EXPLANATORY STATEMENT
Prepared by the Australian Communications and Media Authority
Telecommunications Act 1997
TELECOMMUNICATIONS SERVICE PROVIDER (MOBILE PREMIUM SERVICES)
AMENDMENT DETERMINATION 2014 (NO.1)
Outline
The Australian Communications and Media Authority (the ACMA) has made the Telecommunications Service Provider (Mobile Premium Services) Amendment Determination 2014 (No.1) (the Amendment Determination) under section 99 of the Telecommunications Act 1997 (the Act).
Background
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make an instrument of a legislative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to, among other things, amend, or vary any such instrument.
The Amendment Determination amends the Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 1) (the MPS Determination) to remove obligations on mobile carriage service providers to give customers certain information about the barring of premium short messaging services (SMS) and multimedia messaging services (MMS), and to make other consequential changes.
Operation of the Amendment Determination
The MPS Determination imposes obligations on mobile carriage service providers to give customers certain information about the barring of premium SMS and MMS services. These obligations are set out in sections 11 and 12 of the MPS Determination (customer information obligations).
The Amendment Determination removes these customer information obligations in light of substantial changes in the mobile premium services (MPS) environment that have occurred since the MPS Determination was made. These changes, including improved industry compliance, a significant fall in the amount of consumer detriment arising from MPS, and considerable decline in the market for MPS, have reduced the need for such customer information obligations to be imposed on mobile carriage service providers.
Regulation Impact Statement
After consultation with the Office of Best Practice Regulation (OBPR), the ACMA was advised that a regulatory impact statement was not required as the amendments are of a minor and machinery nature, and do not substantially alter existing arrangements. The OBPR reference number is ID16831.
Public Consultation
The Amendment Determination has the effect of repealing sections 11 and 12 of the MPS Determination which impose the customer information obligations on mobile carriage service providers, and makes a number of other consequential changes to the MPS Determination. These changes were flagged as part of a public consultation process, during April 2014, on proposals for telecommunications regulatory reform covering industry reporting requirements and consumer information provisions for MPS. The majority of stakeholder responses were supportive of the proposal and there was a high level of agreement that most of the customer information obligations in the MPS Determination have become excess to requirements, with the exception of the requirement triggered when a customer enquires or complains about being billed for MPS fees.
Whilst the ACMA considers that retention of an obligation to provide information upon customer enquiry or complaint does have utility, it takes the view that this obligation does not need to be imposed by a legislative instrument such as a determination under section 99 of the Act, but may be better dealt with by an industry code. In this regard, the ACMA notes that Communications Alliance Ltd has submitted to the ACMA for registration an amendment to the Mobile Premium Services Code, C637:2011 which includes an information obligation to this effect.
Following the public consultation, and given the substantial changes in the MPS market, the ACMA considers that the customer information obligations are no longer warranted and should be repealed.
Statement of Compatibility with Human Rights
Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule maker in relation to a legislative instrument to which section 42 (disallowance) of the Legislative Instruments Act 2003 applies to cause a statement of compatibility to be prepared in respect of that legislative instrument.
This statement has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The Amendment Determination amends the MPS Determination to remove customer information obligations on mobile carriage service providers to give customers certain information about the barring of premium SMS and MMS, and to make other consequential changes. These obligations have been removed in light of substantial changes in the MPS environment that have occurred since the MPS Determination was made. These changes, including improved industry compliance, a significant fall in the amount of consumer detriment arising from MPS, and considerable decline in the market for MPS, have reduced the need for such customer information obligations to be imposed on mobile carriage service providers.
The ACMA has considered whether the Amendment Determination engages any applicable human rights or freedoms and has formed the view that it does not. The Amendment Determination is compatible with human rights as it does not raise any human rights issues.
Description of the provisions in the Amendment Determination
Section 1 Name of Determination
This section names the Amendment Determination as the Telecommunications Service Provider (Mobile Premium Services) Amendment Determination 2014 (No.1).
Section 2 Commencement
This section provides that the Amendment Determination commences on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 Amendment of the Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No.1)
This section provides that the MPS Determination is amended by Schedule 1.
Schedule 1 Amendment of the Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 1)
Item [1] Section 3
Item [1] omits the definitions of first year and subsequent years from section 3 of the MPS Determination. Definitions of these terms are no longer necessary as sections 11 and 12 of the MPS Determination, in which these terms appeared, have been repealed.
Item [2] Paragraphs 5(c) and (d)
Item [2] omits both paragraphs 5(c) and (d) of the MPS Determination from section 5 of the MPS Determination which lists the objects of the MPS Determination and substitutes it with only paragraph 5(c). Paragraph 5(d) specifies that one of the objects of the MPS Determination is to provide customer information about barring of all premium SMS and MMS services. As the customer information obligations in sections 11 and 12 of the MPS Determination are removed by the Amendment Determination, this object is no longer relevant.
Item [3] Section 11
Item [3] omits section 11 of the MPS Determination which specified the requirement to give customers information about barring premium SMS and MMS services.
Item [4] Section 12
Item [4] omits section 12 of the MPS Determination which specified the occasions for giving information to a customer about barring premium SMS and MMS services.
Item [5] Subsection 13(2)
Item [5] omits subsection 13(2) of the MPS Determination and substitutes it with a revised subsection 13(2) which no longer refers to compliance with customer information obligations. This is because these customer information obligations have been removed and therefore paragraphs 13(2)(b), (c), (e), (f) and (g) of the MPS Determination are no longer relevant.