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Posts Tagged ‘Telecommunications Lawyers’Communications Authority launches new regulatory pushTuesday, 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. Quoting ACMA: 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
Comment 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?  Tags: ACMA, IT Lawyers, technology lawyers, Telco Lawyers, telecommunications law, Telecommunications Lawyers Optus hit with $5.26 million fineMonday, 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[1]. (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[2] (‘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. Summary Obviously, communications advertising has just become more challenging. It’s a strong argument for having every advertisement checked by an expert in the area. [1] That doesn’t make it legal in three years. It means that, should Optus break the ban, it will incur even higher penalties. [2] 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 Cooper Mills Bulletin on ACMA CrackdownWednesday, 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: You can read more about in the Cooper Mills Telecommunications Law Bulletin. Tags: ACMA, Chris Chapman, ISP, isp law, IT Law, Telco, Telco Lawyers, Telecom Lawyers, Telecommunications Lawyers ‘Max Cap’ lands Optus in Hot WaterThursday, May 19th, 2011 The ACCC has fined Singtel Optus Pty Ltd $178,000 for misleading conduct arising out of its ‘Max Cap’ marketing campaign. The ACCC’s view is that the Optus’ Max Cap advertisements:
The advertisements at issue contained the Max Cap $49, which wasn’t a cap, but rather the minimum a customer would need to spend. In commenting on the conduct of concern to the ACCC, acting ACCC Chairman Mr Peter Kell said: “If you advertise a service as a ‘$49 Max Cap’ when $49 is the minimum that consumers have to pay, then you risk breaching the law by misleading consumers about the cost of the service,” and “Claims that a service allows consumers to call ‘anyone’ are likely to be misleading if the reality is that some types of calls are excluded“. All ISPs and Telcos should have a process in place to review advertisements, not only to ensure compliance with the Competition and Consumer Act 2010 but also the Telecommunications Consumer Protections Code. Tags: Competition and Consumer Act 2010, technology lawyers, Telco Law, Telecom Lawyers, telecommunications law, Telecommunications Lawyers Privacy Awareness Week 2011Monday, May 2nd, 2011 Cooper Mills Lawyers is once again proud to partner with the The Office of the Australian Information Commissioner to promote Privacy Awareness Week 2011. Privacy Awareness Week was launched today, with the aim of encouraging people to exercise their privacy rights and to take steps to make sure their personal information is handled in accordance with the law. As part of Privacy Awareness Week, The Office of the Australian Information Commissioner has timetabled a week of events as follows:
Tags: IT Law, lawyers, Office of the Australian Information Commissioner, Privacy Law, Privacy Lawyers, Telecommunications Lawyers ACMA to review numbering planMonday, October 25th, 2010 The Australian Communications and Media Authority (ACMA) has launched an issues paper, to examine whether the numbering plan and the way telephone numbers are used remain appropriate. The increasing use of voice over IP (VOIP) and mobile telephones have forced a rethink on telephone numbering. In announcing the launch of the issues paper, the ACMA Chairman Chris Chapman said:
The ACMA has called for comments on the issues paper by 3 December 2010. The issues paper is available from the ACMA website here. Tags: ACMA, Telecommunications Lawyers, VOIP ACMA determination on premium SMS restrictionsWednesday, 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 ACMA issues landmark proceedingsTuesday, March 2nd, 2010 In a landmark move, the ACMA has for the first time brought an action in the Federal Court against Telco GoTalk for an alleged breaches of the Do Not Call Register Act 2006. The ACMA alleges that GoTalk via its two offshore calls centres called 40,000 numbers contained on the Do Not Call Register. Breaches of this kind have proven to be costly for infringing companies in the past, with Dodo Australia being issued a fine of $147 400 in 2008 for its call centres ringing 67 de-listed Australian phone numbers. This isn’t the first sign of trouble for GoTalk. Last year the company accepted undertakings by the ACCC to record telemarketing calls and to monitor conversations at random to ensure compliance with the TPA, in response to allegations that its offshore call centres had misrepresented information to consumers, including pricing and terms and conditions. The matter is listed for directions on 29 March 2010 in the Federal Court in Sydney. Tags: ACMA, Do Not Call Register, Do Not Register Call Act, GoTalk, ISP lawyer, ISP Lawyers, IT Lawyers, telecommunications lawyer, Telecommunications Lawyers iiNet wins landmark caseThursday, 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……. Tags: iiNet, isp law, ISP Lawyers, IT Lawyers, telecommunications law, Telecommunications Lawyers GSM Encryption CrackedSaturday, January 2nd, 2010 According to news reports, German researchers claimed to have cracked the A5/1 encryption technology used to encrypt GSM mobile phone calls, which represents approximately 80% of the worlds mobile phone users. These claims have raised concerns with some mobile operators, who claim that if this finding were to be used by criminals, GSM telephone call could be intercepted and monitored relatively easily and cost effectively. This type of conduct is prohibited under Australian law. IT and Telecommunications Lawyer, Erhan Karabardak, Principal of Cooper Mills Lawyers, said:
Tags: Telco Law, Telco Lawyers, Telecom Law, Telecom Lawyers, telecommunications law, Telecommunications Lawyers |
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