Telecommunications Universal Service Obligation (Payphone Complaint Rules) Determination 2011

EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Broadband, Communications

and the Digital Economy

Telecommunications (Consumer Protection and Service Standards) Act 1999

Telecommunications Universal Service Obligation (Payphone Complaint Rules) Determination 2011

Authority

Subsection 12EH(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the Act) enables the Minister to make a determination setting out rules to be complied with by a primary universal service provider in relation to the process for the resolution of complaints about the location or removal of payphones.

The Telecommunications Universal Service Obligation (Payphone Complaint Rules) Determination 2011(the Determination) establishes the obligations on a primary universal service provider in developing and managing a complaints process with regard to a final decision to install or remove a payphone. The Determination also sets out rules for the Australian Communications and Media Authority (ACMA) in responding to objections made to it regarding the removal of a payphone and establishes the reporting requirements for a primary universal service provider when responding to the ACMA’s notification of review.

Purpose

The purpose of this Determination is to provide the public, the primary universal service provider, and the ACMA with certainty in the complaints and review process for the installation or removal of payphones provided as part of a primary universal service provider’s Universal Service Obligation (USO).

The Determination is designed to:

• require a primary universal service provider to develop a payphone complaint process;
• identify when a payphone complaint process is required and where it is not required;
• ensure that details of the complaint process are readily available and accessible to the public and that the means for making complaints are low cost or free, and flexible;
• provide rules requiring a primary service provider to inform the complainant of time remaining during a consultation period;
• establish principles for the resolution of payphone complaints by a primary universal service provider in relation to:
  • response times to a complaint;
  • the need to explain decisions made in response to a complaint; and
  • the need to direct the complainant to further avenues of review through the ACMA where the complaint relates to a decision to remove a payphone;
• require that a primary universal service provider comply with directions made by the ACMA; and
• establish an obligation on the primary universal service provider to comply with any reporting requirements of the ACMA to assist it in reviewing  a payphone removal decision.

Section 12EH(4) of the Act establishes that the Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

This instrument is one of five payphone instruments that together form a package to clarify and strengthen payphone obligations. The other instruments are:

• the Telecommunications Universal Service Obligation (Payphone Performance Standards) Determination (No.1) 2011;
• the Telecommunications Universal Service Obligation (Payphone Performance Benchmarks) Instrument (No. 1) 2011
• the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011; and
• the Telecommunications Universal Service Obligation (Public Consultation on the Location or Removal of Payphones) Determination 2011.

The instruments together respond to a long history of community dissatisfaction with the adequacy of arrangements for payphones in Australia, notably in relation to the processes for removing payphones and the time taken to repair them, especially in rural and remote areas. This particular instrument responds to community concerns about the adequacy of complaint and review mechanisms when payphones are installed or removed.

This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA) (see paragraph 6(a) of the LIA).

Consultation

The Department of Broadband, Communications and the Digital Economy issued a consultation paper on this and the four other proposed payphone instruments on 15 August 2011. Seven submissions were received, with most expressing overall support for the instruments. The Department also consulted directly with Telstra and the ACMA.

Regulatory Impact Statement

See the regulatory impact statement and financial impact statement set out in the explanatory statement on the Telecommunications Universal Service Obligation (Payphone Performance Standards) Determination (No.1) 2011.

Details of the accompanying Determination are set out in the Attachment.

ATTACHMENT

Details of the Telecommunications Universal Service Obligation

(Payphone Complaint Rules) Determination 2011

Part 1 – Preliminary

Section 1 – Name of instrument

This clause provides that the name of the Determination is the Telecommunications Universal Service Obligation (Payphone Complaint Rules) Determination 2011.

Section 2 – Commencement

This clause establishes that the Determination commences on 1 January 2012.

Section 3 – Definitions

Section 3 sets out the definitions of key terms used in the Determination.

The term ACMA is defined to mean the Australian Communications and Media Authority.

The term Act is defined to mean the Telecommunications (Consumer Protection and Service Standards) Act 1999.

The term payphone complaint is defined by reference to subsection 5(3) of the Determination.

The term payphone complaint process is defined by reference to subsection 5(1) of the Determination.

The term payphone complaint reference number is defined by reference to section 9 of the Determination.

The term payphone consultation document has the meaning given by section 13 of the Telecommunications Universal Service Obligation (Public Consultation on the Location or Removal of Payphones) Determination 2011.

The term working day has its ordinary meaning, namely, a day which is not a Saturday, Sunday or public holiday in the place where the relevant act is to be done.

A note is included after the definitions to clarify that a number of expressions used in the Determination are given the same meanings as given to those terms under the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the Act), being the enabling legislation for the Determination.

Clause 4 – Application of this Determination

Section 4 establishes that the Determination applies to a primary universal service provider’s payphones that are situated, or proposed to be situated, at payphone sites specified in the payphone register that is in force in accordance with Part 5 of the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011.

This Determination also applies to a primary universal service provider in relation to the payphones it provides (or proposes to provide) in fulfilment of the USO under the Act in relation to the supply, installation and maintenance of payphones in Australia on an equitable basis.

Part 2 - Payphone Complaint Rules

Division 1 – Payphone Complaint Process

Section 5 – Primary universal service provider must develop payphone complaint process

Section 5 requires the primary universal service provider to develop a process for the resolution of payphone complaints. The process is referred to as the “payphone complaint process”. The payphone complaint process must accord with the rules set out in the Determination.

For the purposes of the Determination, subsection 5(3) provides that a payphone complaint is defined as a complaint received by the primary universal service provider about a decision of the primary universal service provider on the location or removal of a payphone provided for the purpose of complying with the USO.  In addition, a complaint must be received by one of the means as provided for under subsection 8(1).

The provision for both written and oral complaints gives adequate flexibility to the primary universal service provider and members of the public who may wish to make a complaint. Given that the Australian Communications and Media Authority (ACMA) may be asked to review a complaint about a payphone removal, however, subsection 5(4) requires the provider to record an oral complaint in writing.

Subsection 5(3) also establishes a period of 20 working days in which complaints about a final decision to install or remove a payphone can be addressed by a primary universal service provider. This time period will provide a primary universal service provider with an opportunity to respond to any complaint about a final decision, and also provides persons who may object to a final decision on a proposed payphone installation with an opportunity to have complaints addressed by the primary universal service provider.

Subsection 5(5) provides guidance on matters the payphone complaint process is not required to resolve. The complaint process is not required to resolve:

• a complaint that is in relation to a payphone that is not provided for the purpose of complying with the primary universal service provider’s USO (e.g. blue phones commonly found in service stations or at newsagents); or
• a complaint in relation to a payphone that is not the responsibility of the universal service provider (e.g. payphones operated by another provider such as Tritel).

Subsection 5(6) clarifies the scope of paragraph 5(5)(a). That is, a payphone provided by the primary universal service provider for the purpose of complying with the USO will still be taken to have been provided by a primary universal service provider (and therefore still subject to the Determination) even where a primary universal service provider has entered into an agreement with another provider for the supply, management, operation or maintenance of the payphone. The effect of this clause is to prevent a primary universal service provider from engaging in an activity, such as leasing a payphone to another person, which could enable it to avoid the requirement to follow a complaints process in relation to that payphone.

Section 6 – Review by the ACMA of payphone removal decision

Section 6 establishes that when a payphone complaint is received by a primary universal service provider in relation to a final decision to remove a payphone, the payphone complaint process must provide for review of that decision by the ACMA. This ensures that a person who makes a complaint about a payphone removal proposal is aware of the right to have a final decision reviewed by the ACMA.

A note to this clause establishes that the ACMA can only receive applications for review once the primary universal service provider has resolved the complaint in relation to the removal of a payphone.

Although there is no express power under the Act for the ACMA to review a final decision to install a payphone, the Act does confer power upon the ACMA to require a primary universal service provider to halt a removal, or to re-install a payphone it has removed, if there has been a breach of an instrument made under subsections 12EF(1) or 12EG(1) of the Act.

Section 7 – Complaint process must be made publicly available

Section 7 requires a primary universal service provider to make the details of the payphone complaint process available and accessible to all members of the public who may wish to make a complaint about the location or removal of a payphone. Details of the payphone complaint process must be published in a prominent position on the primary universal service provider’s website.

The term, “prominent position” means on the first page of the primary universal service provider’s payphone related website.

The provision also includes a note to the effect that the details of the complaint process being made available are in addition to the requirements on a primary universal service provider under subsections 5(3), 7(2), 10(3), 15(3) and 17(2) of the Telecommunications Universal Service Obligation (Public Consultation on the Location and Removal of Payphones) Determination 2011 to advise certain parties of the complaint process as part of its notification obligations.

Subsection 7(2) sets out time periods a primary universal service provider must specify in relation to providing details of the payphone complaint process. These include:

• a statement of the period in which a person who disagrees with a final decision to remove or install a payphone may make a complaint (i.e., 20 working days from the date of a primary universal service provider’s final decision); and
• a statement of a period in which a person who is dissatisfied with a primary universal service provider’s response to a complaint about a final decision to remove a payphone may lodge an objection with the ACMA (i.e., 10 working days from when the primary universal service provider provided its written response to the complaint).

The time frame of 10 working days to lodge an objection with the ACMA in relation to a final decision to remove a payphone is intended to limit the time for making such objections.

Division 2 – Receiving complaints

Section 8 – Means for receiving complaints

The intention of section 8 is to make the complaints process as straightforward as possible. Subsection 8(1) requires a primary universal service provider to provide low cost or free, and flexible means for members of the public to make a complaint (either in writing or orally) regarding the location or removal of a payphone.

There are a number of ways in which a complaint may be made. For example:

• by email; or
• by free-call; or
• in writing to a specified mailing address; or
• by telephoning a specified local-call rate number; or
• by internet web page form.

Subsection 8(2) further requires a primary universal service provider to make the details of the complaint process publicly available. This includes publishing details of the process in a prominent position on the first page of its website relating to payphones and maintaining free-call general service contact numbers and multi-lingual enquiry lines by which people can obtain information on the means by which a written complaint may be made. In the case where a person wishes to make an oral complaint, the provider is to maintain general service contact numbers and multi-lingual enquiry lines to enable persons to make the complaint.

In addition to these requirements, subsection 8(3) also requires that a primary universal service provider provide a person with reasonable assistance to make a complaint. This requirement has been included to ensure that the process for making a complaint is as straightforward as possible.

A note to subsection 8(3) has been included to provide guidance on what level of assistance by a primary universal service provider to assist a person to make a complaint (in writing or orally) will comprise “reasonable assistance”. Generally, reasonable assistance will include providing advice and information on how to make a complaint.

Section 9 – Allocation of payphone complaint reference number

Section 9 provides that a primary universal service provider must allocate a unique reference number to any complaint that it receives. A reference number must be allocated to all complaints, whether oral or in writing.

The purpose of this clause is administrative. It is intended to assist the primary universal service provider in acknowledging and responding to individual complaints and also to assist the ACMA in processing any requests for review of a final decision.

Section 10 – Primary universal service provider must acknowledge receipt of complaint

Under section 10, a primary universal service provider must acknowledge receipt of a payphone complaint within five working days of receiving a complaint.

Division 3 – Resolving complaints

Section 11 – Principles for the resolution of payphone complaints

Section 11 requires that a primary universal service provider investigate and resolve all payphone complaints in an efficient, fair and timely way. These words are intended to have their ordinary meanings. The purpose of the clause is to promote a straightforward process for managing and resolving complaints.

Section 12 – Response to complaint

This clause sets out the requirements for a primary universal service provider to respond to a payphone complaint made to it during the consultation period for the proposed location or removal of a payphone.  If a complaint is made within 20 working days of a consultation period ending, the primary universal service provider must inform the person of the time remaining during consultation.

The provider’s response must; be provided in writing, include the payphone complaint reference number allocated to the complaint and include a primary universal service provider’s reasons for adopting the course of action it has decided to take in response to the complaint (e.g. whether or not to proceed with a payphone location proposal or a payphone removal proposal.)

Section 13 – Review of a payphone removal decision by the ACMA

This section provides that if a person has advised the ACMA of their objection to a final decision by a primary universal service provider to remove a payphone, the primary universal service provider must comply with a direction that the ACMA makes in relation to the decision.

The provision also makes it clear that if the ACMA notifies a primary universal service provider that it has received an objection to a payphone removal proposal and the ACMA intends to conduct a review of the primary universal services provider’s decision regarding the payphone removal, the primary universal service provider must provide the ACMA with the following information:

• copies of all submissions received in relation to the payphone removal process; and
• in the case where the complaint is made in writing, copies of responses to complaints received by a primary universal service provider in relation to the decision;
• in the case where the complaint is made orally, a complete copy of the primary universal service provider’s written record of the complaint; and
• the primary universal service provider’s reasons for removing a payphone, including information regarding which criteria (as set out in paragraph 20(1)(b) of the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011), support the payphone removal proposal.

Paragraph 20(1)(b) of the Location of Payphones Determination sets out four possible reasons for removing a payphone.  They are:

• maintaining the payphone at the payphone site would not deliver a net social benefit to the local community;
• there is demonstrated community support for the removal of the payphone from the payphone site;
• the primary universal service provider cannot continue to reasonably operate the payphone at the payphone site; and
• if the existing payphone site is at a place or area of a type described in Division 1 of Schedule 1 to the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011 – a payphone is to be relocated at a new payphone site within that place or area.

Section 13 also provides that a primary universal service provider must provide the ACMA with details of what public consultation has occurred in respect of the payphone removal proposal and a copy of the payphone consultation document. These requirements ensure that the ACMA has evidence of the consultation that has taken place (as required under the Telecommunications Universal Service Obligation (Public Consultation on the Location and Removal of Payphones) Determination 2011), and of the reasons the primary universal service provider originally put forward for removing the payphone.

Section 13 then requires a primary universal service provider to provide the ACMA with its detailed reasons and arguments for determining that maintaining the payphone would not confer a net social benefit on the local community, or that it cannot reasonably continue to operate the payphone at the site.

Subsection 13(3) sets out exemptions to the obligations. A primary universal service provider will not be required to provide information to the ACMA, or comply with its directions in relation to a decision, if the objection is made about a temporary removal of a payphone from a site or the substitution of a payphone supplied by a primary universal service provider with a payphone supplied by the Commonwealth or a Commonwealth agency. This matches the exclusions in relation to these matters in relation to the location or removal of a payphone set out under the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011.

Subsection 13(4) clarifies that the requirements under paragraphs (f) and (g) of subsection 13(2), relating to the provision of a payphone consultation document and the results of the net social benefits test, do not apply in relation to a payphone proposal where there would be at least another payphone remaining at the site at which the payphone (subject to the removal proposal) is located.

Section 14 – Payphone must not be removed if decision is subject to complaint or objection

Section 14 establishes that the primary universal service provider, upon notification by the ACMA that it has received an application to review a payphone removal decision, cannot remove the payphone in question during the period when complaints may be made about any final decision on the removal of a payphone or when a person may lodge an objection with the ACMA. The effect of this is that a payphone can only be removed provided that:

• no complaints have been received within 20 days of a primary universal service provider’s notification of its decision to remove a payphone; or
• no written objections have been made to the ACMA in relation to a primary universal service provider’s response to a written complaint made to it on the subject of its decision to remove a payphone; or
• the ACMA has made a final decision not to make a direction to prevent the removal of a payphone in response to a written objection made to it on a payphone removal decision.

Two notes are included at the end of this section. The first clarifies the legislative basis to the ACMA’s power to give directions about the removal of payphones. The second note is included to clarify the timeframe in which the ACMA is expected to make a decision with respect to an objection to the removal of a payphone, being at least 45 calendar days from notification of the objection.

Division 4 - Miscellaneous

Section 15 – Primary universal service provider must retain material regarding payphone complaint

Section 15 requires the primary universal service provider to retain all material collected and recorded in relation to a payphone complaint for a period of at least two years following the resolution of the complaint. The purpose of this clause is to aid in the discovery process if legal action is taken against the primary universal service provider during the two-year time frame.

Section 16 – Primary universal service provider must not impose fees, charges or penalties

Section 16 establishes that a primary universal service provider cannot impose a fee, charge or penalty on any person or entity in relation to the receipt or handling of a payphone complaint.