Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

TELECOMMUNICATIONS (SERVICE PROVIDER DETERMINATIONS) AMENDMENT REGULATIONS 2000 (NO. 1) 2000 NO. 246

Statutory Rules 2000 No. 246

Issued by the Authority of the Minister for Communications, Information Technology and the Arts

Telecommunications Act 1997

Telecommunications (Service Provider Determinations) Amendment Regulations 2000 (No. 1)

Section 594 of the Telecommunications Act 1997 (the Act) allows the Governor-General to make regulations under the Act.

Section 99 of the Act provides for the Australian Communications Authority (the ACA) to make a written determination setting out rules that apply to service providers in relation to the supply of specified carriage services. However, subsection 99(3) provides that the ACA must not make a service provider determination unless the determination relates to a matter specified in the regulations or in section 346.

The purpose of the regulations is to amend the current Telecommunications (Service Provider Determinations) Regulations 1997 (the regulations) to specify certain matters for which the ACA may make a determination. The accompanying regulations provide that the ACA may make a determination relating to:

*       the collection of information and verification of identity of purchasers and end-users of pre-paid carriage services (for example, mobile phones); and

*       the specification of information in relation to the telecommunications industry that a carriage service provider must publish or distribute.

Currently the regulations enable the ACA to make a service provider determination in relation to the collection of information from, and conducting verification and identity checks on, purchasers of pre-paid carriage services.

The broad purpose of the current regulations, and the ACA determination made under them, is to ensure that law-enforcement agencies can gain customer identity information where a person purchases a prepaid carriage service that involves the issuing of a public number. Currently, GSM mobile telephone services require a "Subscriber Identity Module" (SIM) which identifies the end-user of the service. A SIM card is required to use a GSM mobile phone. Pre-paid SIM cards can be purchased from a variety of retail outlets, and these SIM cards can then be used with any GSM mobile handset. Without a requirement on the issuer of the service to record customer identification information it would be possible to use the service anonymously and this has the potential to constrain law enforcement agencies in their ability to intercept use of communications services for criminal purposes.

However, the current regulations only enable the ACA to make a determination about collecting and verifying identification of purchasers of the service. Law enforcement agencies have expressed some concern that the existing arrangements focus on the purchaser of the service, who will often not be the end-user of the service. The agencies are concerned that for the purposes of intercepting communications being used for criminal purposes, information on the identity of the end-user is required. To this end the Australian Mobile Telecommunications Association developed an alternative method for collecting and verifying information, based on post sale collection of information and verification and identity checks, from the end-user.

Under the post sale system the service will not be activated until the person using the service completes a verification process over the phone. Until activation the service will only be able to make emergency service calls and be able to call the carriage service provider in order to go through the verification process.

The accompanying regulations amend the current regulations to enable the ACA to make a determination about both the collection of information and verification of identity of the purchaser at the point of sale, and the collection of information and verification of identity of the end-user after the sale and before the service is activated.

The second matter included in the accompanying regulations provides that the ACA may make a. determination that specifies information in relation to the telecommunications industry that a carriage service provider must publish or distribute and the method or way in which the carriage service provider must distribute or publish that information.

It is desirable that the ACA has a power to enable information to be distributed to telecommunications customers through carriage service providers. Simply relying on particular companies within the telecommunications industry to inform their customers about telecommunications issues runs the risk of an imbalance in the type of information being disseminated. For example, issues that are potentially sensitive to carriage service providers such as unfair selling practices, land consumer rights and carriage service provider obligations under the customer service guarantee (CSG) are areas that the industry might not voluntarily choose to keep the public informed about. There is also no guarantee that each organisation benefiting from operating in the telecommunications industry also shares the burden of costs associated with keeping the public informed.

Such material which the ACA may specify that a carriage service provider must publish could include factual information, for example about the operation of the CSG under Part 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999. The CSG is a Government initiative that requires carriage service providers to pay financial compensation to customers where certain minimum performance requirements as specified in the CSG Standard are not met. It is apparent that there is a lack of community awareness of the CSG, including awareness of the Standard's origins, aims, performance requirements for carriage service providers, as well as consumers' rights and the level of damages available for consumers under the Standard. There is the possibility that carriage service providers might seek to exploit this lack of community awareness of the CSG or misrepresent the Government's CSG initiative as company policy.

Details of the regulations appear in the Attachment.

The regulations commenced on gazettal.

ATTACHMENT

DETAILS OF THE REGULATIONS

Regulation 1 - Name of Regulations

Regulation 1 provides that the name of the accompanying regulations is the Telecommunications (Service Provider Determinations) Amendment Regulations 2000 (No. 1).

Regulation 2 - Commencement

Regulation 2 provides that the accompanying regulations commence on gazettal.

Regulation 3 - Amendment of Telecommunications (Service Provider Determinations) Regulations

Regulation 3 provides that Schedule 1 amends the Telecommunications (Service Provider Determinations) Regulations.

Schedule 1 - Amendments

Item 1 - Regulation 1

Item 1 replaces the heading of Regulation 1 with "Name of Regulations" and provides that the regulations as amended are the Telecommunications (Service Provider Determinations) Regulations 1997.

Item 2 - Regulation 3, after definition of Act

Item 2 inserts a definition of the term activate as it relates to pre-paid carriage services. The definition means that a pre-paid carriage service will not be activated if it cannot receive calls, and the only calls from the service that can be connected are calls to the carriage service provider supplying the service and to the emergency call service.

Item 3 - Regulation 3, after definition of criminal law-enforcement agency

Item 3 inserts a definition of the term end-user. The definition, for the purposes of pre-paid carriage services, is a person who uses the service to make calls.

Item 4 - Regulation 3, after definition of public number

Item 4 inserts a definition of purchaser. The definition, for the purposes of pre-paid carriage services, is the person who pays: for the service at the point of sale.

Item 5 - Regulation 4, heading

Item 5 replaces the heading of regulation 4 with "Collecting information for selling a pre-paid carriage service - purchaser at point of sale".

Item 6 - Subregulation 4(1)

Item 6 replaces the word "collects" with the phrase "collects, at the point of sale" to distinguish the collection of information at the point of sale from the collection of information post sale that is provided for in proposed regulation 5A.

Item 7 - Paragraph 4(3)(c), examples

Item 7 substitutes the current example of information that may be collected from a purchaser that is not an individual under paragraph 4(3)(c), so as to include an Australian Business Number.

Item 8 - Regulation 5, heading

Item 8 replaces the heading of regulation 5 with "Verification and identity checks for selling a pre-paid carriage service - purchaser at point of sale".

Item 9 - Subregulation 5(1)

Item 9 replaces the word "conducts" with the phrase "conducts, at the point of sale" to distinguish the verification and identity checks at the point of sale from the verification and identity check post sale which is provided for in proposed regulation 5A.

Item 10 - Subregulation 5(3) and examples

Item 10 replaces the existing subregulation 5(3) with two new regulations, 5A and 5B.

Regulation 5A enables the Australian Communications Authority (ACA) to make a determination that includes a process for the collection of information, verification and identity check of end-users after the sale of the pre-paid carriage service.

Subregulation 5A(1) specifies that the ACA determination may require a service provider to collect information from the end-user post sale, or conduct verification and identity cheeks of the end-user post sale, or require both the collection of information and verification and identity checks.

Subregulation 5A(2) places certain limits on the determination. The determination must not relate to a purchaser of a pre-paid carriage service where relevant information requirements have been satisfied through a previous sale to the end-user of the same kind of service for use with a particular public number, or through the Telecommunications (Conditions for Allocation of Numbers) Determination 1997.

Subregulation 5A(3) provides that the information required under subregulation 5A(1) can only relate to the following matters:

*       information the service provider is required to collect in order to provide and maintain the integrated public number database; or

*       information about how many public numbers are currently issued to the end-user for the same kind of prepaid carriage service (this relates to subregulation 5B); or

*       where the purchaser is not an individual (eg a company), additional information which can identify the end-user, such as an Australian Business Number, Australian Company Number or Australian Registered Business Number.

Regulation 5B adds an additional criterion under which verification and identity checks can differ in a determination made under regulation 5 or regulation 5A.

The regulation enables the verification and identity checks in the determination to differ on the following basis:

*       the person is issued with 5 or more public numbers in connection with the supply of the same kind of pre-paid carriage service;

*       how the service is purchased (eg. by cash, or cheque or credit card); or

*       the process by which the service provider has indicated they intend to conduct verification and identity checks, ie. either point of sale or post sale.

This regulation provides examples of how the determination under subregulation 5(1) or paragraph 5A(1)(b) may differ according to the method of purchase of the pre-paid carriage service.

Item 11 - Subregulation 6(1)

Item 11 replaces "regulation 4" with "regulation 4 or paragraph 5A(1)(a)". This means that the ACA may make a determination about the service provider keeping records of information required under regulation 4 (point of sale process) or paragraph 5A(1)(a) (post sale process).

Item 12 - Subregulation 6(2)

Item 12 replaces "regulation 5" with "regulation 5 or paragraph 5A(1)(b)". This means that the ACA may make a determination about the service provider keeping records of the documents used for verification and identity checks in regulation 5 (point of sale process) or paragraph 5A(1)(b) (post sale process).

Item 13 - Regulation 7

Item 13 replaces "regulation 4 or 5" with "regulation 4, 5 or 5A". This means that the ACA may make a determination preventing a service provider allowing a person from using a public number for a pre-paid carriage service where the service provider is aware that the information, mentioned in a determination for regulation 4, 5, or 5A, is materially false or misleading.

Item 14 - Paragraph 8(2)(a)

Item 14 replaces "regulation 4" with "regulation 4 or paragraph 5A(1)(a)". This means that the ACA may make a determination about a service provider not allowing a person to use a public number for a pre-paid carriage service if, amongst other things, the service provider has an incomplete record of information about the person, mentioned in a determination made under regulation 4, or paragraph 5A(1)(a).

Item 15 - Regulation 9

Item 15 replaces "regulation 4, 5" with "regulation 4, 5, 5A". This means that the ACA may make a determination about service providers telling users of pre-paid carriage services of the effect of determination made under regulation, 4, 5, 5A, 7 or 8.

Item 16 - After regulation 9

Item 16 introduces a new regulation 10 "Information in relation to the telecommunications industry".

Regulation 10 provides for the ACA to make a determination specifying the information in relation to the telecommunications industry that a carriage service provider must publish or distribute and the method or way in which that information must be distributed or published.

This would enable the ACA to make a determination about the publishing or distribution of material about the operation of the customer service guarantee (CSG) under Part 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999. For example it may make a determination to publish or distribute material such as the consumer rights and carriage service provider obligations under the CSG.