Telecommunications Regulatory Update – July/August 2017
Australian e-marketing company penalised for breaching the Spam Act
ACMA has handed Australian e-marketing company Upside.Digital a A$ 39,600 penalty for breaching the Spam Act. The penalty was imposed after an investigation found that Upside.Digital sent, and caused to be sent, a significant number of marketing emails that did not clearly contain the name and contact details of its clients who authorised the sending of the messages.
Upside.Digital operates as part of an affiliate marketing chain, which sends advertising emails on behalf of its clients and provides these emails to other third-party marketers to then send to their own customer databases. while Upside.Digital had consent to send emails to recipients on its own database, the ACMA said the company could not demonstrate that consent had been obtained for other emails that it caused to be sent through a third-party marketer.
ACMA seeks greater industry involvement in radio interference issues
ACMA is looking to overhaul the way it handles radio interference complaints. This would be the first change to regulatory practice in this area since the Interference Management Principles were developed in 2004 by ACMA's predecessor the Australian Communications Authority. ACMA will look into encouraging third-party interference diagnosis and resolution services and moving to a greater cost-recovery model for its own services. In its Consultation Paper outlining new interference management principles, ACMA noted that technology and regulatory practices have changed significantly since 2004, for example mobile broadband services and Wi-Fi access points have increased in availability and are having greater social impact.
ACMA has revealed that most interference occurs from low-powered, class-licensed devices to mobile broadband services, or between apparatus-licensed devices. It said in the latter case, this was often due to faulty equipment, poor site engineering, breaches of licence conditions or unlicensed operation.
The paper suggests that the development of a competitive market for the provision of interference diagnosis services should result in earlier resolution of many interference issues, which would allow ACMA to better focus its resources on activities such as its proactive compliance program, escalated enforcement action, and complaint response.
A copy of the Consultation Paper is available here.
ASIC seeks consultation on Telecommunications Intercept material
On 20 July 2017 the ASIC Enforcement Review Taskforce (the Taskforce) released its Positions and Consultation Paper 'ASIC’s Access to Telecommunications Intercept Material' (Consultation Paper). The Consultation Paper outlines reforms to enhance ASIC’s access to telephone intercepts for the investigation and prosecution of serious corporate law offences.
Commonwealth legislation prohibits access to material sourced from live stream communications over a telecommunications service and sets out a regime for specified agencies to apply for telephone intercept warrants and/or receive telephone intercept material for the purposes of investigating and prosecuting offences. Currently, ASIC cannot seek a warrant to obtain or receive intercept material when investigating serious contraventions of the Corporations Act 2001 unless another agency chooses to share such material with ASIC for the purposes of an investigation.
The Taskforce has been established by the Government to assess the suitability of the regulatory tools available to ASIC and whether there is a need to "strengthen ASIC’s toolkit".
Submissions to the Taskforce closed on 17 August 2017.
ACCC seeks consultation on NBN Co's revised SAU variation
On 2 August 2017, the ACCC released its consultation paper 'Variation to NBN Co Special Access Undertaking' (Consultation Paper). The Consultation Paper invites submissions on a revised variation to the Special Access Undertaking (SAU) governing NBN Co.
While "many aspects of NBN Co's variation are unchanged," the revised variation now incorporates fibre-to-the-node, fibre-to-the-basement and hybrid fibre coaxial technologies into the SAU model. This has the effect of extending the current NBN pricing structure to these technologies. The revised SAU variation replaces the previous variation, which was withdrawn by NBN Co following a draft decision by the ACCC to reject it.
The Consultation Paper focuses on the key non-price changes between the previous SAU variation and the revised SAU variation, which include the:
- reinstatement of the 'Network Boundary Point' definition;
- removal of the term ‘any other telecommunications network or other network elements, platforms, systems and functions owned or controlled by, or operated by or on behalf of, NBN Co or any Related Body Corporate of NBN Co’ from the definition of ‘NBN Co Network’ (while retaining the terms 'NBN Co FTTB Network', 'NBN Co FTTN Network', 'NBN Co Fibre Network', 'NBN Co HFC Network', 'NBN Co Wireless Network', and 'NBN Co Satellite Network' from the same definition); and
- refinement of the ‘co-existence’ and ‘remediation’ clauses and limiting the period in which the provisions apply to module 1 of the SAU.
It also seeks views on NBN Co’s submissions in support of the SAU price terms.
The Consultation Paper is available here.
ACMA announces multiband spectrum auction
The ACMA has announced its first auction of spectrum licenses that cover a variety of bands suitable for, amongst other uses, potential 5G mobile services. In the consultation paper 'Draft Allocation Instruments for Multiband Spectrum—Residual Lots Auction' issued on 2 August 2017, the ACMA proposes to auction a "multi-band" spectrum comprising lots from the 1800MHz, 2GHz, 2.3GHz and 3.4GHz bands. It is expected to start as early as November this year through a proposed auction process similar to that used for the 700MHz auction that occurred earlier this year.
Considering that the spectrum may be used for 4G or potentially 5G networks, the ACMA has determined that there is likely to be demand for the multiband residual lots, which were either not allocated in earlier auctions or have become available following spectrum licence reissue processes. The Australian Communications Minister Mitch Fifield, has sought advice from the ACCC regarding the imposition of competition limits, suggesting that they are likely to be most appropriate for the spectrum in the 1800MHz and 2GHz bands.
The Consultation Paper and related documents are available here.
Interactive gambling regulation reforms
The Interactive Gambling Amendment Act (Amendment Act) will amend the Interactive Gambling Act 2001 (the IGA) to implement the Government's response to recommendations in the 2015 Review of the impact of illegal offshore wagering (the Review).
The Australian Government commissioned the Review to investigate the impacts of illegal offshore wagering on Australia, measures to mitigate its effects, and the efficacy of consumer protection controls. The Review found that offshore wagering has adverse effects on the Australian wagering, hospitality and sporting industries, problem and at-risk gamblers, and consumers. The Review also noted that offshore operators pay no Australian taxes, racing or sporting fees, do not share information regarding suspicious betting activity with law enforcement or sporting bodies, offer gambling services prohibited under the IGA, and provide minimal harm minimisation and consumer protection controls.
The key amendments to the IGA include:
- amending the law to make it illegal for gambling companies to provide certain gambling services to Australians unless the person or company holds a licence under the law of an Australian state or territory;
- introducing new compliance and enforcement measures, including civil penalties, to complement existing criminal offence provisions, and making the ACMA responsible for the entire complaints-handling process from receipt to enforcement;
- introducing other disruption measures to curb illegal offshore gambling activity, such as referring company directors or principals of offending gambling companies to Australian border protection agencies for inclusion on the Movement Alert List, so any travel to Australia can be disrupted;
- clarifying the regulation of ‘click-to-call’ in-play betting services and introducing an exception for certain place-based betting services; and
- introducing a prohibition on certain wagering operators offering lines of credit to Australians or facilitating the provision of lines of credit via third parties such as ‘payday’ lenders.
A copy of the Amending Act is available here.
ACCC releases Broadband Speed Claims Industry Guidance
The ACCC has released Broadband Speed Claims Industry Guidance (Guidance) for retail service providers (RSPs) on how to advertise speeds for fixed-line broadband services, including clearly identifying typical peak speeds.
ACCC announced that the Guidance was prepared in consultation with network operators, RSPs and consumer representatives, and was drafted in accordance with the best practice principles for marketing (both sales and after-sales practices) released by the ACCC in February 2017. It was designed with the aim to provide greater information and support available to broadband consumers and to promote competition among RSPs, having regard to practicalities that RSPs may face in developing and substantiating their speed claims.
The four key guidelines for RSPs are that they should:
- indicate, in their plan descriptions and when marketing broadband plans that they supply over the National Broadband Network (NBN) and similar fixed-line based broadband access networks, the speeds at which the plans typically operate during the busy evening period;
- in order to assist consumers to readily compare plans, adopt a standardised labelling system (basic evening speed, standard evening speed, standard plus evening speed and premium evening speed) that indicates a minimum ‘typical busy period speed’ for the plan;
- take steps to provide remedies to those customers that cannot obtain the speeds at which their selected plan typically operates due to their particular network connection; and
- for services supplied over FTTB and FTTN connections, where there is clear potential for some consumers to not receive typical plan speeds, RSPs should include clear and prominent disclosure in product descriptions and marketing, and give point of sale or post sale information and assistance to affected customers.
ACCC will review the Guidance in 12 months to ascertain whether it has been effective in addressing consumer concerns about broadband speed claims and the comparability of fixed line broadband plans.
The Guidance is available here.