Industry news

TCP Code D-Day approaching

posted Mar 19, 2013, 5:30 PM by Austin Carwardine   [ updated Mar 19, 2013, 5:32 PM ]

Coming closely on the heels of the 1 March 2013 deadline for publication by all service providers of Critical Information Summaries in accordance with the Telecommunications Consumer Protections Code (Code), is the 1 April 2013 deadline for lodgement with Communications Compliance (CommCom) of each service provider's attestation and customer information compliance statement.  The attestation in particular is very significant, as it is confirmation that a service provider has a compliance plan and is fully compliant with the Code.

We have seen that the ACMA has been very vigorous in monitoring compliance with the Critical Information Summaries requirements in the Code, and that it commenced this activity immediately after the deadline.  Its examination of CISs has been very detailed and forensic.  The ACMA has also been active in reviewing complaint handling policies and writing letters to service providers if they think that CHPs are non-compliant.  There is no reason to expect that this activity will ease up from 1 April, quite the opposite in fact!

NBN SAU under public consultation

posted Nov 21, 2012, 4:19 PM by Austin Carwardine

The Australian Competition and Consumer Commission (ACCC) has recently commenced its public consultation process on NBN Co's Special Access Undertaking (SAU).  The SAU is intended to set out a framework over a 30 year period for regulating the supply of NBN services and is therefore a vitally important document for all industry participants.  As part of the consultation process, the ACCC has released a consultation paper and invites submissions to that paper (due by 11 January 2013).  The ACCC will also hold a stakeholder forum in December 2012.

The consultation paper and proposed SAU may be downloaded from the ACCC's website here:

Does an IRU give property rights?

posted Nov 12, 2012, 4:44 PM by Austin Carwardine   [ updated Nov 12, 2012, 4:45 PM ]

Some enquiries have recently been made regarding the specific rights that attach to the grant of an indefeasible right of use (IRU) in capacity in a telecommunications submarine cable network.  Is the holder of an IRU at risk in the event of the insolvency of the cable network owner?  Is an IRU truly indefeasible?

For background, the vast majority of intercontinental telecommunications traffic is carried through optical fibre submarine cable networks.  The purchase of capacity in a cable network is often in the form of a contract between the purchaser of the capacity and the owner of the cable network and referred to as an IRU or an IRU agreement.  The rights granted to a purchaser are defined solely by the terms and conditions of the relevant IRU agreement, no more, no less.  As a consequence, the holder of an IRU is granted no particular property rights.  If the cable network is sold by a receiver or shut down, existing IRU holders may not be protected.  If the agreement gives the owner the right to terminate the agreement (for example, for breach by the purchaser), the term "indefeasible" will be of no assistance to the purchaser.  Their capacity is terminated in accordance with the agreement.  

It is therefore recommended that purchasers of capacity carefully review any IRU agreements and seek appropriate amendment prior to entering into them.  Such matters as payment terms, and the rights and remedies of the purchaser in the event of breach by or insolvency of the owner (or other granter of the capacity), need to be carefully considered in the light of the above circumstances.

ACMA takes action over failure to provide 000 access

posted Nov 12, 2012, 2:55 AM by Austin Carwardine

The Australian Communications and Media Authority has commenced legal proceedings against TPG Internet Pty Ltd for alleged failures to give access to the 000 emergency call service.  Specifically, the ACMA alleges that TPG Internet breached the Telecommunications (Emergency Call Service) Determination 2009 by failing to give some customers access to 000 for a period of about six months.  Carriers and carriage service providers need to review the precise requirements under this Determination and review their compliance with it.  [From ACMA media release, 9 November 2012.]

ACCC targets misleading warranty terms and return policies

posted Oct 24, 2012, 10:40 PM by Austin Carwardine   [ updated Dec 5, 2012, 6:44 PM ]

This is an update to a post from October 2012, prompted by further ACCC activity.

In November, the Australian Competition and Consumer Commission (ACCC) commenced legal proceedings against various Harvey Norman franchisees, alleging that the franchisees engaged in misleading or deceptive conduct (in breach of the Australian Consumer Law) by making false or misleading representations to consumers about their rights under the consumer guarantee provisions of the ACL.

In October, the Australian Competition and Consumer Commission (ACCC) commenced legal proceedings against Hewlett-Packard Australia, alleging various breaches of the Australian Consumer Law in relation to statutory warranty and consumer guarantee rights.  In particular, the ACCC alleged that HP engaged in misleading or deceptive conduct by misrepresenting to consumers their statutory rights under the Australian Consumer Law.  The ACCC also said that it was conducting ongoing investigations into other companies for possible breaches.

Any company which manufactures or sells goods or services needs to carefully review its warranty terms, policies relating to the return of faulty products and other related documentation, and make appropriate changes, to ensure that they do not misrepresent the extent of consumer guarantee rights and thus inadvertently breach the Australian Consumer Law.

New TCP Code in force from 1 September 2012

posted Sep 4, 2012, 6:40 PM by Austin Carwardine   [ updated Sep 5, 2012, 5:24 PM ]

The new and vastly more onerous and complex Telecommunications Consumer Protections Code (TCP Code) is now in force.  The TCP Code introduces a range of new obligations on all suppliers of telecommunications services, including advertising disclosure rules, provision of information, publication of "critical information summaries", disclosure of unit pricing or standard charges, rules in relation to selling practices, mandatory processes for credit management and complaint handling, bill content and provision requirements, and a new compliance scheme involving attestation of compliance to a new body Communications Compliance.

Some obligations, such as usage notifications, are to be implemented in stages over a period of up to two years, but most obligations are in force now.  A comprehensive compliance program must be completed by 1 March 2013, and then maintained and followed.  The initial compliance attestation is due to Communications Compliance by 1 April 2013.

The Australian Communications and Media Authority has the power to direct a carrier or service provider to comply with the TCP Code, with a failure to comply with such a direction exposing the supplier to the risk of the ACMA seeking court-imposed fines of up to $250,000.  The ACMA's chairman Chris Chapman recently said that "the ACMA will be taking a much tougher and more directive stance, turning up the heat.  You will see more investigations, directions and court cases.  So if you're an industry player, for heaven's sake wise up."

For advice as to compliance with the TCP Code, please contact Austin Carwardine at Carwardine Legal.

TPG fined $2 million for breaches of the Consumer Law

posted Jun 20, 2012, 12:01 AM by Austin Carwardine   [ updated Jul 4, 2012, 4:45 PM ]

The Federal Court has found that TPG Internet's $29.99 Unlimited ADSL2+ advertising campaign was misleading and in breach of the Competition and Consumer Act, and fined the company $2 million.  TPG is also required to run corrective advertising, and to maintain a formal trade practices compliance program for at least three years.  The court found that advertising for the ADSL2+ plan did not sufficiently disclose that the offer was only available when purchased with home line rental from TPG at an additional cost, and that some advertisements did not prominently specify the minimum charge and were misleading for not disclosing up-front charges.  

The judgment, and the ACCC's recent enforcement actions (which have included issuing a number of infringement notices), highlight the importance of an effective legal compliance program, with the stress on the word "effective".  Review of advertising and marketing material by a fearlessly independent legal practitioner, who is not "captured" by a company's sales and marketing function, is incredibly important in the context of a very active ACCC and a very onerous Competition and Consumer Act (including its Australian Consumer Law).  The updated TCP Code will also present significant challenges for all carriers and service providers.

New TCP Code on the way

posted Jun 7, 2012, 6:50 PM by Austin Carwardine

Communications Alliance has recently published a further version (May 2012) of the Telecommunications Consumer Protections Code (C628), which (with minor changes) is awaiting registration by the ACMA.  This version of the TCP Code includes significant changes and upgraded obligations from the February 2012 draft, and is of course significantly more onerous for CSPs and carriers as compared to the current TCP Code, registered in 2007.  Compliance is anticipated to be a complex and costly process for all industry participants.

Optus loses "TV Now" case on appeal

posted May 8, 2012, 5:43 PM by Austin Carwardine

The Full Court of the Federal Court has allowed the appeal of the NRL, AFL and Telstra, overturning the primary judgment and finding that Optus infringed copyright in operating its "TV Now" service.  Nicholls Legal has published an excellent case note, which you may find here:

TPG pays infringment notices over "free minutes" claims

posted May 8, 2012, 5:35 PM by Austin Carwardine   [ updated May 8, 2012, 5:56 PM ]

TPG Internet Pty Ltd (TPG) has paid two infringement notices totalling $13,200 in relation to advertisements for its ‘500 free VoIP Minutes’ offer which the Australian Competition and Consumer Commission believed to be misleading.

TPG advertised on its website that consumers who subscribed to a broadband bundle plan would receive 500 free minutes of VoIP calls. However, the offer was subject to terms and conditions which meant that a consumer would only receive 500 minutes of free VoIP calls if each and every call made had a minimum duration of 10 minutes. One of the advertisements also did not disclose that the call must terminate in Sydney, Melbourne, Brisbane, Adelaide, Canberra or Perth.

The ACCC put the telecommunications industry on notice that it will not tolerate misleading advertising, and noted that it is concerned that consumers are regularly still not offered transparent and clear information about the price, terms and conditions for their services.  It said that it will take an increasingly aggressive approach to send the message that this kind of misleading advertising (particularly fine-print qualification) will not be tolerated.  [From the ACCC news release, 26 April 2012.]

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