The Information Paper has been developed to assist ISPs and Telcos 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 such as s52.

In launching the Information 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/Telcos 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/Telcos 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 Information Paper also contains an Industry Checklist to assist with compliance – ISPs/Telcos are reminded that they should also remember to ensure compliance with CommsAlliance Code C628:2007 TCP Code (Prices Terms and Conditions). Significant effort must be applied in light of the ACCC’s warnings and recent actions in securing enforceable undertakings against some of Australia’s largest ISP/Telcos.

ACCC has made Dodo Australia give a Court enforceable undertaking to issue refunds customers and discount monthly plans, as a result of misleading statements.

According to ACCC, Dodo advertised misleading ‘free’ offer plans between October 2008 and March 2009 on both the television and its website.
 
ACCC’s concerns

ACCC 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.

Who was affected

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

It’s not the first time …

Dodo is not new to controversy – we have previously reported on:

• Dodo Advert’s pushing the limit and
• Dodo stung hard for DNCR Act breaches

among others.

Hopefully this time Dodo will learn their lesson from the ACCC investigation, but based on past events this may not be the last time we hear of ‘run ins’ with the law.

ACCC expressed surprise that Telstra’s $30 application worked out to be higher than the previous proposal of $30 for metropolitan areas, which was rejected in 2006.

Charge not reasonable

ACCC Chairman, Graeme Samuel, said following an extensive assessment of Telstra’s application ACCC was not satisfied the $30 charge for metropolitan areas is reasonable.

ACCC believes that Telstra’s proposed price is unlikely to promote competition in the broadband and telephony markets. It may also discourage investment in telecommunications infrastructure. ACCC also considers that a $30 monthly charge would result in Telstra recovering more than is necessary to promote its legitimate business interest in providing this service,” Mr Samuel said.

In rejecting the undertaking, ACCC also noted Telstra’s proposed monthly charge was significantly above estimates derived from benchmarking against comparable countries.

Three strikes

This is the fourth time Telstra has submitted applications in regards to the ULLS service. One application was withdrawn while three have now been rejected by ACCC because they could not be satisfied that the undertakings were reasonable.  The two previous rejections were affirmed by the Australian Competition Tribunal on appeal.

The next move is with Telstra, one can only assume that being effectively sidelined in the Government’s NBN construction process, has prompted them to take an tough approach against their competitors who in the absence of the NBN rely on the ULL for service delivery for the short to medium term.

Over recent weeks, many reports have emerged of the ACMA internet filtering trial black list having been published on different websites, potentially compromising the Government’s current internet filtering trials. One such website was www.Wikileaks.de.

Wikileaks had been known for its collection of leaked documents, which in most cases lead to great controversy.  According to ARS Technica:

Wikileaks has built up an impressive portfolio of leaked documents like those from secretive religious organizations, congressional reports, specs for military hardware capable of jamming IEDs used by insurgents in Iraq, and even its own donors list. In doing so, it has found few friends in governments and courts, with one judge even ordering its DNS record be erased after documents from Swiss Bank Julius Baer were uploaded to the site.

ARS Technica have also reported that German police raided the residence of the domain name registrant Theodor Reppe of Dresden, Germany who denies any involvement in the posting of leaked documents. It is reported that the raids came shortly after the ACMA blacklist was published. It is unknown at this stage, what involvement if any, ACMA had in closing down this website.

Wikileaks.de now resolves to a generic DENIC page. Despite the action taken by DENIC another mirror site, which is hosted on an alternate TLD, still shows links to different versions of what they claim is the secret ACMA black list.

The report is a good opportunity to review what’s required of CSPs by the Telecommunications Consumer Protections Code.

According to the TIO, by category there were a number of complaint trends outlined below:

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 figures seem to indicate some concerning issues around complaint handling by ISPs and Telcos, with increases across internet services, land lines and mobile services.

This information carries even more significance in the fact that the TIO has indicated that it intends to remind its members of their obligations under the Telecommunications Consumer Protections Code C628:2007.

It is a good opportunity to remind ourselves of the obligations imposed by clause 9 of the TCP Code.

The key to clause 9 is effectively:

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

It is also important to note that clause 9.1.4 of the TCP Code also requires 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 not only prompt the TIO to make adverse findings, but the ACMA may also intervene by issuing formal directions or taking other enforcement action.

The warning comes after disputes were alleged to have remained unresolved, as a consequence of this ISP’s refusal to comply with the TIO Scheme.

According to ACMA:

The TIO referred this matter to ACMA because Bytecard had failed to cooperate with the TIO in relation to two continuing matters. Both the TIO and ACMA have made attempts to encourage Bytecard to voluntarily comply with the TIO Scheme, without success.

ACMA’s power to direct compliance

Part 6 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 imposes obligations on Carriers and CSPs (who are referred to as eligible carriage service providers, as defined by s127) to:

1. Enter into the TIO Scheme; and
2. Comply with the TIO Scheme.

Eligible carriage service providers are defined by s127 as:

(a) a carriage service provider who supplies:

(i) a standard telephone service, where any of the customers are residential customers or small business customers; or

(ii) a public mobile telecommunications service; or

(iii) a carriage service that enables end users to access the Internet; or

(b) a carriage service intermediary who arranges for the supply of a service referred to in subparagraph (a)(i), (ii) or (iii).

In this instance, ACMA’s formal warning came about because of the alleged failure of ByteCard (who is an eligible carriage service provider) to comply withe TIO Scheme in breach of Part 6 of the Act.

We have previously examined issues with the TIO Scheme and frustrations that some CSPs encounter, but the law is the law, unless a CSP is exempt (under s129) they must comply with their obligations under Part 6.

Last week we reported on an announcement by ACCC Chairman Graeme Samuels, that the ACCC would be taking action unless the Premium Service operators cleaned up their act. Today we have been contacted by a reader who has alerted us to a new scam one shonky operator is using.

Our reader received an SMS which said something along the lines of “who are you, and why did you call me“, of course our reader had no idea who the SMS was from, and thought to himself, ‘who could this be, I don’t recall ringing a wrong number’.

As it is with most of us, curiosity got the better of him, so he replied to say that the sender must have the wrong number, and that they must be mistaken.

Immediately after his reply, he was subscribed to an adult chat service, at which time he was informed that to unsubscribe he would need to reply with the word ‘STOP’. Before he could do this, he had received 2 SMS, no doubt at the bargain basement price of $4 each.

This conduct is clearly misleading and deceptive, and is precisely why the ACCC have been alerted to the actions of some shonky operators.

If you have been subject to a similar scam, please let us know, we are sure Mr Samuels would be interested to hear from us.

ACMA have reported that Westpac was issued with a formal warning for breaches of the Do Not Call Register Act 2006 (‘the Act’).

ACMA reported that Westpac was the bank that had the greatest number of complaints made against it to ACMA, concerning alleged breaches of the the Act.  ACMA claim that although Westpac had a relationship with its customers, ‘its procedures for recording the withdrawal of consent had failed.’

Westpac was reported to have agreed to and implemented a number of measures to resolve the issue including ‘washing’ their call lists against the Do Not Call Register.

ACMA’s report that they have had a total of 40,000 complaints since May 2007 concerning the Act, and noted a significant drop in the number of complaints from 2007 to the end of 2008.  This is no doubt in part to increasing awareness, and availability of tools to assist in compliance.

This serves as a timely reminder for ISPs and Telcos, particularly now that many utilise the services of overseas call centres.  Section 9 of the Act makes it clear that just because a call centre is located overseas it doesn’t prevent the application of the Act.

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.

The team at CSP Central, and some of our readers recently received an emergency communication from the Victoria Police, which 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 will in our view play an effective role in undertaking mass communication in cases of emergency such as bushfire or flood.

We don’t yet know what the result of these trials will be, but the Europeans have developed an alternate approach to the issue of protecting children from harmful content online.

Yesterday was Safer Internet Day across the European Union. The European Commission has developed the Safe Internet Programme which has a budget of 55 million Euros, and which has been running since 2004.  According to its website, the programme is aimed at promoting:

safer use of the Internet and new online technologies, particularly for children, and to fight against illegal content and content unwanted by the end-user, as part of a coherent approach by the European Union

It aims to do this by co-funding projects to :

• Increase public awareness;

• Provide the public with a network of contact points for reporting illegal and harmful content and conduct, in particular on child sexual abuse material, grooming and cyber bullying;

• Foster self-regulatory initiatives in this field and involve children in creating a safer online environment;

• Establish a knowledge base on new trends in the use of online technologies and their consequences for children’s lives.

What makes this programme impressive in our view is that it takes a cooperative and educational approach rather than an imposed approach upon website operators. This year’s theme was protection of children on social networking sites such as Facebook, Myspace and You Tube. This cooperative approach has seen 17 of the leading social networking sites across the internet commit doing more to protect younger internet users.

Is this the magic bullet we have been looking for in Australia ?; Well, no it’s not. Does it have deficiencies ?; yes it does, but at least it is a different approach, and may help contribute to the debate on internet filtering and other steps that can be taken to protect children online.

Maybe the Government should look harder at alternatives to internet filtering, they do exist.