Print version

Communications Update May 2007

13 June 2007

Contents

Legislation

Regulatory Developments

Competition

Industry Developments

Legislation

Back to top

Federal Government introduces the Communications Legislation Amendment (Content Services) Bill 2007

On 10 May 2007, the Federal Government introduced the Communications Legislation Amendment (Content Services) Bill 2007. The Bill establishes a framework that aims to regulate emerging content services and imposes obligations on content providers to protect consumers from inappropriate or harmful material on convergent devices such as 3G mobile phones and through subscription internet portals.

The new framework imposes the following limitations to premium mobile services and live stream services:

These limitations do not include news or current affairs services or electronic books or magazines. However, under the framework, electronic editions of publications such as books and magazines that have been classified ‘Restricted – Category 1’, ‘Restricted – Category 2’ or ‘Refused Classification’ are prohibited.

The Bill excludes certain types of content services from the from the scope of the new regulatory framework such as:

Under the scheme, carriage service providers who do no more than provide a carriage service that enables content to be delivered or accessed will not be considered to be providing a content service.

The new regime is based on a ‘take down’ model. This requires content providers to remove access to prohibited content or potentially prohibited content if the Australian Communications and Media Authority (ACMA) issues them with a ‘take-down’ notice for stored or static content, or a ‘service-cessation’ notice for live content, or a ‘link deletion’ notice for links to content.

The ACMA is also entitled to issue a notice to a content service provider to remove content that is substantially similar to content already subject to a take down notice. Where a content service provider fails to comply with a notice from the ACMA, civil or criminal penalties may be pursued.

Different sections of the content services industry are able to develop codes of practice to give effect to certain content service provider obligations. Where necessary the ACMA will have the power to determine industry standards where it considers that industry codes are deficient in ensuring that content services are provided in accordance with prevailing community standards.

The Bill also includes amendments to the Telecommunications (Consumer Protection and Service Standards) Act 1999 which ensures that Australia’s Indian Ocean territories can be included in the regular independent reviews of telecommunications services and regional, rural and remote Australia.

For further information on the Content Services Bill please visit the Internet Industry Association website.

Regulatory developments

Back to top

Do Not Call Register launched

On 3 May 2007 the Minister for Communications, Information and the Arts, Senator Helen Coonan, launched the national Do Not Call Register.

The Do Not Call Register enables individuals to list their fixed and mobile telephone numbers on the register to block certain unsolicited telemarketing calls. Under the Do Not Call Register legislation, from 31 May 2007 it will be illegal to make telemarketing calls to numbers placed on the register.

Under the Do Not Call Register Act 2006 (Act) the ACMA will be responsible for establishing and overseeing the Do Not Call Register. The ACMA has appointed Service Stream Solutions Pty Ltd to build and operate the register. Under the Act, the ACMA is responsible for:

The Do Not Call Register still allows calls from charities and certain calls of genuine market research made by public interest entities. These calls will be subject to discretion under the national telemarketing standard which commenced on 31 May 2007.

From 25 May 2007 telemarketers will be able to submit their calling lists for checking against the register to ensure compliance under the Act. The costs of establishing and maintaining the register will be partly funded by industry through the payment of access and subscription fees.

Pursuant to the Do Not Call Register (Access Fees) Determination 2007, the ACMA has set the level of annual subscription fees which start from $71, to check calling lists of 20,000 numbers, and range to $80,000 for lists of up to 100 million numbers.

For further information on the Do Not Call Register, please visit the ACMA website.

Back to top

ACMA publishes guidelines for narrowcasting television services

On 10 May 2007 the Australian Communication and Media Authority (ACMA) published guidelines to classify services that may be provided as narrowcasting television services under the Broadcasting Services Act 1992 (Act). Narrowcasting services are legally distinct categories of broadcasting services that are characterised by having their reception limited in a certain way such as by being targeted to a special interest group or intended only for limited locations.

The guidelines have been developed following the Government’s decision to allow new media services to consumers through the allocation of two new national digital television services, Channel A and Channel B. As the ACMA has chosen not to adopt a prescriptive approach to the definition of ‘narrowcasting service’, service providers are encouraged under section 21 of the Act to approach the ACMA for an opinion to determine the category that a service or proposed service falls. This opinion remains valid for a minimum of five years.

The guidelines set out factors that the ACMA will consider when giving an opinion about what category a service will fall into. The main determining factors include the content of a service’s program, the circumstances of the service and the nature and the audience of the program.

For further information about the guidelines for narrowcasting television services please visit the ACMA website.

Back to top

ACMA commences new arrangements for access to IPND data

On 15 May 2007 Schedule 1 of the Telecommunications Amendment (Integrated Public Number Database) Act 2006 commenced. In conjunction, the ACMA announced that new arrangements for accessing information in the Integrated Public Number Database (IPND) were enabled with the introduction of the Telecommunication Integrated Public Number Database Scheme 2007 (IPND Scheme) and the registration of a revised industry code.

The IPND Scheme is pursuant to amendments to part 13 of the Telecommunications Act 1997. It required the ACMA to produce a legislative instrument to grant authorisation to use and disclose the IPND for the publication and maintenance of a public number directory for research of a kind specified by the Minister for Communication, Information Technology and the Arts.

The Scheme makes provisions for:

Furthermore the ACMA has registered the Integrated Public Number Database (IPND) Industry Code ACIF C555:2007 (IPND Code). The code was developed by the Communications Alliance and aims to promote and uphold the integrity of IPND data by establishing processes for data providers, data users and the IPND Manager. It also serves to aligns industry practices with requirements of the Act and the IPND Scheme.

For further information on the IPND Scheme and IPND code please visit the ACMA website.

Competition

Back to top

Australian Competition Tribunal rules Telstra’s Unconditioned Local Loop Service prices are unreasonable

On 17 May 2007 the Australian Competition Tribunal rejected Telstra’s proposed price for the Unconditional Local Loop Service (ULLS) because they were unreasonable. The Tribunal’s determination affirmed the decision by the Australian Competition and Consumer Commission (ACCC) on 25 August 2006 to reject the access undertaking that Telstra had submitted for the ULLS.

The ULLS allows telecommunications service providers to gain access to Telstra’s copper cable network between end users and the telephone exchange. Access to the ULLS, when used in conjunction with the provider’s own infrastructure, enables service providers to supply a range of telecommunications services including voice services, high speed data services and broadband internet access.

Telstra wanted to charge competitors a geographically averaged price of $30 a subscriber for access to the network. However the ACCC specified that Telstra should vary prices according to geographic region.

The Tribunal considered matters in section 152AH and the objectives in section 152AB of the Trade Practices Act 1974. It concluded that the charge for access to the ULLS of $30 per service per month in the undertakings was unreasonable based on the average cost of supplying the service across all regions. It was not satisfied that Telstra’s estimated network costs represented a reasonable estimate of its projected network costs for the periods covered by the undertakings.

Following the decision, the price of access to the service by competitors will be subject to:

For further information see the Tribunal’s decision regarding Telstra’s pricing of the ULLS on the ACCC website.

Industry developments

Back to top

ACMA directs Prodigy Telecom Pty Ltd to join the TIO scheme

On 16 May 2007 the ACMA announced that it issued a direction to Prodigy Telecom Pty Ltd (Prodigy) to join the Telecommunications Industry Ombudsman Scheme (TIO Scheme). Pursuant to section 128 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 all carriers and eligible carriage service providers are required to join the TIO Scheme.

The TIO is a free and independent alternative dispute resolution scheme for consumers with unresolved complaints about their telephone or internet services. It is an industry funded scheme and members consist of telecommunication carriers, telephone carriage providers and Internet Service Providers who provide services to residential and small business customers.

Prodigy has 21 days to comply with ACMA’s direction. If Prodigy fails to join the TIO Scheme within this time the ACMA is entitled to seek pecuniary penalties through the Federal Court.

Further information about the ACMA’s direction to Prodigy is available on the ACMA website.

Back to top

Vodafone’s bid to control Hutchinson Essar approved

On 8 May 2007 the Indian Foreign Investment Promotion Board (FIPB) approved Vodafone’s $US11 billion bid for Hutchinson Essar, India’s fourth largest mobile operator. The company will be renamed Vodafone Essar. The approval has been under scrutiny regarding the company’s shareholding structure. Hutchinson Telecommunications International (HTIL) of Hong Kong, holds 52 per cent of Hutchison Essar.

Concern was raised over whether a 15 per cent stake held by two local businessmen, the prospective chairman and vice chairman of Vodafone Essar, meant the bid by Vodafone would exceed the 74 percent foreign direct investment permitted by India in the Telecommunications sector. The FIPB decided that foreign investment rules had not been breached however further approval is needed for Vodafone to exercise options over the 15 per cent minority stake concerned.

For further information visit The Australian website.

Back to top

ACMA allocates new digital commercial television service for Darwin

On 18 May 2007 the ACMA announced that it allocated a commercial television broadcasting licence to provide a digital only service for Darwin, Northern Territory.

Under the Broadcasting Services Act 1992 an additional commercial broadcasting licence may be allocated in markets where only two commercial broadcasting licences are in force.

The licence was allocated to Darwin Digital Television Pty Ltd, a joint venture company owned by Regional Television Pty Ltd (Southern Cross Darwin) and Territory Television Pty Ltd (NTD Nine), the two commercial television broadcasting licensees in the Darwin licence area.

Darwin Digital Television will operate in digital mode only and will join the four digital television services ABC, NTD, Southern Cross Darwin and SBS. It will broadcast to the same area as the existing commercial television broadcasting services in the Darwin television licence area.

The ACMA has released variations to the digital plans for Northern Territory, which assign UHF channels 33 and 47 to Darwin Digital Television Pty Ltd.

For further information please visit the ACMA website.

Back to top

ACMA proposes channels for digital television repeater services in regional and remote Australia

On 24 May 2007 the ACMA released proposals to allot and assign digital channels for the television repeater services in 149 locations in Remote and Regional Australia.

The proposals are pursuant to Schedule 4 of the Broadcasting Services Act 1992 that requires the ACMA to formulate legislative schemes for the conversion of commercial and national television broadcasting services from analog to digital mode.

In areas where channels for both national and commercial or only commercial services are identified, the ACMA has allocated currently unsigned channels that may be used for other purposes such as datacasting. 

The ACMA has taken into account a variety of factors when developing the proposals which have been formulated as draft variations to digital channel plans and discussion papers. These include:

The ACMA is currently welcoming submissions on these proposals.

For further information on the digital channels for television services please visit the ACMA website.

Back to top

ACMA introduces new phone number ranges

On 24 May 2007 the Australian Communications and Media Authority introduced new phone number ranges for parts of Melbourne, Sydney and regional areas where existing number ranges are reaching full utilisation. The number ranges have been included in the Telecommunications Numbering Plan Variation 2007 (No 2).

The new number ranges have been implemented in Bundaberg, Queensland, Camperdown, Victoria, Deloraine, Tasmania, Western Melbourne and Western Sydney. The number ranges will complement the existing ranges and will provide at least a ten year supply of numbers for these areas.

The changes have been implemented pursuant to the Telecommunications Numbering Plan 1997 which establishes a framework for the use of numbers in connection with the supply of carriage services and the allocation and portability of numbers. It allows certain telephone numbers to be associated with a specific type of service and call cost.

The changes will have no impact on the cost of calls or existing numbers. However equipment such as PABX systems will require reprogramming.

For further information on the introduction of new phone number ranges please visit the ACMA website.

For more information please contact any one of our partners in our Communications, Media & Technology team.



This article provides a summary only of the subject matter covered, without the assumption of a duty of care by Freehills or Freehills Patent & Trade Mark Attorneys. The summary is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.

Copyright in this article is owned by Freehills or Freehills Patent & Trade Mark Attorneys. For permission to reproduce articles, please contact Freehills' Public Affairs Coordinator, Megan Williams, on 61 3 9288 1132.