CooperMills

Posts Tagged ‘ISP Lawyers’

Up to one million users who have modified their Xbox game consoles to play pirated games have blocked from logging onto their online accounts.

Microsoft has said that:

“all consumers should know that piracy is illegal and that modifying their Xbox console to play pirated discs violates the Xbox Live terms of use, will void their warranty and result in a ban from Xbox Live.”

Machines which are physically altered by attaching extra chips and other hardware violate Microsoft’s terms of use. Although Microsoft can do little to prevent offenders from using their machines to play pirate games, they can cut of online access which in many cases will cut off access to large parts of the game as more and more titles promote an online play element.

Online piracy is becoming an issue of growing concern for the entertainment industry.  Industries have to implement new techniques to prevent piracy from occurring. The music and film industry in the UK has lobbied for the new “three strikes” policy which comes into effect in April 2010. This will require ISPs to suspend internet services of those who ignore piracy warnings.

These new regulatory measures come as a backdrop to the AFACT/IINET case being fought in The Federal Court, about ISPs allegedly allowing copyright infringers to use ISP services.

Tags: domain name lawyers, ISP Lawyers, ISP piracy, IT Lawyers, Telecommunications Lawyers
Posted in General, ISP and Telco Law, IT Law | Comments Off

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 is concerned by companies over-promising and under-delivering the speeds available on mobile and wireless internet, particularly in the context of network upgrades and increasing wireless internet subscriptions,” “This Information Paper is intended to assist the whole industry – mobile and wireless internet retailers, resellers, and network owners – to comply with the law.“

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:

1. only make speed claims based on ‘appropriate tests of network performance’ to show speeds that can generally be achieved; and
2. prominently state the factors affecting mobile and wireless internet speeds such as congestion, location, and other variables.

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.

Tags: isp law, ISP Lawyers, Telcommunications Lawyers, telecommunications law, Trade Practices Act 1974, Trade Practices Law
Posted in ISP and Telco Law, Trade Practices Law | Comments Off

The TIO has claimed success in its ‘Connect Resolve’ campaign, with only a minor increase of 1.8% in complaints over the period of the campaign.

The Connect Resolve campaign which ran between January 2009 and June 2009, was targeted at the 10 largest Telco’s in Australia with the aim of having Telcos:

“….refocus on their customers’ experiences and the need to improve their customer service practices.”

Throughout the campaign:

“….service providers received monthly data about their customers’ complaints to the TIO, as well as examples of consumer `voices’ so they could have a better understanding of which areas needed improvement, and further develop their customer service processes.“

The minimal increase of 1.8% during the campaign was in contrast to a 46% increase in complaints for the same period last year.

The Ombudsman said that:

“The stabilisation shows that our collaborative approach with service providers has been effective, but they need to continue their efforts to prioritise customer service,”

It is commendable that the TIO has in this instance taken the cooperative approach, but this campaign is the exception rather than the rule. We are still receiving regular complaints from our clients about the lack of impartiality of the TIO, and the confrontational approach taken in ‘resolving disputes’.

According to Cooper Mills Lawyers, Director and Telecommunications Lawyer Erhan Karabardak:

If the TIO wants to seriously reduce complaints they should (in addition to these types of campaigns) impose a complaint fee, which would have a significant impact on a large number of complaints that are made in bad faith, and which are without merit.

Tags: Erhan Karabardak, ISP Lawyers, Telecom Lawyers, Telecommunications Lawyers, TIO, TIO Complaints
Posted in General, ISP and Telco Law | Comments Off

The Australian Communications and Media Authority (ACMA) yesterday announced that Australia’s largest Telco Telstra breached the Do Not Call Register Act (“Act”) and was fined $101,200.

The ACMA claims that one of Telstra’s external call centres in Australia made telemarketing calls to numbers listed on the Do Not Call Register (the Register). The ACMA began investigations in August 2008 following a raft of consumer complaints about calls to numbers listed on the Do Not Call Register. According to the ACMA:

The investigation found that inadequate compliance systems, procedures and supervision had contributed to calls being made to numbers on the Register where the consumers were not existing Telstra customers.

In addition to the fine, Telstra was forced to enter into enforceable undertakings with the ACMA, which included the appointment of external consultants to review Telstra’s compliance procedures.

In clarifying its expectations, the ACMA said that it:

expects large businesses like Telstra to be leading the way and setting an example when it comes to compliance with the Do Not Call Register – not falling behind.

This is at odds with its earlier treatment of the Westpac Bank who only received a warning for breaches earlier this year – Westpac Bank breaches Act.

In commenting on the ACMA’s action, Cooper Mills Director and IT & T Lawyer Erhan Karabardak said that:

It is positive to see that the ACMA is taking enforcement of the Act seriously, but the inconsistency in penalties may be something for the ACMA to consider in future. Although each case needs to be assessed on its own facts, any perceived inconsistencies in treatment may undermine the efforts of the ACMA.

Tags: ACMA, Erhan Karabardak, ISP Lawyers, IT Lawyers, Telco Lawyers, Telecom Lawyers, Telecommunications Lawyers
Posted in ISP and Telco Law, IT Law, Privacy | Comments Off

According to reports on Broadband News website Whirlpool, the iPrimus data centre at 55 King Street Melbourne was crippled over the weekend due to a now all to common data centre blackout.

Whirlpool says:

The power dropped around 3:45PM and caused Victorian and Tasmanian customers from ISPs such as Exetel, iiNet, Internode and Netspace to lose their broadband connections.

Internode was able to route around the problem by 4:15PM, while the other ISPs were back online around 5:30PM.

In a notice to customers, Primus blamed “high tension fuses in the CitiPower substation feeding our Data centre”, which it said was the same issue affecting power in February.

Backup diesel generators “failed to start due to a synchronization processor failure.” According to the notice, works to upgrade the substation that failed were already planned for next weekend.

With a recent outage in February 2009, one would have thought that Primus would have been more proactive in avoiding a repeat of the previous disaster.

The outage provides a timely reminder for companies with critical data centre need to ask their data centre provider simple questions such as:

1. what redundant power arrangements are in place ?

2. how often is the power redundancy system tested ?

3. is there a meaningful SLA to give some level of assurance, and financial compensation if the worst does happen ?

These are some simple yet important questions to ask, if your data centre provider cannot answer these questions satisfactorily, then you should consider whether they are the best provider for your mission critical hosting requirements.

Tags: data centre, ISP Lawyers, IT Law, IT Lawyers, telecommunications, Telecommunications Lawyers
Posted in ISP and Telco Law, IT Law | Comments Off

The ACMA has issued ISP, Green Tree Frog, with a remedial direction, arising out of its alleged failure to comply with directions of the Telecommunications Industry Ombudsman (‘TIO’) in two separate instances.

According to ACMA Chairman, Chris Chapman:

All members of the TIO Scheme have an obligation to comply with the responsibilities established under the scheme as well as those established by the legislation that governs the industry….In issuing this direction, ACMA has undertaken the appropriate enforcement action to prevent Green Tree Frog from continuing to contravene its regulatory obligations.

The failure to comply arose out of two instances in which among other things, the TIO directed that Green Tree Frog “pay money to a customer and waive their early termination fee“.

We previously reported that another ISP had failed to comply with the TIO scheme and had been issued with a direction by the ACMA. The ACMA in line with its recently processes, has once again exercised its statutory powers to compel compliance.

Whilst the ACMA is bound to enforce the law, bigger questions about the role of the TIO and its impartiality have in the recent past been in issue. Only time will tell whether the industry will make a stand on this issue.

Tags: ACMA, isp law, ISP Lawyers, telecommunications law, Telecommunications Lawyers
Posted in ISP and Telco Law | Comments Off

Dodo Australia Pty Ltd has been forced to give a Court enforceable undertaking to issue refunds customers and discount monthly plans, as a result of an ACCC investigation into misleading statements statements made by the Telco.

According to the ACCC, Dodo advertised free offer plans between October 2008 and March 2009 on both the television and its website. The ACCC also said:

The ACCC was concerned consumers were likely to have been misled or deceived by the advertisements which represented consumers would receive either of an Asus Eee PC, a fuel card or a cash payment (to their nominated account) for free or at no cost when they signed up to any one of the Free Offer Plans.

An investigation by the ACCC revealed Dodo offered other cheaper mobile cap plans (that did not include the free goods or cash) that were comparable (in included value and services) with the Free Offer Plans.  In some cases the monthly fee for those comparable mobile cap plans was up to $30 per month lower.

Customers on the following plans may have been affected, and ultimately may be eligible for discounts or refunds:

1. ‘FREE $29.90 Mobility Cap Plan’,

2. ‘FREE Fuel’ and

3. ‘Cash Offer’ 24 month mobile cap plan offers

Dodo is not new to controversy, previously having received a wrap over the knuckles from both the ACMA and the ACCC for various alleged breaches of the law.

Tags: isp law, ISP Lawyers, telecommunications law, Telecommunications Lawyers, Trade Practices
Posted in General, ISP and Telco Law, Trade Practices Law | Comments Off

The TIO’s  recently released December 2008 quarter complaints statistics identify complaint handling as a problem area for ISPs and Telcos.

The TIO statistics show that complaints around complaint handling are increasing across all service segments:

Mobile services:

• Provisioning (an increase of 37.7 per cent, from 297 to 409)
• Customer Transfer (up 40.5 per cent, from 412 to 579)
• Complaint Handling (up 25 per cent, from 4,340 to 5,427)

Landline services:

• Complaint Handling (increasing by 55.1 per cent, from 3,957 to 6,137)
• Phonecard (up 70.1 per cent, from 281 to 478)
• Disability (up 117.4 per cent, from 46 to 100)
• Billing and Payments (up 40 per cent, from 6,999 to 9,796)

Internet services

• Complaint Handling (rising 31.5 per cent, from 2,782 to 3,657)
• Credit Management (up 30.7 per cent, from 1,177 to 1,538).

The statistics are a timely reminder of the Complaint Handling obligations contained in the Telecommunications Consumer Protections Code C628:2007.

Clause 9 of the TCP Code imposes a number of obligations, the core of which are:

1. (clause 9.1.1) having a complaint handling process;
2. (clause 9.1.2) having a documented complaint handling policy;

It is also a requirement under clause 9.1.4 of the TCP Code that:

Suppliers must give the TIO a copy of their internal Complaint handling policy and advise the TIO of any significant changes within 7 days of the change, or as soon as practicable after that time.

The success of compliance can in large part be impacted by staff training and awareness of the procedures and policies. This needs to be addressed to ensure effective TCP Code compliance.

Non-compliance may cause the ACMA to take action by issuing formal directions or taking other enforcement action.

Tags: Code Compliance, isp law, ISP Lawyers, telecommunications law, Telecommunications Lawyers, TIO
Posted in ISP and Telco Law | Comments Off

In the shadow of the Victorian bush fires, regulations create a new exception to the use and disclosure offences under Part 13 of the Telecommunications Act 1997.

Part 13 of the Act requires that Carriers, CSPs, their employees and contractors protect the confidentiality of protected information such as the content of communications, the affairs and personal particulars of people and namely the integrated public number database. The offences under this part are contained in sections 276 to 278, and can include a penalty of imprisonment against offenders.

s292(1) of the Act allows regulations to be made that provides for circumstances in which there may be exceptions to the offences under sections 276 to 278.

Although the Act already allows disclosure of documents and information in cases of threat to life or health (s287) in very limited situations, the Telecommunications Amendment Regulations 2009 (No.1) provides for an exception for the purpose of:

1. preventing or lessening a serious and imminent threat to the life or health of a person or a class of persons; or
2. ensuring that effective arrangements are in place to deal with such threats

The Explanatory Statement to these new Regulations states that:

The primary purpose of the Regulations is to allow emergency management authorities in each state and territory to obtain phone numbers and personal particulars (including any unlisted telephone or any address) of all the database listings for their respective state or territory for the purpose of ensuring effective arrangements are in place to deal with serious and imminent threats to life and health of persons. Such threats may emanate from natural disasters (such as bushfires and floods), criminal acts and non natural disasters (such as industrial accidents).

The Regulations permit disclosure of either (a) the information in an integrated public number database; or (b) a document that consists or relations to information contained in the integrated public number database.

Before disclosure is permitted there are 3 requirements that an authorised person must meet, these are:

1. certify to Telstra that the disclosure and use of the information is required for the two permitted purposes (as set out above); and
2. identify the recipient of the information; and
3. provide Telstra with an undertaking that (a) any disclosure or use by a person other than Telstra or an employee of Telstra will be fore the same purpose; and (b) reasonable steps will be taken to ensure that any disclosure or use by a person other than Telstra or an employee of Telstra will not adversely affect the operation of Telstra telecommunications network;

There are also a number of safeguards requiring destruction of information when no longer required, and authority for the Privacy Commissioner to monitor the use of the information or documents.

We recently received an emergency communication from the Victoria Police, which we presume took advantage of these new Regulations, by way of an SMS warning of:

Extreme weather in Vic expected Mon night & Tues. High wind & fire risk. Listen to Local ABC Radio for emergency updates. Do not reply to this msg.

This Regulation is a welcome yet long over due regulatory development.

Tags: isp law, ISP Lawyers, Privacy, Telco Law, telecommunications law, Telecommunications Lawyers
Posted in ISP and Telco Law, Privacy | Comments Off

The Australian Communications and Media Authority ACMA last week announced that it had assessed 44 carriage service providers, and issued formal directions to 2 providers for non-compliance with the financial hardship requirements of the Telecommunications Consumer Protections Code (TCP Code).

Chapter 7 of the TCP Code deals with Credit Management, and among other things sets out obligations on how CSPs and Carriers must conduct themselves throughout the credit management process, including in cases of financial hardship.

Clause 7.5.1 states:

7.5.1 Financial Hardship policy: A Supplier must have a Financial Hardship policy that:
(a) provides for training of staff who will be applying the policy;
(b) is sufficiently flexible to accommodate the circumstances of individual Customers;
(c) ensures that a Customer can contact appropriate employees of the Supplier if experiencing Financial Hardship; and
(d) includes options for managing a Customer’s Financial Hardship.

The ACMA’s formal direction to compel the 2 CSPs  in question, to prepare a compliant Hardship Policy, once again underlines the importance of implementing a proper code compliance program, to maintain compliance, before the ACMA is forced to take action. Failure to comply with the formal direction, would result in Federal Court action by the ACMA to compel the CSPs in question.

Unfortunately, many ISPs are not proactive in ensuring compliance, and it is only when the ACMA comes knocking that they realise. This is something that we can assist you to overcome.

We have prepared scores of compliant policies, if you are a CSP who doesn’t comply, give us a call, we can help!

Tags: Code Compliance, isp law, ISP Lawyers, TCP Code, telecommunications law, Telecommunications Lawyers
Posted in ISP and Telco Law | Comments Off