EXPLANATORY STATEMENT
Prepared by the Australian Communications and Media Authority
Telecommunications Service Provider (Mobile Premium Services) Amendment Determination 2012 (No. 1)
Telecommunications Act 1997
The Telecommunications Service Provider (Mobile Premium Services) Amendment Determination 2012 (No. 1) (the Amendment Determination) has been made by the Australian Communications and Media Authority (the ACMA) under subsection 99(1) of the Telecommunications Act 1997 (the Act) to amend the Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 1) (the No. 1 Determination) and the Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 2) (the No. 2 Determination).
Background
Subsection 99(1) of the Act provides that the ACMA may make a written determination setting out rules that apply to service providers in relation to the supply of either or both specified carriage services and specified content services.
No. 1 Determination
In 2010, the ACMA made the No. 1 Determination to set out the rules that apply to service providers in relation to the supply of premium SMS and MMS services.
Section 11 of the No. 1 Determination specifies the types of information a mobile carriage service provider must give to a customer about the barring of premium SMS and MMS services, and the way in which, and the timeframes within which, that information must be given.
Section 12 of the No. 1 Determination specifies the timeframes within which the information must be given.
Under subsection 13(2) of the No. 1 Determination if the ACMA determines that a mobile carriage service provider has given the information to a customer outside of the timeframes required, the ACMA may give a notice to the mobile carriage service provider to ensure compliance.
The Amendment Determination amends subsection 12(4) of the No. 1 Determination to reduce the frequency within which a mobile carriage service provider must give the information to a customer who is supplied with a public mobile telecommunications service where all premium SMS and MMS services are not barred. The frequency within which the information is to be given after the first year of supply is reduced from at least once in each subsequent period of six months to at least once in each subsequent period of twelve months.
The Amendment Determination also amends subsection 13(2) of the No. 1 Determination to expressly state that the timeframes referred to therein are the timeframes required by section 12 of the No. 1 Determination.
No. 2 Determination
In 2010, the ACMA also made the No. 2 Determination to protect the interests of customers and other consumers in relation to the supply of mobile premium services by, among other things, enhancing compliance with the requirements of the Mobile Premium Services Industry Code C637:2009.
The No. 2 Determination refers to the “MPS Code” which is defined in section 1.3 as “the Mobile Premium Services Industry Code C637:2009 published by Communications Alliance, as in force from time to time”.
On 29 February 2012, the ACMA registered the Mobile Premium Services Industry Code C637:2011 published by Communications Alliance (the New MPS Code). The New MPS Code came into force on 1 June 2012 and replaced the Mobile Premium Services Industry Code C637:2009.
The Amendment Determination amends the definition of “MPS Code” in the No. 2 Determination to refer to the New MPS Code instead of the Mobile Premium Services Industry Code C637:2009.
The Amendment Determination commences on the day after it is registered.
Regulation Impact
The Office of Best Practice Regulation has advised that a Regulation Impact Statement is not required for the Amendment Determination (OBPR ID 13149 and 14009).
Consultation
The ACCC was consulted in accordance with subsection 99(4) of the Act before making the Amendment Determination. The ACCC advised that it had no concerns with the proposed amendments to the No. 1 Determination and the No. 2 Determination.
A media release was issued on 10 November 2011 announcing a review of both Determinations and inviting comment from the public and industry. A consultation paper titled “Premium messaging services: Review of the Telecommunications Service Provider (Mobile Premium Services) Determinations 2010 (No.1) and (No. 2)” was posted on the ACMA website. A period of six weeks was provided for comment. Nine submissions were received.
A second round of consultation was undertaken which involved among others, those who had made submissions in the first round.
While the Australian Communications Consumer Action Network was opposed in principle to any reduction in the frequency with which customer information about barring is given, the majority of mobile carriers and carriage service providers supported the proposed reduction. The Telecommunications Industry Ombudsman also had no objection to the proposed reduction.
The ACMA considered all submissions and had regard to the following matters before making the amendment to subsection 12(4) of the No.1 Determination:
- There has been a significant reduction in MPS-related consumer complaints; and
- Consumers will continue to receive information about barring when they become a customer, at least once every three months in the first year of supply, when they receive a bill containing a charge for a premium SMS and MMS service and when they make an enquiry or complaint about such a service.
The amendment to subsection 13(2) of the No. 1 Determination is in line with comments of the Standing Committee on Regulations and Ordinances. That amendment and the amendment to the No.2 Determination were considered by the Office of Best Practice Regulation to be minor or machinery in nature. Accordingly, no consultation was undertaken in relation to those amendments, except with the ACCC.
Notes on Sections
The provisions of the Amendment Determination are described in Attachment 1.
Statement of Compatibility with Human Rights
A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out in Attachment 2.
Attachment 1
NOTES ON SECTIONS
Section 1 – Name of Determination
Section 1 provides for the citation of the Determination as the Telecommunications Service Provider (Mobile Premium Services) Amendment Determination 2012 (No. 1).
Section 2 – Commencement
Section 2 provides that the Determination commences on the day after it is registered.
Section 3 – Amendment of Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 1)
Section 3 provides that the Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 1) is amended in accordance with Schedule 1.
Section 4 – Amendment of Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 2)
Section 4 provides that the Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 2) is amended in accordance with Schedule 2.
Schedule 1 – Amendment of Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 1)
Items [1] and [2] amend subsection 12(4) of the Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 1) to reduce the frequency within which a mobile carriage service provider must give information about premium SMS and MMS services to a customer who is supplied with a public mobile telecommunications service where all premium SMS and MMS services are not barred. The frequency within which the information is to be given after the first year of supply is reduced from at least once in each subsequent period of six months to at least once in each subsequent period of twelve months.
Item [3] amends subsection 13(2) of the Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 1) to expressly state that the timeframes referred to therein are the timeframes required by section 12 of that Determination.
Schedule 2 – Amendment of Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 2)
Item [1] amends the definition of the “MPS Code” in section 1.3 of the Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 2) to refer to the Mobile Premium Services Industry Code C637:2011 instead of the Mobile Premium Services Industry Code C637:2009.
Attachment 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications Service Provider (Mobile Premium Services) Amendment Determination 2012 (No. 1)
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Telecommunications Service Provider (Mobile Premium Services) Amendment Determination 2012 (No. 1) (the Amendment Determination) has been made by the Australian Communications and Media Authority to amend the Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 1) (No. 1 Determination) and the Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 2) (No. 2 Determination).
The Amendment Determination amends subsection 12(4) of the No. 1 Determination to reduce the frequency within which a mobile carriage service provider must give information about premium SMS and MMS services to a customer who is supplied with a public mobile telecommunications service where all premium SMS and MMS services are not barred. The frequency within which the information is to be given after the first year of supply is reduced from at least once in each subsequent period of six months to at least once in each subsequent period of twelve months.
The Amendment Determination amends subsection 13(2) of the No. 1 Determination to expressly state that the timeframes referred to therein are the timeframes required by section 12 of the No. 1 Determination.
The Amendment Determination also amends the definition of “MPS Code” in section 1.3 of the No. 2 Determination to refer to the Mobile Premium Services Industry Code C637:2011 instead of the Mobile Premium Services Industry Code C637:2009.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.