Premium Service Determination 2004 (No. 1)

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2004B00457 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Telecommunications Regulations 2001

 

Premium Service Determination 2004 (No. 1)

 

Issued by the authority of the Minister for Communications,

Information Technology and the Arts

 

Overview

 

The purpose of this determination is to extend the power of the Australian Communications Authority (the ACA) under Regulation 3.12 of the Telecommunications Regulations 2001 (the Regulations) to enable it to make rules that apply to service providers that supply premium rate mobile services which will be supplied on the 19x number range and proprietary networks.

 

The Regulations enable the ACA to make rules in respect of such services, including rules relating to access to content supplied by such services and the billing of customers for such services.

 

Background

 

Section 99 of the Telecommunications Act 1997 (the Act) enables the ACA to make a written determination, known as a service provider determination, setting out rules that apply to service providers in relation to the supply of either or both of the following:

 

(a)                specified carriage services; and
 

(b)               specified content services.

 

Section 86 of the Act provides that, for the purposes of the Act, a service provider is either a carriage service provider or a content service provider.

 

The term ‘carriage service provider’ is defined in section 87 of the Act to include a person who supplies, or proposes to supply, a listed carriage service to the public using a network unit owned by one or more carriers or a network unit in relation to which a nominated carrier declaration is in force.

 

 The term ‘carriage service’ is defined in section 7 of the Act as a service for carrying communications by means of guided and/or unguided electromagnetic energy.  ‘Communications’ is defined widely in section 7 to include a communication in any form or combination of forms.  The reference to the carriage of communications by means of ‘guided electromagnetic energy’ includes the carriage of communications by means of a wire, cable, waveguide or other physical medium used, or for use, as a continuous artificial guide for or in connection with the carrying of the communication.  The reference to the carriage of communications by means of ‘unguided electromagnetic energy’ covers communications by means of radiocommunication.  The term ‘carriage service’ includes a fixed or mobile telephone service, an Internet service or an Intranet service.

 

A listed carriage service is defined in section 16 of the Act as a carriage service between 2 or more points, at least one of which is in Australia.  Section 88 of the Act sets out the circumstances in which a carriage service is taken to be supplied to the public by a carriage service provider.

 

The term ‘content service provider’ is defined in section 97 of the Act to mean a person who uses, or proposes to use, a listed carriage service to supply a content service to the public.  The term ‘content service’ is defined in section 15 of the Act to include an on-line service, a term which is not defined in the Act but is intended to bear its understood meaning in the telecommunications industry.  It will include an Internet or Intranet service that a person can access by way of a mobile phone.

 

Subsection 99(2) of the Act provides that the ACA must not make a service provider determination unless, among other things, the determination relates to a matter specified in the regulations.

 

Regulation 3.12(1) of the Regulations enables the ACA to make a service provider determination setting out rules that apply to service providers in relation to the supply of any of the following services:

 

(a)                a carriage service or content service using a number with a prefix starting with ‘190’;
 

(b)               a carriage service used to supply:

 

(i)                 a content service; or
 

(ii)               another service by way of a voice call (including a call that involves a recorded or synthetic voice);

 

using a number that includes an international access code;

 

(c) another carriage service or content service determined in writing by the Minister for the purposes of this paragraph.

 

The accompanying determination is made under paragraph 3.12(1)(c) of the Regulations.

 

Note on Clauses

 

Clause 1 – Name of Determination

 

Clause 1 provides that the accompanying determination is the Premium Service Determination 2004 (No. 1).

 

Clause 2 – Commencement

 

Clause 2 provides that the accompanying determination commences on gazettal.

 

Clause 3 – Definitions

 

Clause 3 sets out key definitions for the purposes of the accompanying determination. 

 

Clause 4 – Determination

 

Clause 4 provides that the following services are determined for the purposes of paragraph 3.12(1)(c) of the Regulations:

 

(a)                a carriage service supplied by way of a call to a number with an eligible prefix;
 

(b)               a content service supplied by way of a call to a number with an eligible prefix;
 

(c)                a public mobile telecommunications service that enables an end-user to access a proprietary network.

 

The ACA is proposing the release of short digit numbers with the 19 prefix to be used for the provision of certain premium services.  The numbers will be used for a variety of services, including short message services (SMS) and multi-media messaging services (MMS).  SMS is a service that enables the sending of person to person standard text messages and MMS is a service that enables the sending of person to person messaging including pictures and sound.  The release of such numbers is effected by the Telecommunications Numbering Plan 1997 made by the ACA under section 455 of the Act.

 

Premium SMS and MMS services will involve calls to a number with an ‘eligible prefix’, as defined in clause 3 of the determination.  Paragraphs 4(a) and (b) of the determination will ensure that the ACA’s service provider determination is able to set out rules in relation to premium SMS and MMS services.

 

Paragraph 4(c) of the determination will ensure that the ACA’s service provider determination is able to set out rules in relation to a proprietary network or walled garden through which an end-user is able to access services using a mobile phone and in relation to which a relevant customer of a mobile phone provider is charged.  An example of how proprietary networks work is as follows.  An end-user in possession of an appropriate mobile handset selects a pre-configured icon on their mobile screen.  This takes the end-user to a list of sites pre-selected by the carrier or carriage service provider supplying the mobile phone service.  The end-user may then select and enter a site.  Key features of this system include:

 

  • an end-user does not need to dial any number to connect to the proprietary network or walled garden;
     
  • a relevant customer of the carrier or carriage service provider is charged by the carrier or provider in relation to material accessed on the proprietary network or walled garden by the end-user; and
     
  • access to the material on the proprietary network or walled garden is not freely available to persons who are not customers of the carrier or carriage service provider.

Overview

The Telecommunications Regulations 2001 Premium Service Determination 2004 (No. 1) was enacted to address the need for regulation of premium rate mobile services supplied on the 19x number range and proprietary networks. Issued by the authority of the Minister for Communications, Information Technology and the Arts, this determination extends the powers of the Australian Communications Authority (ACA) under Regulation 3.12 of the Telecommunications Regulations 2001 to create rules governing service providers for these services. This includes rules about content access and customer billing. The policy objective is to ensure that the ACA can effectively regulate these premium services, protecting consumers and ensuring fair practices within the telecommunications industry.

Scope and Application

The Premium Service Determination 2004 (No. 1) extends the powers of the Australian Communications Authority (ACA) under Regulation 3.12 of the Telecommunications Regulations 2001 to create rules applicable to service providers who offer premium rate mobile services. These services include those supplied using the 19x number range and proprietary networks, such as those facilitating short message services (SMS) and multimedia messaging services (MMS). The determination applies to both carriage service providers and content service providers, including those offering services via fixed or mobile telephone, the Internet, or Intranet, and those using a listed carriage service to supply content services to the public. It ensures that the ACA can set rules regarding access to content and billing for such services, ensuring they are supplied in compliance with the Telecommunications Act 1997. The determination comes into effect upon gazettal, as per Clause 2, and is defined further by Clause 3, which includes terms like 'eligible prefix' and 'proprietary network'. The scope of the determination is national, impacting service providers across Australia, with any subordinate instruments issued under the ACA's authority further extending or restricting the application of these rules.

Key Provisions

The Premium Service Determination 2004 (No. 1) extends the Australian Communications Authority’s (ACA) regulatory power under the Telecommunications Regulations 2001. Specifically, it allows the ACA to make rules for service providers offering premium rate mobile services via the 19x number range and proprietary networks. This includes services such as premium SMS and MMS, as well as proprietary networks that users can access through their mobile phones, often referred to as "walled gardens". These rules can pertain to how content is accessed and how customers are billed for such services (Clause 4). Under this determination, service providers must adhere to the rules set by the ACA. For example, they must ensure that customers are properly informed about the charges for accessing premium services and proprietary networks. This includes clear disclosure of costs, which should be transparent to avoid any misleading or deceptive practices. Service providers also need to implement mechanisms for ensuring that customers are billed accurately for the services they use (Regulation 3.12(1)). Breaches of the rules set by the ACA under this determination can result in various consequences. The ACA has the authority to impose fines and penalties on non-compliant service providers. The exact penalties can vary depending on the severity and nature of the breach, but they are intended to ensure compliance with telecommunications laws and protect consumers from unfair practices. In some cases, repeated or serious breaches may lead to more severe penalties, including potential legal action against the service providers (Section 99(2) of the Telecommunications Act 1997).

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.