EXPLANATORY STATEMENT

Telecommunications Act 1997

CARRIER LICENCE CONDITIONS (TELSTRA CORPORATION LIMITED) DECLARATION 1997 (AMENDMENT NO. 4 OF 2002)

Issued by the authority of the Minister for Communications,

 Information Technology and the Arts

The Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment No. 4 of 2002) (the Amending Declaration) amends the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (the Original Declaration) to establish the Network Reliability Framework (NRF).  The NRF is a three-tier framework to improve the reliability of Telstra’s telephone services at both the network and individual levels.

Subsection 63(3) of the Telecommunications Act 1997 (Cth) (the Act) enables licence conditions to be imposed on a particular carrier.  The Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 was made on 24 June 1997 in reliance on this provision and came into force on 1 July 1997.  The original Telstra licence conditions have since been varied by a number of declarations.

The Amending Declaration has been made under subsection 63(5) of the Act.  Subsection 63(5) of the Act enables the Minister, by written instrument, to vary an instrument under subsection 63(3) of the Act.  Subsection 63(13) of the Act provides that an instrument under subsection 63(5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 (Cth).

Section 68 of the Act provides that a carrier must not contravene a condition of its carrier licence.  In the event of a contravention of a carrier’s licence conditions:

(a)                section 69 of the Act enables the Australian Communications Authority (ACA) to give a carrier a remedial direction aimed at ensuring that the carrier does not contravene its licence conditions in future;
 

(b)               section 70 of the Act enables the ACA to issue a formal warning to a carrier in relation to the contravention; and
 

(c)                Part 31 of the Act enables the Minister or the ACA to institute proceedings in the Federal Court for the recovery of a pecuniary penalty of up to $10 million for each contravention.
 

Section 64 of the Telecommunications Act 1997 (Cth) provides that before making an instrument under subsection 63(5) the Minister must arrange for a draft version of the instrument to be provided to the licence holder and invite the holder to make a submission to the Minister on the draft.  Telstra has made a submission on the draft which has been considered.  A number of the views expressed in Telstra’s submission have been incorporated in the Amending Declaration.

The Amending Declaration has two parts.  These are the Amending Declaration itself, which provides for the amendment of the Original Declaration and Schedule 1 to the Amending Declaration, which contains five new clauses (cls. 24, 25, 26, 27 and 28) for inclusion as Telstra licence conditions.

The Amending Declaration provides for new licence conditions to apply to Telstra Corporation Limited in its capacity as the main provider of telephone services in Australia.

The purpose of the new licence conditions is to:

• improve consumer awareness of overall service reliability, nationally and regionally;
• improve the operation of poorly performing parts of, and services in, the Telstra telephone network, particularly in regional and rural Australia;
• improve community confidence in reliability of the customer access network; and
• empower the ACA to enforce reliability and remediation requirements where warranted.

The NRF has been developed in response to the findings and recommendations of the Telecommunications Service Inquiry (TSI) in its 2000 report, Connecting Australia.

A key issue identified by the TSI was the occurrence of high fault levels and multiple faults on telephone services in some parts of Telstra’s network.  In this context the TSI, in Recommendation 11, recommended:

That the Australian Communications Authority be required to monitor fault rates in any universal service provider's network at a highly disaggregated level (at least at the ‘distribution area’ level in Telstra’s network) to identify reliability problems.  The Australian Communications Authority should be empowered to direct a universal service provider to take specific action to address identified reliability issue.

Similar concerns about fault levels were expressed by the Regional Telecommunications Inquiry (RTI), which reported to the Government on 8 November 2002.  The RTI considered the NRF would prove to be important in improving service reliability.

The NRF was developed by the ACA at the request of the Minister in response to TSI Recommendation 11.  The NRF is based on the ACA’s report, ACA Monitoring and Reporting Framework for USO Service Reliability,[1] released publicly in July 2002.  There are, however, some differences between the ACA’s proposed approach and that given actual effect in the Amending Declaration.  For example, the Amending Declaration provides much greater detail in relation to data requirements and timeframes.

The NRF addresses reliability issues by requiring Telstra (which is the universal service provider and the main supplier of telephone services in Australia) to monitor and report to the ACA on fault levels, take pre-emptive action where faults levels threaten to exceed specified levels, and require Telstra to undertake remedial action where those thresholds are exceeded.  The NRF operates at three levels: the field service area (FSA), the exchange area service (ESA) and the individual service.  Telstra has 44 FSAs and around 5,000 ESAs.  At the individual service level the NRF applies to around 7.7 million individual residential and small business services covered by the Customer Service Guarantee (CSG).

The first tier of the framework measures the percentage of services with no faults or service difficulties at the FSA level and the average percentage availability of services by FSA.  The information collected under this tier must be reported to the ACA and published regularly. 

Under the second tier of the framework, Telstra will advise the ACA, on a monthly basis, of all ESAs where more than a specified number of services, varying with the size of the ESA, which had at least one fault per month for two consecutive months.  At this level, the ACA will be empowered to require Telstra to take remediation action to reduce the occurrence of faults or service difficulties in all or part of an ESA. 

Under the third tier of the framework, Telstra will be required to take pre-emptive action to ensure that fault levels for each CSG service do not exceed more than three (four or more) faults in a rolling 60-day period, and, more than four (five or more) faults in a rolling 365-day period.  Where the thresholds are exceeded, Telstra will be required to investigate and remedy the CSG service, subject to ACA oversight.

General comments in relation to drafting

The Amending Declaration aims to provide clear guidance for Telstra and the ACA on the bedrock operation of the NRF, while at the same time providing scope for the NRF to evolve in light of operational experience.  Accordingly, the Amending Declaration is prescriptive in relation to many requirements (eg. information to be provided and timeframes).  At the same time, however, the ACA is given discretion to vary some requirements, seek additional information and agree to other timeframes.

As a matter of administrative law, the ACA will be required to exercise the powers conferred upon it by the Amending Declaration in a manner that is reasonable.

Notes on the Clauses

Clause 1 – Name of Declaration

Clause 1 provides for the citation of the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment No. 4 of 2002).

Clause 2 – Commencement

Clause 2 provides that the Amending Declaration commences on gazettal.  Under the Schedule the NRF itself has effect from 1 January 2003 on a prospective basis.  That is, the occurrence of faults will need to be monitored and follow-up action will need to be taken from 1 January 2003 onwards. The NRF will not directly take into account faults occurring before 1 January 2003, although such faults may receive consideration in the event the ACA undertakes an investigation.

Clause 3 – Amendment of the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997

Clause 3 provides that the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 is amended as set out in Schedule 1 to the Amending Declaration.

Schedule 1

Item 1 of Schedule 1 inserts new clauses 24 to 28 in the Original Declaration.  Each new clause is discussed in turn.

Clause 24 – Network Reliability Framework - Definitions

Clause 24 sets out key definitions used in the new clauses provided for in Schedule 1.

Tier 3 of the NRF applies to ‘CSG services’.  These are telephone services provided by Telstra to residential and small business customers with one to five services. 

The definition of ‘CSG service’ is based on the definition of that term, and its scope, under the ACA’s Telecommunications (Customer Service Guarantee) Standard 2000 (No. 2) (the CSG Standard).  It is intended that the telephone services covered by the third tier of the NRF be the same as those covered by the CSG Standard as the NRF makes use of data collected for CSG purposes.

Under the CSG Standard a 'CSG service' is defined as an ‘eligible telephone service’ supplied by a carriage service provider (including a reseller) to a customer of the provider.  Public mobile telecommunications services, designated basic rate ISDN services, and satellite services are excluded from the definition unless supplied, or offered to be supplied, in fulfilment of the universal service obligation specified in paragraph 9(1)(a) of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which requires standard telephone services to be reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business).  Telstra advises that basic rate ISDN services are not provided in fulfilment of the universal service obligation, and as such they would not be covered by the NRF.

An 'eligible telephone service' is defined in the CSG Standard as a standard telephone service or a carriage service that would be a standard telephone service but for the fact that it is used for a purpose other than the purpose specified in paragraph 6(1)(a) or (b) of the Telecommunications (Consumer Protection and Service Standards) Act 1999ie. the purpose of voice telephony or an equivalent purpose for disabled end-users.  Read together, the definitions of ‘CSG service’ and ‘eligible telephone service’ in the CSG Standard are intended to ensure that the CSG Standard applies to a voice grade service, although the service may be used by the customer for other purposes.

The definition of ‘CSG service’ in the Amending Declaration excludes services the supply of which is exempt from compliance with the CSG performance standards under section 19 of the CSG Standard.  This exemption applies to the services of a customer with more than five services and effectively limits the CSG - and NRF - to residential and small business customers.

The definition of ‘ESA’ in the Amending Declaration means a Telstra exchange service area.  There are approximately 5,000 ESAs in Telstra’s network, which are subject to variation over time.  The ESAs are specified in Attachment 7A to the Telstra Public Switched Telephone Service section of Telstra’s Standard Form of Agreement.

The definition of a ‘fault or service difficulty’ also has the same meaning as in the CSG Standard.  Under the CSG Standard ‘fault or service difficulty’ in relation to a specified service, means:

(a) the absence of dial tone or ring tone; or

(b) inability to make or receive calls; or

(c) disruption to communications because of excessive interference levels; or

(d) the repetition of service cut offs; or

(e) another condition that makes the service wholly or partly unusable; or

(f) in the case of an enhanced call handling feature—if the feature is not operative.

It is understood that that a ‘fault’ refers to a service being wholly unusable, while in the case of a ‘service difficulty’ a service may be partially useable.

‘FSA’ refers to Telstra’s field service areas as at 21 November 2002.  FSAs are large operational Telstra business units.  At 21 November 2002, Telstra had 44 FSAs across Australia A list of these FSAs is at Attachment A.  These FSAs will be used for reporting purposes, thereby providing a consistent basis for comparison over time.  The list is not intended to prevent Telstra changing its operational FSAs over time and Telstra’s operational FSAs may vary from those in the list.  As FSAs may change over time,   Paragraph (b) allows the FSAs for NRF reporting purposes to be varied on the written agreement of Telstra and the ACA.

The definition of a ‘geographical locator’ in the Amending Declaration refers to the mechanism used by Telstra staff to identify the location of a service, being;

(a)   in the case of a CSG service, the location in Telstra’s database; and

(b)   in the case of an ESA, the ESA code which is a four letter abbreviation for an ESA. 

‘Remediation’ refers to work over and above that normally undertaken in relation to fixing a specific fault.  As such ‘remediation’ is distinguished from ‘rectification’.  As the NRF is targeting recurrent faults, there is an assumption that recurrent faults often occur due to a failure to address their root cause.  That is, recurrent faults may be repeatedly fixed without addressing their real cause.  Remedying a service will involve work to address systemic problems with a service (eg. the root cause of recurrent problems) with a view to improving the overall reliability of the service and eliminating recurrent faults.

Clause 25 – Monitoring and reporting at the Field Service Area (FSA) level

Clause 25 gives effect to the first tier of NRF, the purpose of which is to provide the public with useful and recent information regarding the reliability of telephone services nationally and in different regions within Australia.

Subclause (1) requires Telstra to report to the ACA on a monthly basis on:

• the percentage of CSG services free from faults or service difficulties nationally and in each FSA; and
• the average availability (in terms of time) of CSG services nationally and in each FSA.

Supporting data is further required to enable the ACA to collate trend information over an extended period of time.  The supporting data provided should be developed by Telstra in consultation with the ACA under clause 28.  It is envisaged that supporting data will include total numbers of CSG services, numbers of CSG services that have a fault or service difficulty for the preceding calendar month as well as a summation of the times required (in hours) to repair each fault or service difficulty in the preceding calendar month as measured from the time of the fault report to repair of the fault.  Access to supporting data will enable the ACA to verify percentage reports by Telstra and undertake further analysis, for example, on average performance in aggregated regions or specific periods.

Subclause (2) requires Telstra to publish the information provided to the ACA under subclause (1) within 20 working days of the end of the calendar month or such other timeframe as the ACA agrees in writing.  The requirement that this information be published on a monthly basis is designed to provide consumers with up-to-date information about service reliability in their region and nationally, as well allowing consumers to view comparative information regarding service levels in other regions.  The first report made available by Telstra to the public should occur no later than 28 February 2003.

Paragraph (2)(b) enables the ACA to independently publish the information provided by Telstra under subclause (1).  This will provide the public with a possible alternative source of information about performance in their area.  More importantly, it also enables the ACA to publish the data in conjunction with other performance data it collects (eg. for its quarterly Telecommunications Performance Monitoring Bulletin), enabling it to provide a more holistic picture of Telstra’s performance.

The ability of the ACA to publish the data will also enable it to make available to the public historical and comparative analyses of Telstra’s reliability performance, for example:

• the performance of different FSAs in a particular month;
• the performance of one or more FSAs over time; and
• the performance of FSAs relative to national performance.

Subclause (3) provides that Telstra must implement procedures to enable compliance with this clause as soon as practicable or no later than 1 January 2003.  Telstra’s first report under clause 25 must cover the month of January 2003.  That is, these arrangements are to have effect prospectively from 1 January 2003, with the first report being for January 2003. 

Clause 26 – Monitoring, remediation and reporting at the Exchange Service Area (ESA) level

Clause 26 gives effect to the second tier of NRF, the purpose of which is to facilitate the identification of poorly performing ESAs by the ACA, and to provide a mechanism by which the ACA may request Telstra to take remediation action in those ESAs in full or in part.

Subclause (1) requires Telstra to provide the ACA with information in respect of ESAs identified under paragraph (1)(a).  Paragraphs (1)(a) to (f) specify the information Telstra is required to provide in respect of each ESA.  As the information required under paragraph 1(f) is more detailed and time-consuming to prepare, the ACA is able, if it chooses, to waive the requirement that Telstra provide information under paragraph 1(f). 

Paragraph 1(a) is particularly important as it includes the formula that is used to identify poorly performing ESAs, these being ESAs in which ‘x’ CSG services had at least one fault or service difficulty in each of the two preceding calendar months.  The value of ‘x’ is defined in subclause (2) and depends on the total number of CSG services in the ESA.  For example, if an ESA has 1 to 100 services ‘x’ is two or more.  Therefore, if an ESA with 70 CSG services had two or more services which experienced one or more faults or service difficulties in each of the two preceding months, then it would be reported to the ACA.

Subclause (2) provides the ‘x’ factors used to identify those ESAs which Telstra should report to the ACA on under subclause (1).  As the size of ESAs vary considerably, the factors used to identify ESAs vary with the size of the ESAs.

Subclause (3) requires Telstra to provide the ACA with further information in respect of an ESA identified under this clause, if requested to do so.  This subclause will allow the ACA to obtain further information as it reasonably requires to aid its investigation into whether an ESA requires remediation. 

Subclause (4) requires Telstra to submit a remediation plan in respect of all or part of an ESA identified under this clause, where, after consultation by the ACA, the ACA notifies Telstra that it must take remediation action in the ESA.  A notice issued by the ACA under this subclause must be in writing and provide Telstra with the reasons as to why Telstra should undertake remediation action to reduce the occurrence of fault or service difficulties.  As the default, the plan must be provided in 20 working days, but the ACA may agree to another timeframe. 

As it is not intended that the ACA ‘micro-manage’ Telstra’s operations, the ACA must consult with Telstra prior to issuing a notice for remediation under this subclause.  This will require the ACA to consider views put by Telstra as to the need for, and nature of, any remediation action.

Subclause (4) further provides that where the ACA issues a notice for remediation action, Telstra must submit a remediation plan which includes timeframes for the expected completion of action proposed.  While the plan must be in accordance with the ACA’s notice, it is intended that the ACA’s notice be reasonably broad in nature, rather than prescriptive.  It should set out the objectives of the remediation of all or part of the ESA, rather than exactly what Telstra should do and how it should go about it.  The method of remediation is first and foremost a matter for the service provider, rather than the regulator.

In the event that the ACA is not satisfied with the remediation proposed by Telstra, it would be able to raise its concerns with Telstra.  If necessary, the ACA could raises the possibility of further regulatory action with the Minister.

Subclause (5) requires Telstra to demonstrate to the ACA’s satisfaction that all remediation work has been completed as specified in the plan, including adherence to timeframes proposed or agreed in writing with the ACA.  Operationally, subclause (5) is important because it requires Telstra to complete its remediation plan.

Unforeseeable or unusual events may occur which may impact on Telstra’s ability to meet timeframes forecast in a remediation plan.  In such circumstances, Telstra may request that the ACA agree to an extension of the proposed timeframe.   What is needed to satisfy the ACA that all remediation work has been completed will vary depending on the complexity of the remediation plan.  At a minimum, a report from Telstra confirming the completion of the remediation would be expected.  Further verification would be a matter for the ACA.  Subsequent reporting on the performance of the remedied area is required under subclause (6).

Subclause (6) requires Telstra to report to the ACA on the subsequent performance of all or part of an ESA that is remedied under this clause.  Telstra will report to the ACA the subsequent occurrence of faults or service difficulties in the area remedied. As the default, reporting is quarterly for a period of 12 months.  The ACA may agree to a different period.  Telstra may request the ACA to agree to a reduction or extension of the timeframe for reporting under this subclause as appropriate.  For instance, should no faults be reported for a reasonable period, Telstra may request the ACA to agree to remove the requirement for monitoring and reporting of a particular area under this subclause.  Under subclause (7) the period can be extended a further 12 months.

Subclause (7) allows the ACA, after consultation with Telstra, to require Telstra to provide follow-up reports on remedied ESAs as provided for in subclause (6) for a further 12 months.  This might occur, for example, if the ACA remains concerned about the performance of an ESA.  Remedied ESAs will also continue to be subject to general monitoring and reporting under this clause and any renewed poor performance will also be picked up in this way.

Subclause (8) requires Telstra to comply with an ACA request under subclause (7) for further follow-up reports.

Subclause (9) requires Telstra to provide information to the ACA, for publication by the ACA, on any remediation plans not undertaken in accordance with Telstra’s proposals under subclause (4).  The publication of such non-compliance is intended to provide an incentive for Telstra to adhere to its plans and to inform the public of progress (or otherwise) in remedying services.  The ACA has discretion to publish the information provided under this subclause and must take into account any views expressed by Telstra about publication of the information.  For example, matters that arise in the course of remediation work or circumstances beyond the control of Telstra may prevent strict adherence to a remediation plan and, on balance, the ACA may decide that the publication of such information would be misleading or may create an unfair public perception of Telstra’s performance.  Subclause (9) is not intended, however, to negate Telstra’s obligation to adhere to the requirement to complete a remediation plan as set out in subclause (5).

Subclause (10) provides that Telstra must implement procedures to enable compliance with this clause as soon as practicable or no later than 1 January 2003.  Telstra’s first report under clause 25 must cover the months of January and February 2003.  That is, these arrangements are to have effect prospectively from 1 January 2003.  As clause 25 operates on a two-month basis, the first report to the ACA will be for January-February 2003. 

Clause 27 – Monitoring, prevention, remediation and reporting at the CSG service level

Clause 27 gives effect to the third tier of NRF, the purpose of which is to prevent individual CSG services experiencing high numbers of faults and service difficulties and to require the remediation of individual CSG services where they do experience high recurrent fault levels.  Under clause 27, Telstra is required to take pre-emptive action to prevent multiple faults from occurring.  If fault levels fall below specified levels, investigation and remediation must be undertaken by Telstra, and will be subject to the oversight of the ACA.

Clause 27 operates at two main levels.  First, it requires Telstra to take reasonable action to prevent multiple faults on individual CSG services (subclauses (1) and (2)).  Second, it requires investigation and, if appropriate, remediation, where the multiple fault levels specified in subclauses (1) and (2) are breached (subclauses (3) and (11)). 

Subclause (1) requires Telstra to take such reasonable action as is necessary to prevent a CSG service from experiencing more than three faults or services difficulties in a rolling 60 calendar day period.  This targets a high number of faults in a reasonably short period.  It would capture the circumstance, for example, where a service experienced two faults in two consecutive calendar months, say January and February.   If the ACA were satisfied Telstra was not taking such reasonable action as was necessary to prevent such occurrences, it would be open to the ACA to take enforcement action in relation to this requirement.

Subclause (2) complements subclause (1) and requires Telstra to take such reasonable action as is necessary to prevent a CSG service from experiencing more than four faults or services difficulties in a rolling 365 calendar day period.  This targets a slightly higher number of faults over an extended period.  It would capture the circumstance, for example, where a service experienced one fault in five different months in a consecutive twelve month period, say January, June, September, November and December.   If the ACA were satisfied Telstra was not taking such reasonable action as was necessary to prevent such occurrences, it would be open to the ACA to take enforcement action in relation to this requirement.

The purpose of subclauses (1) and (2) is to encourage Telstra to take such pre‑emptive action as is necessary and reasonable to ensure that individual service levels do not fall below the levels specified. 

Subclause (3) provides that where a fault level specified in subclause (1) or (2) is breached, the Telstra must investigate the performance of the CSG service concerned and undertake remediation of the service as necessary.  This is a key operational provision.

In addition to the requirement provided for in subclause (3), subclause (4) requires Telstra report a contravention of the service levels in subclauses (1) and (2) to the ACA within 15 working days of the contravention, providing specific information relating to the CSG service.  The specific information required is set out in paragraphs (a) to (j).  It will identify the service in question, inform the ACA of the remediation Telstra has taken or proposes to take in relation to the services, and enable the ACA to assess the appropriateness of that remediation action.  Access to the fault history of the service is important in this regard.  If necessary the ACA may request further information under subclause (5).  The ACA also has statutory information gathering powers under Part 27 of the Act. Despite the requirement that Telstra submit a remediation plan within 15 working days, subclause (4) is not intended to delay Telstra taking action independently to remedy a service.

The requirement for a report within 15 working days is intended to ensure that the ACA is informed within a reasonable timeframe of a breach so that it can assess follow-up action in an equally reasonable timeframe.  By contrast, reports of breaches 15 working days after the end of each calendar month, for example, could mean a service in breach of the levels is not reported for almost 7 weeks.

Nevertheless, the requirement that Telstra provide a report within 15 working days of a contravention is potentially onerous in that it could mean daily reports to the ACA if contraventions occur on a daily basis.  Whether this is the case will depend on the incidence of contraventions.  In its report, based on data for 2001, the ACA estimated there may be 50 contraventions per month under subclause (1) and perhaps 1,400 contraventions under subclause (2) per annum.  Another consideration is that the 15 working day timeframe would actually allow some aggregation of reporting, for example, reporting on a weekly or fortnightly basis.  Given the potential reporting burden that may arise in this area, this is a matter that will be monitored closely.  It is expected that if the reporting burden proves excessive, the ACA would look to varying the timeframe for reports as provided for under subclause 27(4).

Subclause (5) requires Telstra to provide the ACA with additional information in respect of a CSG service identified under this clause if requested to do so.  This will enable the ACA to seek additional information if circumstances indicate it is useful.  One example could be additional fault history information.  The ACA will need to act reasonably in requesting additional information.  Amongst other things the ACA would be expected to consider the usefulness of the information relative to the cost to Telstra is providing it.

Subclause (6) subjects Telstra’s proposed remediation action under subclause (4) in relation to a CSG service to the agreement of the ACA.  The ACA may either agree or refuse to agree to the proposed action.  This subclause is not intended to delay the remediation of a faulty service.  Nor is it intended that the ACA unnecessarily delay a decision by repeatedly requesting further information.  Subclause (7) effectively limits the ACA’s period to make a decision on remediation action to 10 working days.

If the ACA neither agrees nor refuses to agree to a remediation plan submitted by Telstra, for example, by not responding to a plan, subclause (7) provides that the ACA will be taken to have agreed to the proposal after a period of 10 working days from provision of the remediation plan or any further information requested under subclause (5). 

If the ACA refuses to agree to a remediation plan, under subclause (8) it must provide Telstra with written notice of the refusal and the reasons for the decision.  The ACA is expected to consult with Telstra prior to refusing to agree to a remediation plan under this subclause.  The reasons provided by the ACA should detail any deficiencies in the plan, thus allowing Telstra to review the proposed remediation action with a view to addressing such deficiencies.

If the ACA refuses to agree to a proposed remediation plan, subclause (9) requires Telstra to review the plan (paragraph 9(a)) and to submit a revised proposal for remediation within a set period of receiving a notice under subclause (8) (paragraph 9(b)). 

Subclause (10) makes it clear that a revised proposal prepared under paragraph 9(b) is subject to the same ACA agreement process as the original proposal.

Subclauses (6) to (10) are not intended to allow the ACA to ‘micro manage’ Telstra, but to allow the ACA to exercise a reasonable degree of scrutiny in relation to the remediation of services which have contravened the service levels specified.  As with ESA remediation, it is expected ACA intervention will be directed towards service outcomes rather than the specific means by which they are achieved.   

Subclause (11) requires Telstra to complete the remediation that the ACA has agreed to, or deemed to have agreed to, and to demonstrate to the ACA’s satisfaction that all remediation work has been completed as specified in the plan as agreed to by the ACA, including adherence to the timeframes proposed.  This is a key operational provision in that it requires Telstra to complete its remediation action. What is needed to satisfy the ACA that all remediation work has been completed will vary depending on the complexity of the remediation plan.  At a minimum a report from Telstra confirming the completion of the remediation would be expected.  Further verification would be a matter for the ACA.  Subsequent reporting on the performance of remedied CSG services is required under subclause (12).

Subclause (12) requires Telstra to provide information to the ACA, for publication by the ACA, on any remediation action not undertaken in accordance with Telstra’s proposals agreed to by the ACA under subclause (6) or (7).  The publication of such non-compliance is intended to provide an incentive for Telstra to adhere to its proposals and to inform the public of progress (or otherwise) in remedying services.  The ACA has a discretion to publish the information provided under this subclause and must take into account any views expressed by Telstra about publication of the information.  For example, matters that arise in the course of remediation work or circumstances beyond the control of Telstra may prevent strict adherence to a remediation plan and, on balance, the ACA may decide that the publication of such information would be misleading or may create an unfair public perception of Telstra’s performance.  Subclause (12) is not intended, however, to negate Telstra’s obligation to adhere to the requirement to complete a remediation plan as set out in subclause (11).

As the information provided under subclause (12) will relate to the telephone services of individuals, the ACA needs to have regard to its legal obligations in relation to the protection of privacy.  Should the ACA choose to exercise its discretion to publish CSG service information, it is envisaged that it would be done in such a way that the individual details would not be made public (eg. references would be anonymous or data would be aggregated).

Subclause (13) requires Telstra to report to the ACA on the subsequent performance of CSG services remedied under this clause.  The intention is to ensure the remediation work undertaken has been successful and has raised the services’ reliability to a higher level.  As the default, reporting is quarterly for a period of 12 months.  The ACA may agree to a different period.  Telstra may request the ACA to agree to a reduction or extension of the timeframe for reporting under this subclause as appropriate.  For instance, should no faults be reported for a reasonable period, Telstra may request the ACA to agree to remove the requirement for monitoring and reporting of particular services under this subclause.  Under subclause (14) the reporting period can be extended a further 12 months by the ACA.

Subclause (14) allows the ACA, after consultation with Telstra, to require Telstra to provide follow-up reports on remedied CSG services as provided for in subclause (13) for a further 12 months.  This might occur, for example, if the ACA remains concerned about the performance of a service.  Remedied CSG services will also continue to be subject to general monitoring and reporting under this clause and any renewed poor performance will also be picked up in this way.

Subclause (15) requires Telstra to comply with an ACA request under subclause (14) for further follow-up reports.

Subclause (16) provides that Telstra must implement procedures to enable compliance with this clause as soon as practicable or no later than 1 January 2003. The obligation to take pre-emptive action to prevent recurrent faults under subclauses (1) and (2) and undertake remedial action will apply from 1 January 2003.  Whether Telstra needs to make reports to the ACA in January 2003 will depend on whether any CSG services exceeding the specified levels (in subclauses (1) or (2)) that month.

Clause 28 – Methodologies

This clause requires Telstra to develop the methodologies for preparing and verifying data for the purposes of clauses 25, 26 and 27 in consultation with the ACA.  The intention is to ensure the methodologies are transparent and acceptable to the ACA as the industry regulator.

ATTACHMENT A

[1] Available from http://www.aca.gov.au/consumer/uso/USO_servicereliability.pdf, accessed 26 November 2002 [What is the significance of the date of access?]