EXPLANATORY STATEMENT
Issued by the authority of the Australian Communications and Media Authority (ACMA)
Telecommunications (Standard Form of Agreement Information) Amendment Determination 2006 (No.1)
Telecommunications Act 1997
Legislative provisions
Under section 480A of the Telecommunications Act 1997 (‘the Act’), the Australian Communications and Media Authority (ACMA) is required to make a determination specifying the information that a carriage service provider (‘CSP’) that uses a standard form of agreement (SFOA) must supply to its customers. This information relates to the supply by a CSP to its customers of designated telecommunications goods and services. Section 480A was inserted into the Act by Schedule 2 of the Telecommunications Legislation Amendment Act 1999 (‘the TLA Act’).
In making a determination under subsection 480A(2) of the Act, ACMA may require CSPs that use SFOAs to:
- give ordinary customers specified information relating to the supply of designated goods or services;
- give specified kinds of ordinary customers specified information about the supply of designated goods or services; or
- publish information relating to the supply of designated goods or services.
In the determination, ACMA may specify the manner and form in which information to customers is to be given or published. ACMA may also require CSPs to inform customers of their rights, in particular, with regard to the Customer Service Guarantee (CSG) Standard.
CSPs must comply with a determination made under this section. Failure to comply with any requirement of the determination may result in CSPs being liable for the civil penalty provisions under Part 31 of the Act.
The intention of this instrument is to ensure that consumers are provided with adequate information about the terms and conditions of their SFOA and they receive reasonable notice of changes to those terms and conditions, particularly where the changes may have an adverse effect on consumers. The timely provision of such information will enable consumers to make informed purchasing decisions. In addition, the previous Determination contained provisions that were inconsistent with the Consumer Contracts Code, ACIF C620:2005) which commenced in November 2005, necessitating an Amendment Determination.
The obligation upon a CSP to advise customers of changes to terms and conditions will vary according to the circumstances of the change and the nature of the relationship between the CSP and the customer. CSPs are required to give consideration to a number of factors outlined in subsection 11(2) in assessing the need for notice and the form and timing of such notice for any changes.
[In assessing complaints about non-compliance with the Determination ACMA would consider whether the CSP concerned had assessed the factors outlined in 11(2) and had taken steps that were reasonable in light of that assessment.]
Subsection 480A(6) requires ACMA to consult with the Telecommunications Industry Ombudsman (TIO) before making a Determination under section 480A(2).
The ACA consulted with the TIO on 1 April 2005. ACMA consulted with the TIO on 12 January 2006 and 3 April 2006.
In addition, the ACA and ACMA also sought comment from a number of organisations representing the interests of consumers as well as industry participants who have a standard form of agreement lodged with ACMA.
The Australian Competition and Consumer Commission (ACCC), the Department of Communication, Information Technology and the Arts (DCITA) and Consumer Affairs Victoria (CAV) were also invited to comment.
ACMA, in making this determination, took into account all comments received.
Background
The Telecommunications (Standard Form of Agreement Information) Amendment Determination 2006 (No.1) (the Amendment Determination) was made to improve the level of information disclosure to customers of CSPs who provide services in accordance with SFOAs. The Determination only applies to those CSPs who have formulated a SFOA for the purposes of section 479 of the Act. The Amendment Determination was also made to resolve inconsistencies between the notice provisions in the Consumer Contracts Code and the previous Determination.
Section 480 of the Act requires a CSP who uses a SFOA to ensure that copies of the whole agreement, or part of it, are made available to the public and, in particular, to its customers at each of its business offices. The Determination made by ACMA
under section 480A imposes further obligations on CSPs who use SFOAs. An explanation of the sections of the Amendment Determination follows.
Notes on sections
Section 1 – Name of Determination
This is a citation provision.
Section 2 – Commencement
The Amendment Determination commences the day after it is registered.
Section 3 – Amendment of Telecommunications (Standard Form of Agreement Information Determination) 2003
This section states that Schedule 1 of the Amendment Determination amends the Telecommunications (Standard Form of Agreement Information) Determination 2003 (the Determination).
Schedule 1 Amendments
Item 1
Section 4 – Definitions
Section 4 defines the terms used in the Amendment Determination.
The definition of working day, including the example, in section 4 is omitted.
Item 2
Sections 10, 11 and 12 are substituted with:
Section 11 – Variations to standard form of agreement — general
This section applies if a CSP varies or intends to vary the terms and conditions of the SFOA and the variation could be reasonably expected to adversely affect the customer.
Subsection 11(2) requires the provider to give reasonable notice to each ordinary customer affected by the variation. The provider must have regard to the nature of the variation, the means by which notice is to be provided, the length of time before the variation is to occur and any other matter that is reasonably relevant.
Subsection 11(3) clarifies that if there is an inconsistency between a provision of the Trade Practices Act 1974 and the Determination, it is the provision in that Act which prevails.