Posts Tagged ‘telecommunications law’
Friday, March 8th, 2013
The 2012 Telecommunications Consumer Protections Code was registered in September 2012, but thanks to a six month ramp up period it’s just starting to seriously impact Australian telco retailers.
The TCP Code, as it’s widely known, introduces a range of reforms designed to improve consumer satisfaction with telecommunications services. From 27 October last year, it mandated a form of unit pricing in advertising some telco plans, inspired by the unit pricing scheme that has applied in larger supermarkets for some years.
Telcos offering so-called ‘included value’ mobile plans are obliged to inform potential customers of the price of a two minute mobile call, the cost of an SMS and how much of their included value will be consumed by using a megabyte of data. ‘Included value’ plans are those where a monthly fee buys a higher amount of credit that can be applied to calls, messages or data usage.
Since 1 March 2013, it has also been obligatory for telcos to provide would-be customers with a two page summary of the key features and pricing of a plan, before they commit to buy. These ‘Critical Information Summaries’ are designed to provide clearer and more standardised information to customers, and to simplify the task of comparing various plans that may be under consideration.
Those are just two out of dozens of requirements imposed by the Code, and a newly created independent body called Communications Compliance has been charged with monitoring telco compliance with the new rules. By 1 April 2013, every telco that is subject to the TCP Code (and there may be as many of 1,000 of them) must file statements with the Code monitor attesting their Code compliance and listing the website location of the large amount of consumer and customer information that is now required to be provided on telco websites.
Standing behind the Code monitor is the Australian Communications and Media Authority (ACMA) as Code enforcer, with a range of sanctions available to it where education and encouragement fail to secure industry compliance. The ‘big stick’ here is a potential Federal Court penalty of $250,00 for failing to heed an ACMA direction to comply with the Code.
Cooper Mills is recognised as the premier legal adviser the 2012 Telecommunications Consumer Protections Code, and we have even established a dedicated website to support the industry’s compliance effort. Our innovative TCP Code Compliance Shop provides a rich set of expert compliance tools at a fraction of the cost of traditional legal advice.
Cooper Mills’ TCPCode.com.au website also offers news, analysis and commentary about the TCP Code, frequently updated.
The ACMA is already actively auditing telco compliance with the Code, even before the industry is due to file its compliance materials with Communications Compliance. We expect a busy time for telcos in the next few months as compliance laggards are identified and allowed short timeframes to get their business in order.
Wednesday, July 18th, 2012
The Australian Communications and Media Authority (ACMA) has today announced that it has changed the Telecommunications Numbering Plan 2007.
The three major changes are:
The most notable change is the introduction of the ’05′ prefix to new mobile numbers, which will supplement the existing ’04′ range of mobile numbers. This change has been driven by the ACMA’s prediction that an addition 100 million mobile numbers will be required over the next 20 years.
A copy of the Telecommunications Numbering Plan Variation 2012 is available for download.
Tuesday, July 3rd, 2012
The Telecommunications Industry Ombudsman (TIO) has announced that it is broadening its definition of small business by applying a new criteria to determining what a small business is.
Prior to 1 July 2012 the TIO largely dealt with consumers and also ‘small business’ customers, which until now has left many businesses outside the tent when it comes to TIO intervention.
From 1 July 2012, the TIO has announced that it will be applying the following criteria to determine what a small business is:
While the decision has been welcomed in some circles, some ISPs and Telcos have expressed their frustration that more customers will now come within the jurisdiction of the TIO. Critics claim that instead of operating as an independent party to facilitate a resolution of disputes, the TIO acts as a consumer advocate.
Monday, April 16th, 2012
ASX Listed M2 Communications has acquired Primus from US parent Primus Telecommunications Group (‘PTG’) in what is reported to be a $192.4 million deal.
It is reported that the transaction is not conditional on shareholder approval, and is due to complete in the second quarter of 2012.
The move comes amid restructuring by PTG of its Australian and Canadian businesses, while the purchase is yet another in M2′s strategic acquisitions, coming hot on the heels of its acquisition of Time Telecom earlier this year.
Tuesday, February 21st, 2012
The ACCC today (14 February 2012) announced that Telstra Wholesale ADSL services are now declared under an interim access determination.
The determination made under the Consumer and Competition Act 2010 has fixed the price Telstra can charge its wholesale ADSL customers, the effect of this is that wholesale customers are now benefiting from lower pricing.
The price reductions will see competitors such as iiNet better able to compete with Telstra’s retail product offering.
This will only serve to bring more scrutiny on NBN pricing and the benefits of cost effective ADSL services in the market place.
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.
Tuesday, November 8th, 2011
The Telecommunications Industry Ombudsman today released its annual report, which highlighted a spike in the number of complaints received, with mobile phone services leading the rise in complaints.
Of particular note there was a 26 per cent increase in disputes about internet charges on a mobile service.
According to the Report:
The TIO figures have been controversial in the past, with critics claiming that the TIO double and triple counts complaints, which results in the high headline number of complaints.
The TIO data will not doubt be seized on my the ACMA, who is looking at reform of the Telco industry following the release of its Reconnecting the Customer report.
Tuesday, September 13th, 2011
Retail internet and voice service providers are about to see the next wave of regulation from the Australian Government. This time, it is the Australian Communications and Media Authority (‘ACMA’) that is driving the changes.
ACMA is demanding a series of major changes to advertising and sales practices, as well as billing and complaint handling.
It is allowing the industry a short time to adopt the changes ‘voluntarily’ via an updated Telecommunications Consumer Protections Code. If that does not happen, it will enforce its requirements using its own powers.
The ACMA is giving industry five months in which to develop a revised code dealing with the matters that it considers must be changed. If those changes cannot be made within that time, the ACMA will intervene directly to implement its proposals by way of a standard.
Unless the industry adopts the ‘proposals’ in its Telecommunications Consumer Protection Code (‘TCP Code’) , ACMA will mandate them. Chris Chapman has now been reported as saying:
“The industry [is] ‘formally on notice’ to reflect the proposed changes in the new TCP code. If the industry doesn’t develop a code that addresses ACMA’s concerns, the ACMA will mandate changes through direct regulation.”
ACMA’s new ‘proposed’ rules
Initially, it will be up to the industry (through Communications Alliance) to redesign its TCP Code to satisfy ACMA. If that fails, a mandatory new industry standard is inevitable.
What should service providers be doing now?
First, it is important to realise that the main points are all locked in – as far as ACMA is concerned. Consultation on the changes is finished. There is room to refine the details, but the headline elements listed above are not negotiable for ACMA.
Second, you should consider whether you want to engage with Communications Alliance about any changes to the TCP Code. These changes will affect you and your sales and delivery processes. If you want to influence the TCP Code process, you’ll need to be prepared. There are only five months left for Communications Alliance to produce a document that satisfies ACMA.
Third, you should start to think about how your business will comply with requirements along the lines of those outlined above. What will your marketing / sales / delivery / complaints handling look like in 2012? Will you be well positioned to prosper in the new environment? How?
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 8th, 2011
The Australian Communications and Media Authority foreshadows changes to telemarketing rules contained in the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007.
Some of the proposed changes include:
For more detail on the proposed changes, you can download the Cooper Mills Bulletin here.