Posts Tagged ‘isp law’
Tuesday, February 21st, 2012
National ISP iiNet has today (22 December 2011) announced the acquisition of competitor Internode in a $105 million deal.
The acquisition will see iiNet add a further 190,000 broadband DSL subscribers and 260,000 active services. Internode has forecast FY12 earnings of $180 million.
Internode founder and MD Simon Hackett will remain as part of the executive team at Internode.
The acquisition by iiNet will solidify its position as the second largest Australian ISP in the residential broadband DSL market.
The acquisition is due to be completed on 29 February 2012.
Monday, July 11th, 2011
Optus has been hit with a $5.26m penalty in the Federal Court, for falsely advertising broadband download quotas. The decision heralds a new level of risk in communications advertising in Australia.
The clear rule is that high-powered headlines plus small print equals advertising danger.
This bulletin explains:
What Optus advertised
(a) In April 2010, Optus campaigned for a new range of ‘Think Bigger’ broadband plans.
(b) Each plan included a large data allowance (120/150/170GB) divided into ‘peak’ and ‘off-peak’ entitlements eg the 120GB plan was advertised with 50GB peak usage and 70GB off-peak usage allowance.
(c) The disclaimers stated: ‘Speed limited once peak data exceeded’.
How the advertised plans really worked
(a) When peak allowance was used, entire service was shaped to 64kbps for rest of month.
(b) Shaping applied to remaining off-peak allowance as well.
(c) So, for instance, if customer used whole 50GB peak allowance first, then entire 70GB off-peak allowance shaped to 64kbps.
(d) But if off-peak was exhausted first, further off-peak MBs were deducted from peak allowance, and shaping applied when that was exhausted.
How Optus defended the plans
Optus said that ‘Speed limited once peak data exceeded’ was a sufficient explanation: Once your peak allowance is reached, speed is limited.
Why ACCC took action
ACCC disagreed that the disclaimer was a clear and proper explanation. It argued:
(a) Public would assume that peak and off-peak entitlements were independent.
(b) Public would not understand that exhausting peak use would result in off-peak speed shaping to non-broadband speed.
What the court said and did in 2010
(a) The court agreed with ACCC.
(b) Court said that ordinary people simply wouldn’t understand the full rules of the plans, based on the advertising.
(c) Court particularly attacked ‘headline advertising’ where a powerful headline told one story and small print told a different story.
(d) Said there was:
(e) 29 October 2010: Court ruled that advertising was deceptive.
(f) 2 November 2010: Court banned Optus from repeating that kind of advertising for 3 years.
(g) 19 November 2010: Court ordered Optus to write to all affected customers offering remedies.
(h) 8 December 2010: Court held a penalty hearing.
What the court did on 7 July 2011
Announcing the result of the penalty hearing, the court ruled that Optus must pay the Commonwealth a pecuniary penalty of $5.26m.
Why a $5.26m penalty is now possible
(a) Before 2010, no financial penalty was possible under the law in a case like this.
(b) In 2010, the Competition and Consumer Act (‘CCA’) was amended to allow the court to impose penalties on a company of up to $1.1m per breach of certain sections of the CCA. That includes breaches of the law against misleading about ‘the quantity of services’.
Other provisions that can attract penalties
The new penalties are available for a wide range of breaches that communications providers should keep in mind. Here’s a non-exhaustive list:
(a) misrepresentations that goods are of a particular standard, quality, value, grade, composition, style or model
(b) misrepresentations that services are of a particular standard, quality, value or grade
(c) misrepresentations that a particular person has agreed to acquire goods or services
(d) misrepresentations that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits
(e) misrepresentation that the person making the representation has a sponsorship, approval or affiliation
(f) misrepresentation with respect to the price of goods or services
(g) misrepresentation concerning the availability of facilities for the repair of goods or of spare parts for goods
(h) misrepresentation concerning the need for any goods or services.
Obviously, communications advertising has just become more challenging. It’s a strong argument for having every advertisement checked by an expert in the area.
 That doesn’t make it legal in three years. It means that, should Optus break the ban, it will incur even higher penalties.
 As it is now called … it was then the Trade Practices Act.
Tags: Federal Court of Australia, ISP, isp law, ISP Lawyers, MIsleading and Deceptive Conduct, Optus, telecommunications law, Telecommunications Lawyers, Trade Practices Law
Wednesday, June 1st, 2011
The Australian Communications and Media Authority today foreshadowed six telco / ISP action areas it intends to address. While the six areas are described as ‘proposals’, ACMA is making it very clear that they will become law.
ACMA Chairman Chris Chapman is reported in today’s Age Online as follows:
Telcos will be given time to implement ACMA’s recommendations in their own self-regulatory industry codes but if they do not do so in a satisfactory way ACMA said it would force them to do so with new regulations.
“The outcomes that we are seeking … are non-negotiable,” Mr Chapman said. There will be a six-week consultation period after which ACMA expects the industry to begin implementing its recommendations.
“The die is cast, we’ve put it all out there in the report, the ‘guidance’ has been provided … the clock is ticking,” he said.
You can read more about in the Cooper Mills Telecommunications Law Bulletin.
Thursday, February 24th, 2011
The Full Court of the Federal Court of Australia has today dismissed the appeal by AFACT against iiNet’s earlier win the in Federal Court.
We will bring you more analysis of the decision shortly.
Monday, June 7th, 2010
On 4 June 2010 the Government in association with the Internet Industry Association launched the Voluntary Industry Cyber Security Code for ISPs.
The voluntary code is aimed at having ISPs join in contributing to cyber security, whether assisting customers understand risks and looking out for them, or notifying police when they become aware of unlawful activity.
The benefits to ISPs are obvious from a marketing perspective, this is further boosted by eligibility to display the ‘iCode Compliant’ badge on their websites. Many ISPs would argue that they already provide customers with detailed information on keeping their computers safe, and already notify law enforcement when they become aware of unlawful activity.
The Code is expected to come into force on 1 December 2010.
Wednesday, May 5th, 2010
Consumers will have the choice of barring all premium SMS from their mobile phones as of 1 July 2010, with the latest package of measures announced by the ACMA.
The ACMA has said that the package has been created so that “…mobile users can feel confident they will only receive and pay for services they actually want”.
In a meeting with senior representatives of mobile phone companies the ACMA will discuss the possibility of the introduction of a service where consumers can request quick and easy barring via SMS.
Complaints to the Telecommunications Industry Ombudsman regarding premium SMS services have decreased by an astonishing rate of 50% following measures introduced by ACMA last year. As the ACMA is hoping that this trend will continue, it will be closely monitoring the industry over the next 12 months to ensure that consumer concerns are adequately being dealt with.
Recent enforceable undertakings that the ACMA has accepted from Funmobile Australia Pty Limited, which included a payment of $55 000, emphasize the ACMA’s commitment to pursuing telcos which repeatedly operate in breach of the law.
Industry has welcomed the new package as a further reinforcement of the existing suite of consumer protection measures included in the Communications Alliance Mobile Premium Services Industry Code C637:2009.
Despite both consumers and industry receiving the package with a warm welcome, the telcos will be hit hard. In a quote published by Computer World, Warren Chaisatien, research director and principle analyst at Telstyle, says that although the rule will aid consumers who have unintentionally signed up to a premium services, it is likely to have a negative impact on telco revenues as the premium SMS market was worth approximately $250 million in 2009.
Tags: ACMA, isp law, ISP Lawyers, Premium SMS, telco lawyer, telecommunications law, Telecommunications Lawyers, telo lawyers
Thursday, February 25th, 2010
Reports today indicate that AFACT has sought leave to appeal the landmark copyright infringement judgment handed down against it, earlier this month.
This comes on the back of a notice of motion filed by AFACT against iiNet with the Federal Court on 18 February 2010 – that motion is scheduled to be heard by the Court on 4 May 2010.
We will keep you posted once more information is to hand.
Thursday, February 4th, 2010
Justice Cowdry of the Federal Court of Australia this morning brought down judgment in the iiNet copyright case, in which the Australian ISP was successful.
It was alleged by 34 applicants made up of film studios such as Sony and Warner Bros that iiNet had facilitated copyright infringement, by allowing customers to use peer to peer software to download pirate versions of movies and other copyrighted material.
The Court held that the law did not impose a positive obligation upon iiNet to prevent copyright infringement. The result comes as a slap in the face to the big film studios who had vigorously pursued this case.
This case had attracted international attention and had resulted in legislative changes in jurisdictions such as the UK, where ISPs have an obligation to disconnect customer who infringe copyright.
ISP Lawyers and Telecommunications Lawyers have for some time been debating the merits of this case – some commentators don’t think that this is the end of the matter, with the films studios having the ability to appeal the judgment on points of law.
More to follow…….
Wednesday, December 16th, 2009
Telecommunications Company TeliaSonera has said it is recruiting customers to pilot its new 4G network in Oslo and Stockholm which will be launched in early 2010.
The 4G network is configured around the Long Term Evolution (LTE) technology, with data speeds of up to 100 megabits per second, which is significantly faster than existing 3G networks. The 4G roll out has be designed to easily deploy by overlaying existing 3G infrastructure.
Customers will initially connect to the network via a Samsung B3710 USB dongle and a laptop, as no handsets can yet use the 4G network. The Samsung B3710 lets users download at max speeds of 100Mbps. The B3710 is set to be available in the first half of 2010, in time for the first live customer tests. Handsets that can use LTE are expected in mid-late 2010.
Ericsson has constructed the network in Stockholm, Sweden while in Oslo, Norway Chinese firm Huawei is behind the operations. Both networks cover the central regions in both cities.
Most operators have committed to upgrading to the faster system, and TeliaSonera expects that the advance is speed will drive the use of many novel applications such as gaming and viewing of video on laptops.
Tuesday, October 6th, 2009
The ACCC has announced the launch of an Information Paper entitled “Mobile and Other Wireless Internet Speed Claims and the Trade Practices Act 1974”.
The Paper has been developed to assist ISPs in ensuring that their advertising for mobile and wireless internet is compliant with the Trade Practices Act 1974, and in particular the consumer protection provisions.
In launching the Paper, ACCC Chairman, Graeme Samuel said that:
The ACCC has warned ISPs not to advertise terms such as ‘maximum’, ‘up to’ or ‘peak network’ speeds, “if those speeds are not generally achievable or likely to be achieved by consumers using the network.”. The ACCC warning indicates that it is taking a similar approach to that previously taken with ADSL2+ advertising.
The ACCC has expressed the view that ISPs should:
The Paper also contains an Industry Checklist to assist with compliance – ISPs are reminded that they should also remember to ensure compliance with CommsAlliance Code C628:2007 TCP Code.
Compliance takes added significance in light of the ACCC’s recent actions in securing enforceable undertakings against some of Australia’s largest ISPs.