Communications Update August 2005
16 September 2005- Recent legislative instruments for telecommunications sector
- Bills digests
- Report into Copyright Amendment (Film Directors’ Rights) Bill 2005
- Seven obtains injunction for Kokoda film copyright infringement
- Coonan releases reports highlighting the importance of ICT
- ACIF seeks comment on draft rules for mobile phone noise and transfers
- Findings reveal impact of ICT development on environment
- ACIF registers new standard to reduce time taken to reconnect a service
- A balancing act: ACMA presents broadcasters with new privacy guidelines
- Coonan announces launch of Connect Australia
- Privacy Act investigation commenced
- Performance of Australian telecommunications regime
- Telstra’a plan for regional and remote areas
- Telecommunication consumer safeguards here to stay
- OECD releases 2005 communications outlook
- 10 point plan to future proof telecommunications competition
- ACCC rejects Telstra monthly charges
- ACCC publishes telecommunications reports 2003–04
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Legislation
Recent legislative instruments for telecommunications sector
A number of legislative instruments have been passed, including:
- The Broadcasting Services (HDTV Demonstration Programs) Determination 2005 (Determination). The Determination will enable the broadcast of high definition television (HDTV) demonstration programs until 6 August 2007. The aim of the Determination is to promote the use of digital television broadcast services.
- The Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment No 1 of 2005) (Declaration). The Declaration amends the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997. The Determination seeks to improve the operation and reporting of priority assistance for consumers and Telstra, as the provider of the propriety assistance service to customers who have been diagnosed with a life-threatening medical condition.
- The Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment No 2 of 2005) (Declaration). The Declaration amends the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Original Declaration), by inserting a new clause into the Original Declaration imposing requirements on Telstra regarding its ongoing commitment to a local presence in regional, rural and remote Australia.
Further detail and copies of the above are available at the ComLaw website.
Bills digests
On 18 August 2005, the Federal Parliamentary Library has released a bills digest for the Broadcasting Legislation Amendment Bill (No 1) 2005 (Bill).
The Bill amends the Broadcasting Services Act 1992 (BSA) and the Radiocommmunications Act 1992, to permit commercial television licensees in remote areas to multi-channel their digital services when they elect to provide a third commercial digital service under the BSA.
The Bill provides licensees with an exemption from all mandatory high definition television (HDTV) quotas, where they choose to provide a third commercial service in a particular remote licence area, and they elect to multi-channel their digital television services.
The Bill balances both public interest issues and the circumstances of commercial television broadcasters.
On 11 August 2005, the Federal Parliamentary Library also released a bills digest for the Telecommunications and Other Legislation Amendment (Protection of Submarine Cables and Other Measures) Bill 2005 (TOL Bill).
The TOL Bill amends both the Submarine Cables and Pipelines Protection Act 1963 and the Telecommunications Act 1997, by inserting a new set of legislative provisions aimed at protecting submarine cables.
It is expected that the amendments will:
- establish protection zones relating to cables of national significance
- prohibit or restrict various activities within these protection zones
- impose criminal penalties on persons engaged in prohibited and restricted activities, and
- establish a carrier-based compensation regime that complies with the Constitutional requirement of the acquisition of property on just terms.
Further detail and copies of the Bills and bills digests are available at the APH website.
Report into Copyright Amendment (Film Directors’ Rights) Bill 2005
On 10 August 2005, the Senate Legal and Constitutional Committee released its report titled Provisions of the Copyright Amendment (Film Directors’ Rights) Bill 2005 (Bill).
If passed, the Bill will amend the Copyright Act (Act), to enable film directors and producers to be joint copyright owners of films, pursuant to the retransmission statutory licence contained in the Act.
Further information on the Bill can be found in our Copyright Update August 2005.
A copy of the Bill is available at the APH website.
Cases
Seven obtains injunction for Kokoda film copyright infringement
On 8 August 2005, the Full Court of the Federal Court of Australian (Full Court) delivered its decision in Seven Network (Operations) Ltd v TCN Channel Nine Pty Ltd [2005] FCAFC 144 in a copyright dispute over footage shot on a trip down the Kokoda Trail.
The Discipline and Responsibility Encounter, an organisation established by Mr Murray, organised a trip along the Kokoda Trial for disadvantaged schoolboys.
Seven filmed a series of tapes (camera tapes) during the trip for a segment to be broadcast on its Today Tonight program.
When Murray passed the camera tapes onto Channel Nine for the purposes of a new documentary, Seven took action against Murray to restrain him from further use of the camera tapes.
Lindgren J of the Full Court agreed with the judge at first instance, that under the Copyright Act 1968 (Cth), both Seven and Murray were co-owners of the copyright in the camera tapes, having made arrangements for their production. Additionally, his Honour cited Lauri v Renad [1892] as authority for the proposition that co-owners of copyright held as tenants in common, rather than joint tenants.
The Full Court found that Seven had not assigned its interest in the copyright to Murray, nor had Murray a licence enabling him pass on the camera tapes which led to the broadcast by Nine.
Accordingly, Seven was entitled to an injunction over the camera tapes.
A copy of the decision is available at the Austill website.
Regulatory developments
Coonan releases reports highlighting the importance of ICT
On 1 September 2005, the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, announced three reports (reports) highlighting the importance of information and communications technology (ICT) for small and medium Australian businesses.
The reports are:
- ICT production in Australia SMEs
- Digital factories: the hidden revolution in Australian manufacturing, and
- Smart Internet 2010.
Further detail is available at the DCITA website.
ACIF seeks comment on draft rules for mobile phone noise and transfers
On 30 August 2005, the Australian Communications Industry Forum (ACIF) announced the release of two revised sets of rules for public comment. One relates to the technical standard regulating mobile telephone noise (draft Standard) and the other is an industry code regarding the transfer of phone services, titled Customer Transfer Industry Code (draft Code).
The draft Standard sets the maximum noise level that can emit from mobile phone earpieces.
The transfer of phone services is also being reviewed under the draft Code, which seeks to protect customers from contact with unauthorised phone representatives asking them to transfer their mobile phones to a different service provider.
The draft Code accords with the National Privacy Principles and the New South Wales and Victorian legislation on fair trading and door-to-door sales.
Submissions on the draft Standard close on 31 October 2005.
Submissions on the draft Code close on 30 September 2005.
Further detail is available at the ACIF website.
Findings reveal impact of ICT development on environment
On 26 August 2005, the Special Minister of State, Senator Eric Abetz announced findings contained in Measures in support of environmentally friendly ICT (report).
The report indicates the impact of Information, Communication and Technology (ICT) development on the environment.
The report is a response to a government discussion paper produced in 2004 titled Measures in support of environmentally friendly ICT. The report lists steps both government and private agencies should adopt to limit any environmental impact, such as e-waste, in the future.
The report was complied by the Australian Government Information Management Office (AGIMO).
The report details additional initiatives to be undertaken by AGIMO, including:
- an improved practice checklist to support Australian government agencies in their pursuit to environmental impacts caused by their use of ICT, and
- the introduction of environmental considerations in ICT sourcing options, procurement and contracting to ensure an enhanced, value-for-money service return from Australian government agencies’ investment in ICT.
Further detail and a copy of the report is available at the AGIMO website.
AIF registers new standard to reduce time taken to reconnect a service
On 23 August 2005, the Australian Communications and Media Authority (ACMA) registered a new industry code called ACIF C617:2005 Connect Outstanding (Code).
The Code aims to reduce the delay in connecting a new resident where the previous resident has failed to disconnect their telecommunications service.
The Code is an initiative of the Australian Communications Industry Forum (ACIF). Registration of the Code makes it enforceable by the ACMA.
The Code also outlines the obligations owed by various parties involved in the reconnection of a service that has been cancelled.
Further detail and a copy of the Code is available at the ACIF website.
A balancing act: ACMA presents broadcasters with new privacy guidelines
On 23 August 2005, the Australian Communications and Media Authority (ACMA) released a booklet called Privacy Guidelines for Broadcasters (booklet).
The booklet provides guidance to broadcasters about issues such as striking a balance between public and private conduct, the use of publicly available personal information and the position of public figures.
Further detail and a copy of the booklet is available at the ACMA website.
Coonan announces launch of Connect Australia
On 17 August 2005, the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, announced an extensive communications package called Connect Australia (package).
The package ensures access to premium telecommunications services following the government’s injection of $1.1 billion into broadband services, new regional clever networks, mobile services and indigenous telecommunications.
An additional $2 billion dedicated communications fund is expected, earnings from which will go towards ensuring new communications services for rural Australia.
The package comprises four components, with the up-front $1.1 billion to be divided among the following initiatives:
- $878 million towards Broadband Connect to provide all Australians with affordable broadband services
- $113 million towards Clever Networks to ensure the rollout of innovative broadband services
- $30 million towards Mobile Connect to extend terrestrial mobile coverage and continue satellite handset capabilities in remote areas, and
- $90 million towards Banking Indigenous Ability to ensure the delivery of phones, internet, videoconferencing, and improved radio and television in remote indigenous communities.
The government plans to introduce a range of future proofing measures following the passage of the Telstra sale legislation.
The government will also introduce legislation to implement a series of reforms to telecommunications competition regulation.
Further detail and a copy of the package is available at the DCITA website.
Privacy Act investigation commenced
On 17 August 2005, Privacy Commissioner, Karen Curtis announced investigations into Switch Mobile and One Touch Solutions after the ABC’s Four Corners: Your Money and Your Life unveiled possible breaches of the Privacy Act.
In the meantime, consumers may obtain information from the Attorney-General’s ID theft prevention kit.
Further detail is available at the Office of the Privacy Commissioner website.
Performance of Australian telecommunications regime
On 10 August 2005, the Senate Standing Committee on Environment, Communications, Information Technology and the Arts (committee), released The performance of the Australian telecommunications regulatory regime (report).
The report explores the extent to which the current telecommunications regulatory regime promotes competition, encourages investment and ensures premium consumer protection.
The report also makes recommendations for legislative amendments.
Broadly, the committee recommends:
- that the Productivity Commission be asked to undertake a compete examination relating to the structural separation of Telstra
- that where the government decides to pursue operational separation of Telstra instead of structural separation, it adopt the minimum framework and operating rules outlined by the ACCC in its proposed model
- that Telstra divest its shareholding in Foxtel and the ACCC be given divestiture powers
- that the Trade Practices Act 1974 be amended to include a provision requiring the owner of a facility used to provide a service to use all reasonable endeavours to accommodate the requirements of a person seeking access
- that the ACCC examine the availability of access to, and the cost of, backhaul services for carriers building or proposing to build new broadband infrastructure in regional Australia, and
- that an independent audit of the government's implementation of the Estens Report recommendations be conducted preceding the introduction of legislation enabling the further sale of Telstra.
Further detail is available at the Parliament of Australia website.
Telstra’a plan for regional and remote areas
On 4 August 2005, the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, and Deputy Prime Minister Mark Vaile, announced Telstra’s Local Presence Plan (plan).
The plan aims to ensure an ongoing commitment to ensuring effective communications in the bush.
The plan must:
- detail how Telstra intends to maintain an effective local presence in rural, regional and remote Australia
- involve consultation to address the concerns of regional, rural and remote customers
- focus on meeting the needs and interests of customers, and
- provide measures to enable the minister and the Australian Communications and Media Authority to monitor Telstra’s compliance with the plan.
Further details and a copy of Senator Coonan’s written guidance specifying matters to be addressed in the plan is available at the DCITA website.
Telecommunication consumer safeguards here to stay
On 28 July 2005, the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan announced that certain telecommunications consumer safeguards, including the Universal Service Obligation (USO) will remain intact.
The USO was introduced in 1997 and ensures the telecommunications industry provides all Australians with access to standard telephone and payphone services.
Further detail is available at the DCITA website.
Competition
OECD releases 2005 communications outlook
On 24 August 2005, the Organisation for Economic Co-operation and Development (OECD) released its Communications Outlook 2005 (Outlook).
The Outlook reveals that although the communications industry has returned to profitable levels, new developments in internet technology are challenging fixed-line revenues of traditional carriers.
The Outlook details the most recent comparable data on the performance of the communications sector and policy frameworks in OECD countries.
According to the OECD, internet telephony innovations including Voice over Internet Protocol (VoIP) not only threaten the viability of fixed-line revenues, but also mobile telephone services, which are more popular in many countries than fixed-line connections.
The OECD is also predicting, among other things, that the new service offerings, such as Wi-Fi hotspots, will increase competition for 3G mobile operators.
Further detail is available at the OECD website.
10-point plan to future proof telecommunications competition
On 12 August 2005, the Competitive Carriers’ Coalition (CCC) and Optus released a 10 point plan to future proof telecommunications competition called the '10 Point Plan to Future Proof Telecommunications Competition' (plan).
The plan will monitor:
- that competition is more important than share price
- operational separation
- non-discrimination
- rural telecommunications funding, and
- the stimulation of competitive broadband.
Further detail is available at the Optus website and the DCITA website.
ACCC rejects Telstra monthly charges
On 10 August 2005, the Australian Competition and Consumer Commission (ACCC) released its draft decision rejecting Telstra’s Unconditioned Local Loop Service and its Line Sharing Service monthly charges undertakings.
The two services facilitate access to the telco’s customer access network.
The ACCC’s draft decision is based upon Telstra’s apparent imposition of unreasonable monthly charges, which fail to mirror efficient costs of supplying the services. The ACCC anticipates that the charges will have an adverse bearing upon competition and efficient investment in, and use of, infrastructure in the market.
Further detail is available at the ACCC website.
ACCC publishes telecommunications reports 2003–04
The Australian Competition and Consumer Commission (ACCC) has published telecommunications reports for the period 2003–04 (reports).
The reports cover competitive safeguards; changes in the prices for services in Australia; and Telstra’s compliance with the price control arrangements.
Further detail is available at the ACCC website.
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