Explanatory Statement
Issued by the authority of the Minister for Communications
Telecommunications Act 1997
Telecommunications (Customer Communications for Outages Industry Standards) Direction 2024
Authority
The Telecommunications (Customer Communications for Outages Industry Standards) Direction 2024 (the Direction) is made by the Minister for Communications (the Minister) under subsection 125AA(4) of the Telecommunications Act 1997 (the Act).
Subsection 125AA(4) of the Act enables the Minister to direct the Australian Communications and Media Authority (ACMA) to determine an industry standard that applies to participants in a specified section of the telecommunications industry, and deals with one or more matters relating to the telecommunications activities of those participants.
Subsection 125AA(1) of the Act provides that the ACMA may, by legislative instrument, determine an industry standard that applies to participants in a particular section of the telecommunications industry, and deals with one or more matters relating to the telecommunications activities of those participants. Subsection 125AA(5) of the Act provides that the ACMA can only determine an industry standard under subsection 125AA(1) if directed to do so by the Minister.
Purpose and operation
This instrument directs the ACMA to make industry standards that deal with information to be provided, or made available, by carriers and carriage service providers relating to major outages or significant local outages that impact a telecommunications network used to supply carriage services to end-users.
This instrument is a legislative instrument for the purpose of the Legislation Act 2003. However, this instrument is not subject to disallowance or sunsetting, as it is a Direction by a Minister to a person or body (see item 2 of the table in section 9 and item 3 in the table in section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015).
Details of the Direction are set out in Attachment A.
Background
The Optus outage of 8 November 2023 had a significant impact on a wide range of Australians, affecting emergency services, government services, businesses and vulnerable people.
The Optus outage exposed the importance of customer communication during and in relation to outages. In particular, customers experienced delays in receiving advice or a detailed explanation about the cause and impact of the outage, or timeframes for rectification. Customers’ dissatisfaction with Optus’ communications and messaging during the outage was widely reported in the media and conveyed in submissions to the Post-Incident Review of the Optus outage of 8 November 2023, undertaken by Mr Richard Bean (Optus Outage Review) and in correspondence to the government.
Australians rely heavily on telecommunications services for health and safety, work, business activities, and education. The disruption that an outage brings to people's lives is understandably frustrating and there is a strong, and reasonable demand for service providers to communicate with customers in a timely manner about outages. This enables consumers to make alternative arrangements and helps alleviate the uncertainty that develops without this information.
There are currently no mandatory requirements for the way in which telecommunications providers communicate with customers in relation to outages. Industry Guideline - Emergency Communications Protocol (G663:2022) provides flexibility for individual providers to determine the level and methods of engagement, the timing and the types of information they communicate with customers and the public. The Guideline is not enforceable and currently, each provider has its own approach.
The Final Report into the Review of the Optus Outage recommended that the ACMA develop a standard or determination requiring carriers to communicate specific information to customers during and about outages – including an explicit focus on communications between the affected network provider and its customers as well as other stakeholders (Recommendation 10).
The Direction requires the ACMA to make industry standards under subsection 125AA(1) of the Act that deal with information to be provided by carriers and carriage service providers to end users regarding outages that impact a telecommunications network used to supply carriage services. The first industry standard required by subsection 5(1) concerns major outages and the second industry standard required by subsection 5(3) concerns significant local outages. While the instrument provides two separate directions in relation to major outages and significant local outages, it is open to the ACMA to establish a standard that deals with both categories, or two separate standards.
The Direction outlines the objectives that the industry standards must be drafted to achieve, including that communications with end-users during or in relation to a major outage or a significant local outage will be timely, up to date, and accessible through a mix of public and direct communication channels and identify methods for consumers to contact their provider in real-time or near real-time. Notifications will include important information including that the network is subject to an outage, estimated timing for rectification and notification when services have been restored. Further, the industry standards are to be drafted with the objective that carriers and carriage service providers share information about major or significant local outages with other carriers, carriage service providers and relevant stakeholders. In order to promote transparency and reduce uncertainty for consumers, providers’ processes for communicating with end users regarding major or significant local outages is to be publicly available and easily accessible.
The industry standard about major outages is to be determined by 14 November 2024 and commence in full by 31 December 2024 at the latest.
The industry standard about significant local outages is to be determined by 30 April 2025 and commence in full by 30 June 2025 at the latest.
Under the Act, compliance with industry standards is mandatory. A range of enforcement options apply to non-compliance with industry standards under the Act, including infringement notices and civil penalties.
Impact Analysis
The Office of Impact Analysis advised that an Impact Analysis was not required for the Ministerial Direction (OIA reference: OIA24-07466). The Office of Impact Analysis will consider the appropriate requirements for the industry standards made in accordance with the Direction, in due course.
Consultation
Consultation on the proposed Direction was undertaken with the ACMA, the Telecommunications Industry Ombudsman (TIO), the Australian Communications Consumer Action Network, Communications Alliance and members of the telecommunications industry.
Statement of compatibility with human rights
As section 42 of the Legislation Act 2003 does not apply to this instrument, being exempted under Part 4 of the Legislation (Exemption and Other Matters) Regulation 2015, a statement of compatibility with human rights is not required under section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Attachment A
Details of the Telecommunications (Customer Communications for Outages Industry Standards) Direction 2024
Section 1 – Name
This section provides that the name of the Direction is the Telecommunications (Customer Communications for Outages Industry Standards) Direction 2024.
Section 2 – Commencement
This section provides that the Direction commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
This section states that the Direction is made under subsection 125AA(4) of the Telecommunications Act 1997.
Section 4 – Definitions
This section sets out definitions for terms used in the Direction.
The note to this section informs the reader that a number of expressions used in the instrument are defined in the Telecommunications Act 1997 (the Act).
Subsection 6(3) clarifies that in determining the standards, the ACMA may define any terms that it considers appropriate or necessary, including terms used in the direction but not defined in section 4.
Section 5 – Direction to the ACMA
Subsection 5(1) provides that the Minister directs the ACMA to determine an industry standard under subsection 125AA(1) of the Act that deals with information to be provided, or made available, by carriers and carriage service providers relating to major outages that impact a telecommunications network used to supply carriage services to end-users.
Subsection 5(3) provides that the Minister directs the ACMA to determine an industry standard under subsection 125AA(1) of the Act that deals with information to be provided, or made available, by carriers and carriage service providers relating to significant local outages that impact a telecommunications network used to supply carriage services to end-users.
The terms major outage and significant local outage have not been defined in the Direction. It is intended that the terms major outage and significant local outage will be defined by the ACMA in making the standard, including through consultation.
In considering a potential definition of major outage, the ACMA should ensure that the definitions are objective, quantifiable and measurable. Additionally, the ACMA should have regard to examples in other jurisdictions including the arrangements for network outage reporting in Canada, the United Kingdom, the United States of America and Japan.
The term significant local outage is intended to capture outages that are lesser in scale than major outages but have a significant impact on local communities, for example, due to the geography of the area and resulting impact of the loss of connection, whether the area is regional or remote, and the extent to which it is serviced by alternative networks. The ACMA should consider reasonable formal approaches for defining local areas, including those used by the Australian Bureau of Statistics and Australia Post.
It is intended that in determining the standards, the ACMA will consider appropriate treatment of both planned and unplanned major outages or significant local outages. For example, it may choose to impose requirements relating to planned outages if it deems that planned outages are not adequately dealt with in other instruments, including the Telecommunications Consumer Protections Code which is under review at the time this Direction is made.
Under the Act, if the Minister directs the ACMA to make such a standard, the Minister may also direct that the ACMA is to do so within a specified period (paragraph 125AA(4)(b)).
Subsection 5(2) provides that the industry standard referred to in subsection 5(1) about major outages, is to be determined by 14 November 2024 and is to commence in full at the earliest practical opportunity and no later than 31 December 2024.
Subsection 5(4) provides that the industry standard referred to in subsection 5(3) about significant local outages is to be determined by 30 April 2025 and is to commence in full at the earliest practical opportunity and no later than 30 June 2025. This is intended to allow the ACMA to prioritise making the standard under subsection 5(1) and to allow more time to prepare and consult on the standard referred to under subsection 5(3) – noting it may require more work to appropriately calibrate the requirements that should apply to communications during or in relation to significant local outages.
The timeframes under subsections 5(2) and 5(4) meet the Government’s commitment in its response to the Optus Outage Review which was for the standard/s to be in place within 12 months of the commencement of drafting.
Subsection 5(5) provides that the ACMA may vary the resulting industry standard from time to time, provided the standard, as varied, comply with this instrument. This is intended to ensure that the ACMA can vary the standards without the need for a further Ministerial direction, provided the varied standards continue to comply with, and meet the policy intent behind the objectives in subsection 6(1) of the Direction.
Paragraph 5(6)(a) provides that the resulting standard may deal with matters differently for different classes of carriers or carriage service providers. Paragraph 5(6)(b) provides that the standard may exempt certain classes of carriers or carriage service providers from particular provisions of the standard. This section is designed to ensure the ACMA has the authority to target rules to appropriate carriers and carriage service providers in a manner that reflects, for example, the services they provide and their place in the telecommunications supply chain. It may be that the rules for carriers include obligations that are distinct from the obligations for carriage service providers. For example, the focus of obligations on the carrier whose network is subject to the fault/outage may be to provide information publicly (on their website, social media, television and radio) and to disseminate information ‘downstream’ to carriage service providers and others for the purpose of advising customers. The focus of obligations on carriage service providers may be to pass that information onto customers, by posting information on their website but also through appropriate direct channels that are not impacted by the outage, for example, email and/ or notifications through the provider’s application.
Paragraph 5(6)(c) provides that the standards may deal with matters differently for different classes of customers. For example, there may be a need for certain obligations to communicate specific information to priority assistance customers, or customers at specific risk.
Section 6 – Objectives and content of the standards
Objectives of the standards
Subsection 6(1) outlines the objectives the standards are to be drafted to give effect to as they relate to the telecommunications activities of carriers and carriage service providers.
Subparagraph 6(1)(a)(i) seeks to ensure that communications with end-users about a major outage or significant local outage in a telecommunications network used to supply carriage services to end users will be timely and up to date. This is intended to ensure that customers receive regular notifications and updates about the outage that reflects the current status of the outage and that these are updated as new information comes to hand. This is intended to ensure customers are kept informed in order to reduce uncertainty and minimise the impact on the consumer.
Subparagraph 6(1)(a)(ii) seeks to ensure that communications with end-users about a major or significant local outage in a telecommunications network used to supply carriage services to end users will be accessible (including for customers with a disability or linguistically diverse customers) and made through a mix of public and direct communication channels. Appropriate mix of public and direct communication channels is intended to include television, radio, the provider’s website, social media page as well as direct communication to customers through email or through the provider’s application.
Subparagraph 6(1)(a)(iii) seeks to ensure that communications with end-users about a major or significant local outage in a telecommunications network used to supply carriage services to end users will identify, as appropriate, methods for end-users to seek a real-time or near real-time update or assistance. This is intended to ensure that the carrier or carriage service provider makes contact methods available for consumers (for example, at-risk customers who need urgent assistance) to seek real time updates or assistance. Real time is intended to mean live communication such as via a phone contact or live chat and near real time is intended to mean live chat or an alternative contact mechanism that is staffed and capable of responding immediately. This is not intended to extend to communication generated by artificial intelligence.
Subparagraph 6(1)(a)(iv) seeks to ensure that communications with end-users about a major outage or significant local outage in a telecommunications network used to supply carriage services to end users will include information that the telecommunications network is subject to a major or significant local outage.
Subparagraph 6(1)(a)(v) seeks to ensure that communications with end-users about a major outage or significant local outage in a telecommunications network used to supply carriage services to end users will include available information about the status, scale, cause, and estimated timing for rectification of the major or significant local outage. It is intended that information be included to the extent that it is practically available, and for example, is legally permitted to be provided. For instance, if there are legal limitations to publicly disclosing the cause of the outage then the information is not available.
Subparagraph 6(1)(a)(vi) seeks to ensure that communications with end-users about a major outage or significant local outage in a telecommunications network used to supply carriage services to end users will provide prompt notification when services are restored.
Paragraph 6(1)(b) seeks to ensure that carriers and carriage service providers must share information about major or significant local outages with other carriers, carriage service providers and relevant stakeholders, for example the Telecommunications Industry Ombudsman (TIO) to enable effective communication with end-users affected by the major outage or significant local outage. This is intended to ensure regular, accurate, up-to-date information is transmitted across the supply chain, and within the telecommunications ecosystem, to ensure quality and timely updates can be provided to customers which is intended to reduce uncertainty and minimise the impact on consumers. For instance, it is intended that the relevant carrier would communicate with relevant carriage service providers about the major or significant local outage on its network to enable the carriage service providers to communicate with their customers.
Further, when designing obligations on carriers and carriage service providers to share information, including with ‘other stakeholders’, the ACMA should ensure there is appropriate synergy with actions to implement other recommendations from the Optus Outage Review that also have information sharing components – including to avoid inappropriate overlap, duplication or inconsistency.
Paragraph 6(1)(c) provides that the standards should be drafted to give effect to the objective that carriers and carriage service providers make information about their process for communicating about major or significant local outages publicly available and easily accessible. This is intended to provide transparency around what communications can be expected, which may be especially important for certain at-risk consumers or relevant organisations such as the TIO.
Content of the standards
Paragraph 6(2) outlines the matters that the standards required by section 5 can include, in relation to the telecommunications activities of carriers or carriage service providers. It will be a matter for ACMA to determine the content of the standards, having regard to the objectives set out in subsection 6(1), but subsection 6(2) provides a non-exhaustive list of matters that the standards may include rules on, as they relate to the telecommunications activities of carriers or carriage service providers. The matters listed are considered to be an example of the sorts of matters that would give effect to the objectives provided in s 5(1) of the direction. It is intended that the ACMA will consider whether these matters would be appropriate for inclusion.
Paragraph 6(2)(a) provides that the standards can include requirements for carriers and carriage service providers to notify end-users and the public, as soon as possible after the carrier or carriage service provider reasonably suspects a major outage or significant local outage is taking place. The paragraph is intended to provide guidance regarding the timing of when the carrier or carriage service provider should commence communicating with end users to notify them of the relevant outage. The point in which a carrier or carriage service provider reasonably suspects a major or significant local outage is earlier than when the outage is confirmed. It is anticipated that a flexible approach may be required to accommodate a range of circumstances in making the rules, for example, an outage in the middle of the night may not require the same approach as an outage during a working day
Paragraph 6(2)(b) provides that the standards can include requirements to provide timely updates to end-users, for example at relevant frequencies, during or in relation to the major outage or significant local outage. The Paragraph provides the ACMA with the flexibility to determine the timing, frequency and contents of the updates if including such a requirement in the standards.
Paragraph 6(2)(c) provides that the standards can include requirements to provide accessible communications through a variety of channels, for example, the relevant carrier or carriage service provider’s website, social media, call centres, applications, email, telecommunication, television, radio and other media. This paragraph is intended to provide guidance on the range of platforms that could be used to communicate. The ACMA can determine which mix of communications channels will be appropriate for different circumstances. For instance (as flagged above) it may be that the carrier is required to implement a broader range of communications activities such as media updates as well as updating its website, while other carriers and carriage service providers in the supply chain may be required to update their website and send an email update to their customers.
For clarity, the reference to call centers is intended to mean that carriers or carriage service provider ensure their call center staff are kept updated in order to inform relevant customers. Applications are intended to mean notifications and updates transmitted via the carrier or carriage service provider’s app – where available.
Paragraph 6(2)(d) provides that the standards can also deal with requirements to make easily accessible contact channels available, to enable end-users (for example, who require urgent assistance during a major outage or significant local outage) to contact the relevant carrier or carriage service provider in real-time or near real-time. This Paragraph is designed to ensure that contact channel/s are available and easily accessible for end-users to seek urgent assistance in real-time or near-real time. As noted above, the references to real time and near real time are intended to provide human (non-artificial intelligence) responses either immediately via direct contact or through an alternative contact mechanism that is responded to shortly after the consumer makes contact. It may be, in practice, that a mechanism needs to be made available on another provider’s network and/or via network agnostic mechanisms (for example, via the internet and over-the-top services).
Paragraph 6(2)(e) provides that the standards can include requirements on the content of communications, for example on the status, scale and cause of the major or significant local outage and estimated timeframes for rectification. In some cases, not all of the examples provided about content of communications may be suitable. For example, notifying consumers about the cause of the outage may not be possible where the cause of the outage is not known at the time.
Paragraph 6(2)(f) provides that the standards can include requirements to provide prompt notification when services are restored.
Paragraph 6(2)(g) provides that the standards can deal with requirements for carriers and carriage service providers to share information about major or significant local outages with other carriers, carriage service providers and relevant stakeholders in order to enable communications with end-users affected by the major or significant local outage. As above, this paragraph is intended to ensure that carriers and carriage service providers communicate information about a relevant major outage or significant local outage with other carriers, carriage service providers and other relevant stakeholders (like the TIO) to ensure that all parties across the supply chain and within the telecommunications ecosystem are kept informed and up to date in order to inform consumers.
Paragraph 6(2)(h) provides that the ACMA may include rules on other matters that it considers give effect to the objectives set out at subsection 6(1) when making the standards. This ensures that the ACMA has flexibility to include appropriate rules and accommodate issues uncovered during consultations, while being limited by the stated objectives in subsection 6(1) and the overarching Directions in subparagraph 5(1) and 5(3).
Subsection 6(3) provides that the ACMA may define any terms it considers appropriate or necessary in the standards that are not defined in section 4 of the Direction.