The jungle drums are sending negative messages about the new TCP Code proposed by Communications Alliance.  

What’s it all about?
In a nutshell, the Australian Communications and Media Authority has been calling for stronger telco consumer protections since it completed its ‘Reconnecting the Customer’ enquiry last year. In response, Communications Alliance developed an upgraded version of the current Telecommunications Consumer Protections Code, hoping it would be accepted and registered by ACMA. (That’s how industry codes become ‘legal’.)
But signs are appearing that ACMA might reject the new draft Code as being too soft … despite the fact that it is by far the most demanding code of its type that the industry has ever faced.

ACCC has its say
First, the Australian Competition and Consumer Commission lodged its own submission during the public exposure stage of the code process. In a blunt assessment, ACCC rated the new draft as too little, too late. The regulator was highly sceptical that any consumer protection system based on industry self-regulation would cure the ills that, as far as it and ACMA are concerned, plague the retail telco sector.

A knowing wink from The Age
On 8 January 2012, The Age newspaper ran a piece that reeked of a little inside information from ACMA. Nothing improper, we hasten to say, but the journo clearly has a strong feeling that the proposed new code is doomed.

So what would happen instead?
If the draft TCP Code is binned by ACMA, the authority will draft its own set of rules, called an Industry Standard. Obviously, it would make them even tougher than the proposed code, and the Standard would have the force of law under section 128 of the Telecommunications Act. Apart from other enforcement options, the Federal Court can impose penalties of $250,000 per contravention of an Industry Standard.

Good news and bad news
For telcos and ISPs that were dreading the burdens of the proposed new TCP Code, a delay in the introduction of new rules will be welcome. And an Industry Standard might omit some elements of the draft TCP Code. But overall, we have to assume that it would be significantly tougher on telco retailers than the draft code.

The ERR is used to determine each carrier’s proportionate liability to contribute to funding the Universal Service Obligation, and one late return holds up the whole exercise.

As ACMA Chairman Chris Chapman said at the time:

‘This court decision highlights that ACMA is comfortable with taking action in appropriate circumstances against carriers that fail to meet their regulatory responsibilities.’

CSP Central has previously backgrounded the return and its requirements.

Web Ace is the trading name of Jason Kenneth McKay of Perth, WA.  ACMA says that McKay has been extracting payments from customer credit cards without authority, and failing to refund.

The issue was first publicised on Whirlpool, the Australian internet users’ town square.  In May 2008, Whirlpool user ‘yabbitboy’ posted:

I am signed up to webace’s email only plan ( $60 a year ), I get unauthorized billings by webace 4 times already, 4*$60. I had contacted them by email – never got replied and also tried contacting them by phone – I do speak to them by person to person but they said they are ‘busy’ and say they will call me back which is *******.

ACMA has now used its power to direct McKay not to extract payments without issuing a bill and in accordance with customer authorisation.

Effect of an ACMA direction

We’ve explained before what an ACMA code compliance direction means.  Any further breaches by McKay could cost him $50,000 each.

So will McKay comply ?

As late as last Saturday, Whirlpool user ‘tudorose’ reported another unauthorised debit.  We’ll watch with interest to see whether the customers’ nightmare is really over.

Five of the respondents to the Federal Court action have failed to take necessary procedural steps, and the Court has agreed to ACMA’s application for default judgments.  After hearing evidence about the defaults and the original conduct, the Court has ordered:

• that parties including Mobilegate Ltd, Winning Bid Pty Ltd, Simon Anthony Owen, Tarek Andreas Salcedo and Glenn Christopher Maughan have breached the Spam Act and / or Trade Practices Act in various ways;
• that they be restrained from certain conduct, of the kind involved in the scam, for seven years; and
• the matter be re-listed for directions in relation to any penalty hearing as the above respondents on 18 September 2009.

The case against other respondents, who have defended the case, continues.

ACMA announced its biggest scalp yet under the new law, following an investigation into calls made by an offshore call centre on behalf of Telstra.  Inexplicably, Telstra allowed illegal calls to continue after ACMA had raised concerns based on several complaints.

“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.”

Telstra may be the biggest Do Not Call catch so far for ACMA, but it’s not the record penalty payer.  That ‘honour’ belongs to Dodo at $147,400.

If a telemarketer’s remaining ’annual’ subscription credits aren’t sufficient to pay for washing a submitted list in less than 12 months, they will have to buy a new ‘annual’ subscription before that list can be washed.  In that case, any unused credits from the first subscription will be rolled over into the second one.

ACMA has made the change because 90% of list washing ‘access seekers’ are already estimating their requirements pretty accurately.   If they keep doing that, the new block prepayments will usually cover a year’s use.  If not, access seekers may find their annual subscriptions aren’t actually annual.   Wonder what ACCC would make of a CSP that advertised an ‘annual’ fee that may or may not cover a year

Keep reading for the full table of rates, showing the comparison with 2008/09.

Do Not Call Register charges for list washing

The industry was already expecting the Mobile Premium Services Code, which was finalised a few months ago and will take effect on 1 July 2009.

But in a move ACMA hopes will be decisive, it has revealed three other weapons in the battle against shonky premium SMS outfits.
 
ACMA to make ‘service provider determinations’

Under section 99 of the Telecommunications Act 1997, ACMA can make ‘mini-laws’ for carriage service providers on a range of topics.  They’re called ‘service provider determinations’.  ACMA proposes to make three new rules.

‘Do not contract’ rule

A register of premium SMS content providers and aggregators will be established.  Obviously, the rules for listing on the register will be aimed at keeping the shonks out – especially the shadowy offshore operators.

ACMA’s rule will then ban mobile carriage service providers and aggregators from contracting with content providers and aggregators who are not on the register.

‘Do not bill’ rule

ACMA’s rule will ‘sin bin’ content providers and aggregators responsible for serious breaches of the Mobile Premium Services Code for a specified period.  They won’t be allowed to operate in the Australian market for their penalty period.

‘SMS barring’ rule

ACMA’s new rule will mandate universal ability for customers to bar premium SMS messages by July 2010.

Our take on it

This can work. 

Combined with the Mobile Premium Services Code and existing powers under the Spam Act and the Trade Practices Act, the new service provider determinations have the capacity to clean up the premium SMS industry.

We only hope the new determinations won’t contain loopholes that allow existing arrangements to continue or permit Australian mobile operators from continuing to collect for pariah operators in any circumstances.  If ACMA covers those issues, it’s a great job.

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.

We’ve previously poked ACMA’s eye about keeping its thoughts to itself too much, so it’s great to see a move towards a thorough, straight-talking booklet that offers detailed guidance on the regulator’s experience and how it sees things.

“The draft guidelines have been drawn from consultation with telemarketers who have implemented thorough and effective compliance systems, as well as experience gained through ACMA investigations into non-compliance. Put simply, ACMA has looked to industry for what does work, and has observed through its investigations what doesn’t work.”

We’ll certainly be reviewing the draft carefully and making a few suggestions. 

Comments and queries can be directed to robert(dot)urquhart(at)acma(dot)gov(dot)au.  Close date for comments is Friday 13 February 2009.

Clue … there’s a Communications Alliance Code that’s relevant, and a TIO policy.

 Answer

• Your main obligation is to try and get all current charges onto the current bill – see clause 6.5.4(a) of the Comms Alliance Telecommunications Consumer Protection Code.
• But the TCP Code does allow a CSP to bill charges up to 190 days after they were incurred by the customer – see clause 6.5.4(d) of the Code.
• White Pages directory charges are a special case.  They can be billed up to 220 days after the directory’s public closing date – clause 6.5.4(e) of the Code.
• And the TIO won’t necessarily argue with late charges for mobile roaming calls and international reverse charge calls.  According to its policy:

These types of calls are not limited to any backbilling period because the Australian carrier is unable to force a foreign carrier to bill for charges within the 190-day period. … When handling complaints that involve these exceptions, the TIO will judge each case on its merits.