case and that use of numerous expert witnesses often wasted the court's time.

He also sought to expand the injunction to include 0873-prefixed numbers, which are used by Telecom Xtra and other internet providers on the network, because they are also managed by Telecom's intelligent network. If competitive parity was to be maintained, Mr Farmer argued, both 0867 and 0873-prefixed numbers should be subject to call management if Telecom's network became overloaded.

He was concerned, too, that Telecom might refuse to give i4free more new numbers to prevent its growth.

Should that occur, he asked for a further clause giving i4free the right to give 24 hours' notice to file for further variations to the injunction.

It emerged yesterday that while Clear derives about $1.5 million a month in interconnect revenue from Telecom, the flow in the other direction is very much in Telecom's favour - some $73 million a year.

Much of Telecom's submissions focused on the meaning of the phrase "used by you on link connections to the Telecom network," which Mr Williams argued showed i4free was in breach of its 0867 contract.

He also argued that Telecom's actions could not be anti-competitive because it was acting to protect its network, stopping customers who were not meeting their contractual obligations, and removing unnecessary costs - just as any company in a competitive environment would.