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
(Public Consultation on the Location or Removal of Payphones) Determination 2011
Authority
Subsection 12EG(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (‘the Act’) provides that the Minister for Broadband, Communications and the Digital Economy may, by legislative instrument, make a determination setting out rules to be complied with by a primary universal service provider in relation to the process for public consultation on the location or removal of payphones.
Subsection 12EG(2) of the Act further requires any Ministerial determination to provide that, if a primary universal service provider makes a decision to remove a payphone from a particular location, and that payphone is the only payphone at that location, then the provider must undertake a public consultation process on the removal of that payphone. If a person makes a submission to the provider in accordance with the consultation process, the provider must notify the person, in writing, of the outcome of the process.
Purpose
The purpose of this determination is to set an enforceable public consultation process for Telstra as the primary universal service provider in relation to decisions it makes on the installation or removal of a payphone. It is also intended that this determination will provide any people concerned about a primary universal service provider’s proposed installation or removal with sufficient information to make an informed submission to the primary universal service provider and to be aware of the recourse available to them if they are unhappy with the provider’s final decision on the proposal.
Background
Telstra, as the current primary universal service provider under the Act, is required as part of the universal service obligation (USO) to ensure that all people in Australia have reasonable access to payphone services on an equitable basis, wherever they reside or carry on business.
Subsection 12EG(1) of the Act allows the Minister to make a determination setting out the rules to be complied with by a primary universal service provider in relation to the process for public consultation on the location or removal of payphones.
This determination is enforceable under subsection 12EG(3) of the Act which requires a primary universal service provider to comply with a determination made under subsection 12EG(1). Therefore, a breach of any aspect of this determination is a breach of the Act, and consequently a breach of a carrier licence condition for which the standard enforcement provisions under the Telecommunications Act 1997 apply.
Subsection12EG(2) of the Act requires, in particular, that any determination made by the Minister must require a primary universal service provider to undertake a process of public consultation on any proposal to remove a payphone from a particular location where that payphone is the only payphone at that location. Furthermore, where a person makes a submission to the primary universal service provider as a result of the consultation process, the provider must notify the person, in writing, of the outcome of that process.
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 (Payphone Complaint Rules) Determination 2011.
The instruments together respond to the 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 by setting out a clear process for public consultation on proposed payphone installations and removals, along with rules on the information a primary universal service provider must provide as part of the consultation process, timeframes for the process and the actions the provider must undertake if a person asks the Australian Communications and Media Authority (ACMA) to review a final decision to remove a payphone.
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.
Commencement
This Determination is to commence on 1 January 2012
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 (Public Consultation on the Location or Removal of Payphones) Determination 2011
Part 1 Preliminary
Part 1 is a preliminary section and includes details on when the determination commences and a definition of the key terms used in the determination. This part also provides a general overview of the circumstances in which the determination will apply.
Section 1 – Name of determination
This section provides that the name of the determination is the Telecommunications Universal Service Obligation (Public Consultation on the Location or Removal of Payphones) Determination 2011.
Section 2 – Commencement
This section provides that the determination will commence on 1 January 2012.
Section 3 – Definitions
This section sets out a definition of the key terms used in the instrument.
The term Act is defined to mean the Telecommunications (Consumer Protection and Service Standards) Act 1999.
The term final decision is defined to mean either a decision made by a primary universal service provider to install a payphone at a site that is made in accordance with section 6 of the Determination, or a decision to remove a payphone from a site that is made in accordance with section 16 of the Determination.
The term local government body is defined to mean a government body or agency that has primary responsibility for the provision of local government or municipal services within the area within which the site for the proposed location or removal of the payphone is located.
The term local newspaper is defined to mean a newspaper which is in circulation in the area in which a payphone is proposed to be installed or removed.
The terms payphone consultation document; payphone location proposal; and payphone removal proposal are defined within the instrument itself by reference to the definitions provided under section 13 and subsections 4(2) and (3) respectively.
The term site is defined to mean an area of land which is no greater than 10 square metres.
A number of expressions used in the determination are given the same meanings as are given to those terms under the enabling legislation for the determination, the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the Act).
Subsection 3(2) further clarifies that unless specified otherwise, expressions used in the determination have the same meaning as those terms are given under the Telecommunications Act 1997.
Section 4 –Application of this determination
This section provides a general overview of the circumstances in which the determination will apply. It applies to the universal service area for which a provider is the primary universal service provider. It also applies to payphones which are, or are proposed to be, located at a payphone site listed in a payphone register (which is required to be maintained under Part 5 of the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011), and to payphones which are provided by a primary universal service provider in fulfilling the universal service obligation under the Act in relation to the supply, installation and maintenance of payphones in Australia on an equitable basis.
Where a primary universal service provider proposes to install a payphone at a site (referred to throughout the determination as a ‘payphone location proposal’), subsection 4(2) specifies that it must comply with Division 1 of Part 2 of the determination.
Where a primary universal service provider proposes to remove a payphone from a site where it is required to ensure that a payphone is located, it must comply with the following parts of the Determination:
– Division 2 of Part 2 of the Determination where, if the removal were to occur, no payphone would remain at the site from which the payphone is removed; or
– Division 3 of Part 2 of the Determination where, if the removal were to occur, one or more payphones would remain at that site.
The provider must also comply with Division 4 of Part 2 of the Determination, which sets out requirements in relation to a final decision about a payphone removal.
Where a primary universal service provider proposes to relocate a payphone from one site (current site) to another site (new site), subsection 4(4) also specifies which parts of the Determination it must comply with:
– Division 1 of Part 2 of the Determination in relation to the proposal to install the payphone at the new site;
– Division 2 of Part 2 of the Determination where the removal would result in there being no payphone at the current site and the new site is located more than 200 metres from the current site; or
– Division 3 of Part 2 of the Determination where the new site is located less than 200 metres from the current site; and
– Division 4 of Part 2 of the Determination which sets out obligations on a primary universal service provider in relation to making a final decision about a payphone removal proposal.
A note is provided at the end of subsection 4(4) to clarify that, where a person requests further information from a primary universal service provider regarding a payphone location or removal proposal, the provider must follow the rules set out in section 18 in terms of providing a response to the request (for example, it must include the reasons for the proposal, the alleged facts upon which the proposal is based and evidence proving those facts (if available)).
Part 2 – Public Consultation Rules
Two notes are provided at the beginning of Part 2 to clarify the legislative basis, and enforceability, of the Determination.
Division 1 Location of a payphone
Section 5 – Notification of payphone location proposal
This section requires a primary universal service provider, when it has made a preliminary decision to install a payphone (other than when the circumstances in subsection 5(8) arise), to provide written notification to the relevant local government body and the owners or occupiers of each residential and business premise within 50 metres of the proposed site.
Subsection 5(3) also sets out obligations relating to the contents of the notice (for example, it must describe the exact location of the site at which the payphone is proposed to be located and the date by which it is intended that a final decision be made regarding the proposal); the timeframe by which it must be provided (i.e., 42 days prior to the date proposed for making a final decision) and the form it which it must be published (i.e., in a local newspaper and on the primary universal service provider’s website 42 days prior to the date proposed for making a final decision on the proposal to install the payphone).
In relation to notices published in a newspaper or on a website, subsection 5(6) also requires that such notices also include the same information as is required in written notifications in accordance with subsection 5(3) and that a general invitation be provided for people to make submissions on the proposal.
These notification requirements ensure that relevant persons who may have an interest in the location of the payphone are provided with an opportunity to make a submission on whether or not they support or disagree with a payphone location decision.
Important exemptions from the notification requirements of section 5 are set out at subsection 5(8). This subsection provides that the notification obligations do not apply where a payphone location occurs at a site in accordance with a commercial agreement between a primary universal service provider and the owner of the site at which the payphone is to be located. In addition, the notification obligations do not apply if the site at which the payphone is proposed to be installed is located at an airport, a transport hub, a commercial retail site (including a shopping centre), a campus of a tertiary education institution, correctional facilities or hospitals. These are all sites at which typically no new payphone could be installed unless the owner or manager of the site agrees to the installation, and it would be redundant to require a primary universal service provider to undergo notification obligations when the ultimate decision on the installation lies with the owner or manager of the site.
Section 6 – Final decision – payphone location proposal
This section provides that a primary universal service provider may only make a final decision to install a payphone at a site if the primary universal service provider has met the notification obligations set out in section 5. Furthermore, the primary universal service provider must take into account all the submissions it has received regarding the proposal and a final decision regarding the proposed location of a payphone must not be made before the date it has previously specified as the date by which it intended to make its final decision.
A note is provided at the end of section 6 to clarify that section 19 of the Telecommunications Universal Service Obligation (Location of Payphones) Determination provides that the public consultation rules set out in this determination must be complied with by a primary universal service provider before it installs a payphone at a site which is a new payphone site in accordance with the rules set out in that determination.
Section 7 – Final decision notification requirements – payphone location proposal
This section requires a primary universal service provider, as soon as practicable after it has made a final decision on a payphone location proposal, to provide written notification of the final decision to the relevant local government body and any person who made a submission on the proposal. The notification must include:
- a statement outlining the final decision;
- the reasons for the final decision;
- an explanation of any differences which may exist between the proposal and the final decision; and
- details of how a person who disagrees with the final decision may make a complaint to the primary universal service provider.
A note follows on from subsection 7(2) to clarify that where a complaint has been made regarding a final decision on the location of a payphone, that a primary universal service provider must comply with the rules set out in the Telecommunications Universal Service Obligation (Payphone Complaint Rules) Determination 2011 for resolving complaints on the location and removal of payphones.
Division 2 Payphone removal – no payphone remaining at site
Section 8 – Application of this Division
This section provides a general overview of the circumstances in which Division 2 of the determination applies. It applies to a payphone removal proposal where, if that removal were to occur, no payphone would remain at the site.
Subsection 8(2) notes that, in the event that the property owner withdraws their consent to a payphone being located at a site, a primary universal service provider does not have to comply with the notification and consultation obligations set out in Division 2.
Section 9 – Notification of payphone removal proposal – no payphone remaining at site
This section sets out the general notification requirements which apply where a primary universal service provider proposes to remove a payphone from a site and, should that removal occur, there would be no remaining payphone at the site.
Section 9 requires a primary universal service provider to display a notice on the payphone or payphone cabinet, or, where reasonably practicable, near a payphone which is proposed to be removed. Two notification alternatives have been provided here to deal with the possibility that it may not always be possible to display a notice on a payphone (some payphones do not have payphone cabinets).
Subsection 9(2) also specifies that a primary universal service provider must also notify the relevant local government body and the owner or occupier of the land from which it is proposed the payphone will be removed, and must publish a notification of the proposal in a local newspaper and on its website.
Paragraph 9(2)(d) further requires a primary universal service provider to prepare and publish a payphone consultation document and in accordance with the requirements set out in section 13 (see section 13 below).
The notification requirements under section 9 do not extend to a requirement for the primary universal service provider to provide reasons upfront in the notifications it issues about the proposed removal of a payphone. Rather, it is required to include the upfront reasons in the payphone consultation document it must prepare in accordance with section 13.
Section 10 – Requirements of display notice
This section requires a display notice made in compliance with section 9 to meet certain placement and visibility conditions, contain certain information such as details of the location of the nearest payphone that will be available if the payphone is removed and the date by which a final decision will be made on the removal, invite submissions from interested parties and provide details of how a person may download a copy of the payphone consultation document. Subsection 10(4) requires such notices to be displayed for at least 42 days prior to the date proposed by the primary universal service provider for making a final decision on the removal of a payphone.
Section 11 – Requirements of notification
This section provides that a notification under paragraph 9(2)(b) must contain the information required under subsection 10(3), and that a notification under paragraph 9(2)(b) must be provided at least 42 days prior to the date proposed by the primary universal service provider for making a final decision on the removal of a payphone. These requirements ensure that notifications to the relevant local government body, and to the owner or occupier of the land from which it is proposed the payphone will be removed, will include information such as the location of the nearest payphone that will be available if the payphone is removed, the date by which it is proposed a final decision will be made on the removal, an explanation of how a person may make a submission to the primary universal service provider before the payphone is removed, and details of how a person may download a copy of the payphone consultation document.
Section 12 – Publication of payphone removal proposal – no payphone remaining at site
This section requires, in addition to the requirements for payphone display notices set out under section 11, that any notifications published by a primary universal service provider regarding its proposal to remove a payphone be published on the first page of its website as least 42 days prior to the date it specified as the date by which it will make a final decision. The primary universal service provider is also required to maintain the website notification until it has made a final decision on its proposal to remove the payphone.
Section 13 – Requirements of payphone consultation document
This section sets out the information that a primary universal service provider must include in a payphone consultation document which is required to be published in relation to proposals to remove a payphone where, should the payphone be removed, there would be no remaining payphone(s) at the site. The document must comply with any guidelines issued by the ACMA detailing the format for a payphone consultation document. Subparagraph 13(1)(b) outlines the information which a primary universal service provider must include in a payphone consultation document:
- the provider’s reasons for the proposed removal including facts upon which the proposal is based;
- to the extent that it is available, and if it is reasonable for the provider to disclose it, evidence proving those facts;
- a statement about which criteria under paragraph 20(1)(b) of the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011 apply to the removal.
That paragraph 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 of this Determination also requires a payphone consultation document to include information on how a person may make a complaint to the primary universal service provider about the proposed removal, and a notification (for the purposes of the Privacy Act 1988) indicating that a primary universal service provider may be required to disclose a complainant’s personal information (as contained in a complaint) to the ACMA.
This possibility arises because, should a person advise the ACMA that they object to a proposed payphone removal, and the ACMA then reviews the removal proposal, the primary universal service provider must provide the ACMA with copies of all submissions and complaints about the proposal.
Section 13 also requires a primary universal service provider to make a payphone consultation document available on its website at least 42 days before it makes a final decision on a proposed removal, and to maintain the document on its website for the duration of that period.
The effect of the requirement to make and publish a payphone consultation document is that it provides members of the public wanting more detailed information about a payphone removal proposal with access to a primary universal service provider’s reasons. It also provides people wishing to make a submission on the proposal with an opportunity to address the specific matters set out in the consultation document. Furthermore, in the event that a person advises the ACMA that he or she would like to object to a proposed removal, then the payphone consultation document provides the ACMA with ready access to all the arguments in favour of the removal, and thereby assists it in reviewing the proposed removal.
Division 3 Payphone removal – at least one payphone remaining at site
Section 14 –Application of this Division
This section provides a general overview of the circumstances in which Division 3 of the Determination applies. Division 3 addresses proposed removals of payphones where at least one payphone would remain at the site. A primary universal service provider must still consult on proposed removals that fall into this category, but the requirements reflect the fact that the local community would still have access to at least one payphone at the site.
Section 15 – Notification of payphone removal proposal – at least one payphone remaining at the site
This section sets out similar notification requirements to those applying under section 9 (see above), but differs to the extent that a primary universal service provider is only required to notify the relevant local government body and the owner/occupier of the land and publish a notification of the proposal on its website rather than publish a notification in the newspaper or display a notice on the payphone itself. As at least one payphone will remain at the site, it is considered that requiring a primary universal service provider also to publish a notification in a newspaper would in this context impose an unwarranted cost burden.
Subsection 15(3) sets out what information a notification must include. A notification must include a description of the site, the number and details of the other payphones at the site, the date by which the primary universal service provider intends to make a final decision on the proposal, and details of how a person may request, and obtain, further information on the proposal from the primary universal service provider. The notification must also explain how a person may make a submission to the primary universal service provider on the proposed removal.
In terms of timeframes for sending a notification under subsection 15(1) to the relevant local government body and the owner/occupier of the land and for publishing a notification of the proposal on its website, subsection 15(4) requires that any notification be sent at least 42 days prior to the date a primary universal service provider has indicated that it will make its final decision regarding the proposal to remove the payphone. Similarly, subsection 15(5) requires that notification be published on the first page of the primary universal service provider’s section of its website relating to payphones at least 42 days prior to its proposed date for making its final decision.
Subsection 15(6) also requires that any such notification must contain the same type of information which is required to be included in a notification sent to those people who have an interest in the proposal under subsection 15(3), together with an invitation for submissions to be made to it regarding the payphone removal proposal. It is a further requirement under subsection 15(7) for a website notification to be maintained on the website until the date of the final decision regarding the payphone removal proposal.
Division 4 – Final decision – payphone removal proposal
Division 4 of the determination sets out obligations on a primary universal service provider in relation to making a final decision about a payphone removal proposal.
Section 16 – Final decision – payphone removal proposal
This section provides that a primary universal service provider may only make a final decision to remove a payphone from a site where:
- notification of the proposal has been given in accordance with the rules set out at Divisions 2 or 3;
- a final decision is not made any earlier than the date a primary universal service provider has indicated that it will make its final decision regarding a payphone removal proposal under Divisions 2 or 3; and
- in making its final decision on the proposal, the primary universal service provider has taken into account all submissions it receives regarding the proposal.
A note is included at the end of section 16 to clarify that section 19 of the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011 provides that the public consultation rules set out in this determination must be complied with by a primary universal service provider before it removes a payphone at a site to which that determination applies.
Section 17 – Final decision notification requirements – payphone removal proposal
This section requires a primary universal service provider to provide written notification of a final decision to the relevant local government body, the owner or occupier of the land on which the payphone is located, and any person who made a submission on the proposal to remove a payphone prior to the final decision. This requirement applies to both proposals under Division 2 to remove a payphone to which, if the removal were to occur, no payphone would remain at the site, or in relation to a proposal under Division 3 to remove a payphone where, if that were to occur, at least one payphone would remain at the site.
Subsection 17(2) specifies what information must be included in a notification. This extends to a requirement for a primary universal service provider to include a statement of the final decision and reasons for the final decision (including information on the number of submissions received and a summary of the content of those submissions) and, if necessary, an explanation of how the final decision differs from the payphone removal proposal. In addition, a primary universal service provider must provide information on how an interested party who disagrees with the final decision can make a complaint to the primary universal service provider and inform the ACMA that he or she objects to the removal and wishes to request that the ACMA make a direction about the payphone pursuant to section 12EI of the Act.
Subparagraph 17(2)(d)(ii) clarifies that a person can only request the ACMA’s review of the final decision after the initial complaint has been dealt with by the primary universal service provider.
A note following subparagraph 17(2)(d)(ii) clarifies that directions made by the ACMA pursuant to its power to issue a direction in relation to the removal of payphones under subsection 12EI(2) or (3) of the Act must be complied with by a primary universal service provider. Where a payphone has not been previously removed, the ACMA can direct a primary universal service provider not to remove a payphone. Similarly, where a payphone has already been removed, the ACMA can direct a primary universal service provider to supply and install a payphone at a particular location within a specified period.
Subparagraph 17(2)(e) states that a primary universal service provider must advise a recipient or person under subsection 17(1) that they have 14 days in which to make an objection to the ACMA for a review of the final decision provided to the recipient or person under subsection 17(1).
Division 5 Other rules in relation to the location or removal of a payphone
Section 18 – Responding to requests for further information
This section provides that, if a person requests further information from a primary universal service provider on a payphone location proposal or a payphone removal proposal where at least one payphone remains at a site, the primary universal service provider must respond in writing to the request within 14 days (provided that the request is made prior to the date by which the primary universal service provider has specified that it will make a final decision on its proposal).
Subsection 18(2) clarifies that, in relation to a request for further information about a proposal to install a new payphone, the response must include the reasons for the proposal, the alleged facts upon which the proposal is based and evidence proving those facts (if available). In providing reasons for the proposal, paragraph 18(2)(a) specifies that a primary universal service provider must also include in its reasons a statement about which criteria under paragraph 6(4)(b) of the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011 are considered to apply to the proposal to remove the payphone. Paragraph 6(4)(b) of that determination provides that a primary universal service provider does not have to install a payphone if doing so would not deliver a net social benefit to the local community, or a primary universal service provider cannot reasonably install and operate a payphone at a new payphone location.
Paragraph 18(2)(b) further clarifies that in relation to specifying the evidence in relation to the alleged facts upon which the proposal is based, a primary universal service provider is not required to disclose evidence if it would not be reasonable for it to do so. This provides protection for commercial-in-confidence material, while also providing a presumption that the primary universal service provider will provide a reasonable level of evidence on request.
Section 19 – A final decision is not a new proposal
This section is included for clarity and provides that a final decision by a primary universal service provider does not constitute a new proposal if, after public consultation on a preliminary decision to locate or remove a payphone, a payphone is not installed or removed. As a result, the primary universal service provider will not be required to engage in further public consultation on its final decision despite this differing from its original payphone proposal.