Part 1 Introductory
1 Name
of instrument [see Note 1]
This instrument is the Telecommunications (Customer Service Guarantee) Standard 2000 (No. 2).
2 Commencement
[see Note 1]
This instrument commences on gazettal.
3 Revocation
of Telecommunications (Customer Service Guarantee) Standard 2000
Telecommunications (Customer Service Guarantee)
Standard 2000, made by the ACA on 15 May 2000 and notified in the Gazette
on 24 May 2000, is revoked.
4 Interpretation
(1) In this instrument, unless the contrary intention
appears:
Act means the Telecommunications (Consumer
Protection and Service Standards) Act 1999.
affected customer means a customer of a
carriage service provider to whom the carriage service provider is, or is
likely to be, liable to pay damages under section 116 of the Act as a result of
contravention by the provider of a performance standard.
alternative service means a service that
provides a customer with access to a telephone service.
Note An example of an alternative service
is a call diversion to a mobile telephone service or a second fixed telephone
service.
building includes a structure, caravan and
mobile home.
connection period means the period taken to
connect a customer to a specified service in response to a request by the
customer.
CSG service means an eligible telephone
service supplied by a carriage service provider (including a reseller) to a
customer of the provider, but does not include:
(a) a public mobile telecommunications service;
or
(b) a designated basic rate ISDN service; or
(c) a satellite
service;
unless that service is supplied, or offered to be supplied, to
fulfil the obligation in paragraph 9 (1) (a) of the Act.
Note A CSG service does not include
sophisticated business‑oriented services (such as Telstra’s Centel,
Siteline, Worldsource, VMS and CVPN services and similar services) offered by
carriage service providers, unless they are supplied, or offered to be
supplied, to meet the obligation specified in paragraph 9 (1) (a) of
the Act.
customer means:
(a) a customer of a carriage service provider;
or
(b) a person who requests, or has requested, the
connection of a specified service;
but does not include a carrier or a carriage service provider.
designated basic rate ISDN service has the
same meaning as in subsection 10E (4) of the Act.
eligible telephone service means:
(a) a standard telephone service; or
(b) a carriage service that would be a standard
telephone service but for the fact that it is used for a purpose other than the
purpose specified in paragraph 6 (1) (a) or (b) of the Act.
enhanced call handling feature means any of
the following features when activated by a carriage service provider:
(a) call waiting (enabling a customer to receive
a second call on a telephone service while engaged on a call);
(b) call forwarding (causing a call directed to a
number to be redirected to a stored number);
(c) call barring (enabling a customer to control
access to some, or all, network numbers before a call is established), but not
a call barring option that a carriage service provider programs into its
network;
(d) calling number display (enabling a customer
to identify the number of a calling party);
(e) calling number display blocking (enabling a
customer to prevent the display of his, her or its number to a called party).
exemption means an exemption under Part 3.
external plant facility means a facility
that is:
(a) not located in a telephone exchange; and
(b) accessible by a carriage service provider to
connect a customer of the carriage service provider to a standard telephone
service.
extreme weather conditions means weather
conditions that meet one or more of the criteria specified in Schedule 3.
fault or service difficulty, in relation to
a specified service, means:
(a) absence of a dial or ring tone; or
(b) inability to make or receive calls; or
(c) disruption to communications because of
excessive noise levels; or
(d) repetition of service cut offs; or
(e) another condition that makes the service
wholly or partly unusable; or
(f) if the service includes an enhanced call
handling feature — the feature is not operative.
guaranteed maximum connection period is a
connection period mentioned in section 9.
guaranteed maximum rectification period is a
rectification period mentioned in section 12.
interim service means a service:
(a) that provides a customer with:
(i) a service for voice telephony; or
(ii) if voice telephony is not
practical for a customer with a disability ¾
a service equivalent to a service for voice telephony;
which may or may not include at the
provider’s discretion a data capability or any enhanced call handling feature;
and
(b) for which that customer is, or may be,
charged an amount for the ongoing supply of that service at the location
requested by the customer that does not exceed the amount that the customer
would have been charged if the customer were supplied with a CSG service on
request; and
(c) that is supplied to a customer:
(i) for a period that does not exceed
6 months from the time of the customer’s request for the connection of a
standard telephone service; or
(ii) with the agreement of the
customer, for a longer period.
Example of provision of an
interim service
Provision of a mobile telephone
service (at standard telephone service rates) to replace a standard telephone
service.
performance standard means a requirement
under Part 2 with which a carriage service provider must comply.
rectification period means the period taken
to rectify a fault or service difficulty in a specified service, whether in
response to a report by the customer or in other circumstances mentioned in
Division 3 of Part 2.
remote location without infrastructure
means:
(a) a site outside a standard zone that:
(i) is not in close proximity to
external plant facilities (being facilities used in the supply of a telephone
service); or
(ii) is in close proximity to such
facilities, where the facilities needed to supply the service do not have
sufficient available capacity to support the service requested by the customer
at the time of the request; or
(b) a site that is within a standard zone (but
not within an urban centre or a locality or other recognised community grouping
with a population equal to or greater than 200 people) that:
(i) is not in close proximity to
external plant facilities (being facilities used in the supply of a telephone
service); or
(ii) is in close proximity to such
facilities, where the facilities needed to supply the service do not have
sufficient available capacity to support the service requested by the customer
at the time of the request.
Note Information about the current method
of delimitation of urban centres and localities, and a listing of current urban
centres and localities, may be found in the Australian Bureau of Statistics
publication Statistical Geography: Volume 3 – Australian Standard
Geographical Classification (ASGC) Urban Centres/Localities, 1996 Cat. No.
2909.0.
reseller means a carriage service provider
who acquires a carriage service from another carriage service provider for the
purpose of supplying that service to a customer.
satellite service has the same meaning as in
subsection 106 (4) of the Act.
site means:
(a) land; or
(b) a building, or other structure, on land.
specified service means:
(a) a CSG service; or
(b) an enhanced call handling feature.
standard zone has the same meaning as in
section 108 of the Act.
TIO means the Telecommunications Industry
Ombudsman.
working day, in a location, means a day that
is not a Saturday, Sunday or public holiday in the location.
Note 1 Each of the following
expressions used in this instrument has the meaning given by the Act:
·
approved standard marketing plan
·
primary universal service provider
·
service obligation
·
standard telephone service
·
Telecommunications Industry Ombudsman
·
universal service area.
Note 2 Each of the following words
and expressions used in this instrument has the meaning given by the Telecommunications
Act 1997:
|
·
ACMA
|
·
facility
|
|
·
carriage service
|
·
numbering plan
|
|
·
carriage service provider
·
carrier
|
·
public mobile telecommunications service
|
|
·
communications
|
·
telecommunications industry.
|
|
·
connected
|
|
(2) For the purposes of this instrument, if a report to,
or request by a customer of, a carriage service provider that is made under a
performance standard is received by the carriage service provider after
5 pm on a working day, the report or request is taken to be received by
the provider on the next working day.
Part 2 Performance
standards
Note 1 Section
115 of the Act provides for ACMA to make standards to be complied with by
carriage service providers.
Note 2 Section
122 of the Act provides that a contravention of a standard in force under
section 115 of the Act is not an offence.
Division 1 Preliminary
5 Arrangements
with customers
(1) A carriage service provider of a specified service
may make arrangements with a customer of the carriage service provider for the
provider:
(a) to connect the customer to the service; and
(b) to rectify faults or service difficulties for
the customer.
(2) The carriage service provider must make reasonable
efforts to obtain the agreement of its customers to the terms of arrangements,
particularly in regard to connection and rectification periods.
(3) The carriage service provider must comply with
arrangements, made under this section, to which it is a party.
(4) The carriage service provider must keep a record of
its arrangements and retain a copy of the record for a period of not less than
2 years.
(5) If, when making arrangements to connect a customer
to a service, or to rectify a fault or service difficulty, a carriage service
provider has relied, or is likely to rely, on an exemption, the carriage
service provider must inform the customer of its reliance, or likely reliance,
on the exemption when making the arrangements.
Note Part 3 deals with exemptions.
6 Information to be given to customers
(1) As soon as practicable after a carriage service
provider connects a customer to a CSG service, the carriage service provider
must give written information to the customer about:
(a) the performance standards that apply to
supply of specified services; and
(b) the obligations of the provider under those
standards; and
(c) the customer’s entitlements to damages under
section 116 of the Act for contravention of a performance standard.
(2) The carriage service provider must, at least once
in each period of 2 years, make available to its customers written information
about:
(a) the performance standards that apply to
supply of specified services; and
(b) the
obligations of the provider under those standards; and
(c) the customers’ entitlements to damages under
section 116 of the Act for contraventions of those standards.
Example of information to be given to customers in writing
Publication of information in a telephone directory or as
part of other general information published by the carriage service provider.
(3) If a carriage service provider is asked by a
customer of the carriage service provider for information about a performance
standard, the provider must give the information to the customer.
8 Cooperation
of customers with carriage service providers
(1) A performance standard does not apply where:
(a) a carriage service provider has made a
reasonable offer to supply the customer with an interim service or an
alternative service, and the customer has refused to accept the supply of the
interim service or alternative service; or
(b) a carriage service provider offers a
customer an interim service and an alternative service, and:
(i) in making this offer, the carriage
service provider supplies sufficient information to the customer about the
functionality of each service and the terms and conditions of supply of each
service to enable the customer to make an informed judgement about the relative
merits of each service; and
(ii) the
customer accepts the offer of an alternative service.
(2) For the purposes of paragraph (1) (a), an
offer by a carriage service provider to supply a customer with an alternative
service is a reasonable offer if the offer:
(a) provides the customer with a choice between
an interim service and an alternative service to enable the customer to make an
informed judgment about the relative merits of both services as offered; and
(b) provides sufficient information about how the
functionality and the terms and conditions of supply of the alternative service
would be of benefit to the customer, relative to an interim service.
(3) For the purposes of paragraph (2) (b), a
carriage service provider is taken to have supplied sufficient information to a
customer about the functionality of a service, and the terms and conditions of
supply of that service, if the carriage service provider has supplied to the
customer details of:
(a) any enhanced call handling features that may
be supplied with the service; and
(b) charges payable by the customer; and
(c) connection timeframes; and
(d) the estimated period of supply of the
service, taking into account the estimated time to repair or connect the
service and the maximum period allowed for the supply of an interim service.
(4) In determining whether a carriage service provider
has contravened a performance standard in relation to a customer, regard must
be had to whether the customer:
(a) requested the carriage service provider in
good faith to connect a specified service or rectify a fault or service
difficulty; or
(b) unreasonably withheld agreement to
arrangements, or an appointment, proposed by the carriage service provider; or
(c) missed an appointment with the provider
without giving reasonable notice to the provider; or
(d) unreasonably refused permission to the
provider to enter a site.
(5) A carriage service provider must not, without the
agreement of a customer, supply the customer with an interim service for a
period exceeding 6 months from the time of the customer’s request for the
connection of a standard telephone service.
Division 2 Connection to specified services
9 Guaranteed
maximum connection periods
(1) The period specified in Part 2 of Schedule 1 is the
guaranteed maximum connection period for a customer if:
(a) the site at which the customer requests a
specified service to be connected is in close proximity to an external plant
facility used to supply the service; and
(b) the facility has sufficient capacity
available to supply the service when the request is made.
(2) However, if subsection (1) does not apply, the guaranteed
maximum connection period for a customer is a period determined in
accordance with an approved standard marketing plan for a primary universal
service provider for the universal service area in respect of a service
obligation where the service is supplied or is being offered to be supplied.
Note Clause 2.4.3 of the instrument
titled ‘TELSTRA’S Universal Service Obligation STANDARD MARKETING PLAN’ (as
approved by the Australian Communications Authority on 30 October 2001 and
subsequently varied) provides that, if Telstra cannot supply the standard
telephone service on the date the customer requires it to be connected, Telstra
will aim to supply the standard telephone service within one month (equivalent
to 20 working days) from the date of the customer’s request.
(3) A carriage service provider must comply with a
request by a customer for connection in the guaranteed maximum connection
period unless the arrangements for the connection include provision mentioned
in section 10.
(4) A customer is not taken to have made a request
mentioned in this section to a carriage service provider until the customer has
given to the carriage service provider the information reasonably required by
the provider for those purposes.
(5) This section does not apply if a customer who is
connected by a carriage service provider to a specified service requests
another carriage service provider to supply the service.
10 Arrangements about connection periods
(1) Arrangements to connect a customer of a carriage
service provider to a specified service may provide for connection in a
period that is shorter than the guaranteed
maximum connection period.
(2) Arrangements to connect a customer of a
carriage service provider to a specified service may provide for connection in
a period that is longer than the guaranteed maximum connection period:
(a) if the customer wants the connection to be
made on a day after the end of that period; or
(b) if:
(i) the carriage service provider
makes an offer to the customer, and to a significant number of its other
customers, to connect the service after the end of the relevant guaranteed
maximum connection period; and
(ii) the
customer accepts the offer; and
(iii) the customer would obtain a
significant service benefit as a result of accepting the offer.
Example of a significant customer service benefit
A
substantially cheaper price than would be charged to the customer for
connecting the service in the guaranteed maximum connection period.
(3) Before, or at the same time as, arrangements to which
paragraph (2) (b) apply are made, the carriage service provider must
inform the customer to the effect that:
(a) as a result of the arrangements, the
connection will be made after the end of the guaranteed maximum connection
period; and
(b) otherwise, the
protection and rights under Part 5 of the Act apply in relation to supply of
the service to the customer by the provider.
Division 3 Rectification of faults or service difficulties
11 Application
of Division 3
This Division does not apply to a fault or service
difficulty in relation to a CSG service in respect of:
(a) call barring; or
(b) a limitation on the making of external calls;
if the service was supplied to a customer of a carriage service
provider with that feature because of the credit standing of the customer.
12 Guaranteed
maximum rectification periods
(1) This section applies to a site at which a specified
service is supplied by a carriage service provider to a customer of the
carriage service provider.
(2) If the site is in an urban centre with a population
equal to or greater than 10 000 people, the guaranteed maximum
rectification period ends at the end of the first full working day after the
carriage service provider receives the report of a fault or service difficulty
made by the customer.
(3) Subject to sections 13 and 15, if the site is:
(a) an urban centre with a population less than
10 000 people; or
(b) a locality or
other recognised community grouping with a population greater than 200 people;
the guaranteed maximum rectification period ends at the end of 2
full working days after the carriage service provider receives the report of a
fault or service difficulty from the customer.
(4) Subject to sections 13 and 15, if the site is not
mentioned in subsection (2) or (3), the guaranteed maximum rectification period
ends at the end of 3 full working days after the carriage service provider
receives the report of a fault or service difficulty from the customer.
(5) Subject to section
15, a carriage service provider must, in the relevant guaranteed maximum
rectification period, rectify a fault or service difficulty that is reported to
the carriage service provider by the customer.
(6) In this section:
(a) a reference to an urban centre
is a reference to a geographic area defined as an urban centre in accordance
with criteria used by the Australian Bureau of Statistics for the most recent
Australian Census; and
(b) a reference to
a locality is a reference to a geographic area defined as a
locality in accordance with criteria used by the Australian Bureau of
Statistics for the most recent Australian Census.
Note More information about the current
method of delimitation of urban centres and localities, together with a listing
of current urban centres and localities, may be found in the Australian Bureau
of Statistics publication entitled Statistical Geography: Volume 3 –
Australia Standard Geographical Classification (ASGC) Urban Centres/Localities,
1996 Cat. No. 2909.0.
13 Sites
to which subsection 12 (3) or (4) applies
(1) This section applies to a fault or service
difficulty in relation to a specified service supplied to a customer at a site
mentioned in subsection 12 (3) or (4), if:
(a) the fault or service difficulty can be
rectified without:
(i) external or internal plant work;
or
(ii) the carriage service provider
attending the premises of the customer; or
(b) the specified service has been disconnected
by the carriage service provider as a result of an administrative error that
does not involve damage to a facility.
(2) The guaranteed maximum rectification period for the
fault or service difficulty ends at the end of the first full working day after
the carriage service provider receives a report from the customer about the
fault or service difficulty.
(3) If a person other than the customer reports on
behalf of the customer a fault or service difficulty to the carriage service
provider, the guaranteed maximum rectification period begins when the fault or
service difficulty is reported.
14 Reports
by carriage service providers of faults etc
(1) This section applies to a carriage service provider
(the first provider) if the carriage service provider becomes
aware that:
(a) there is a
fault or service difficulty in the network of another carriage service provider
(the second provider); or
(b) an act or
omission of the second provider may contribute to the first provider being
wholly or partly in contravention of a performance standard.
(2) The first provider must report a matter mentioned in
subsection (1) to the second provider as soon as practicable after the
first provider becomes aware of the matter.
15 Arrangements
about rectification periods
Arrangements to rectify a fault or service
difficulty for a customer may provide for rectification in a period:
(a) that is shorter than the guaranteed maximum
rectification period; or
(b) that is longer than the guaranteed maximum
rectification period if the customer wants the fault or service difficulty to
be rectified on a day after the end of that period.
Division 4 Appointments with customers
16 Interpretation
(1) In this Division, a reference to a customer of a
carriage service provider includes a reference to someone who represents the
customer.
(2) In this Division, a reference to a proposed
appointment includes a reference to an appointment that is changed in
accordance with subsection 17 (4).
17 Making
and changing appointments
(1) For the purposes of connecting a specified service
or rectifying a fault or service difficulty:
(a) a customer of a carriage service provider
may make an appointment with the carriage service provider; and
(b) a carriage service provider may make an
appointment with a customer of the carriage service provider.
(2) The day, and the time of day, proposed by the
carriage service provider for an appointment must be convenient for the
customer.
(3) To comply with subsection (2), a carriage service
provider may propose an appointment:
(a) for a particular time of day; or
(b) in the period between 2 particular times of
day that are not more than 5 hours apart.
(4) Either party to an appointment may change the day,
time of day or location of the appointment:
(a) by giving at least 24 hours notice of the
change to the other party; or
(b) by obtaining the agreement of the other party
to the change.
(5) A carriage service provider must keep an appointment
to which the carriage service provider is a party.
18 Criteria
for determining whether an appointment is kept
(1) If a carriage service provider makes an appointment
for a particular time of day, the carriage service provider is taken to have
kept the appointment if the provider is present at the site of the appointment
not later than 15 minutes after the time of the appointment.
(2) If a carriage service provider makes an appointment
for a period between 2 particular times of day that are not more than 4
hours apart, the carriage service provider is taken to have kept the
appointment if the provider is present at the site of the appointment not later
than 15 minutes after the end of the period.
(3) If a carriage service provider makes an appointment
for a period between 2 particular times of day that are more than 4, but
not more than 5, hours apart, the carriage service provider is taken to have
kept the appointment if the provider is present at the site of the appointment
within the period.
(4) If a carriage service provider makes an appointment
for a period at a site mentioned in paragraph 202 (c) or (d) of Schedule 1
between 2 particular times of day that are more than 4, but not more than 5,
hours apart, the carriage service provider is taken to have kept the
appointment if:
(a) the provider must travel a long distance to
keep the appointment; and
(b) the provider is present at the site of the
appointment not later than 45 minutes after the end of the period.
(5) If
a carriage service provider does not keep an appointment in accordance with
this section, the carriage service provider is taken to have missed the
appointment.
Note Under section 8, in determining
whether a carriage service provider has contravened a standard in relation to
the making of an arrangement or an appointment with a customer, regard must be
had to whether the customer cooperated with the carriage service provider.
Part 3 Exemption
from performance standards
19 Supply
of more than 5 eligible telephone services
(1) If a carriage service provider supplies a customer
with more than 5 eligible telephone services at one time, the carriage service
provider is exempt from complying with a performance standard in relation to
the supply of each of the services.
(2) If a carriage service provider:
(a) is already supplying a customer with 5
eligible telephone services; and
(b) makes arrangements for the supply of 1 or
more additional services to the customer —
the carriage service provider is exempt from complying with a
performance standard in relation to the supply of each of the services
mentioned in paragraphs (a) and (b).
20 Maintenance
and upgrades
(1) A carriage service provider is exempt from complying
with a performance standard in relation to the supply of a specified service to
a customer to the extent that non‑compliance with the standard is a
result of maintenance or upgrading of a facility or network that is used to
supply the service.
(2) However, if an effect of non‑compliance with
the standard would be that a specified service is not supplied to a customer,
the carriage service provider is not exempt unless the carriage service
provider has given to the customer reasonable notice of the non‑compliance.
Note The Telecommunications (Emergency
Call Service) Determination 1999 requires carriage service providers who
supply standard telephone services to ensure that end‑users have access
to emergency call services under both normal and abnormal operating conditions.
21 Credit standing of customers
(1) A carriage service provider is exempt from
complying with a performance standard in relation to connection of a customer
to a specified service if:
(a) the customer would be lawfully obliged to
pay to the provider a charge for:
(i) connection
to the service; or
(ii) the use
of the service; and
(b) the carriage
service provider has reasonable grounds to believe that the customer would be
unable or unwilling to pay the charge as it is due to be paid.
(2) A carriage service provider is exempt from
complying with a performance standard in relation to connection of a customer
to a specified service if the customer has been disconnected from the service
in the following circumstances, and remains disconnected:
(a) the carriage service provider gave to the
customer written notice that the provider considers that the customer had not
paid a charge for:
(i) connection
to the service; or
(ii) the use
of the service;
when it was due
to be paid;
(b) the notice advised
the customer that the customer could apply to the provider for reconsideration
of the proposed decision to disconnect the service and, if not satisfied with
the reconsidered decision, could make a complaint to the TIO about that
decision;
(c) the notice offered
the customer a period of 21 days, starting not earlier than when the customer
received the notice, within which the customer could pay the charge or apply
for reconsideration;
(d) within the period of 21 days, the customer:
(i) did not
pay the charge; and
(ii) did not
apply for reconsideration;
(e) the service was
then disconnected.
(3) A carriage service provider is exempt from
complying with a performance standard in relation to connection of a customer
to a specified service if the customer has been disconnected from the service
in the following circumstances, and remains disconnected:
(a) the carriage
service provider gave to the customer the written notice mentioned in paragraph
(2) (a);
(b) not later than 21
days after receiving the notice, the customer applied to the carriage service
provider for reconsideration of the proposed decision to disconnect the
service;
(c) the carriage
service provider reconsidered the proposed decision after receiving the
application for reconsideration, and confirmed the proposed decision;
(d) the customer did
not make a complaint to the TIO about the decision on reconsideration within 7
days after receiving notice of the decision;
(e) the service was
then disconnected.
(4) A carriage service provider is exempt from
complying with a performance standard in relation to connection of a customer
to a specified service if the customer has been disconnected from the service
in the following circumstances, and remains disconnected:
(a) the carriage service
provider gave to the customer the written notice mentioned in paragraph
(2) (a);
(b) the carriage
service provider reconsidered the proposed decision to disconnect the service
in accordance with paragraph (3) (c), and confirmed the proposed decision;
(c) the customer made
a complaint to the TIO about the decision on reconsideration within 7 days
after receiving notice of the decision;
(d) the TIO gave a
direction about the complaint that had the effect of confirming the decision;
(e) the service was
then disconnected.
22 Circumstances
beyond the control of carriage service providers
(1) A carriage service provider is exempt from
complying with a performance standard to the extent that non‑compliance
with the standard is a result of:
(a) circumstances beyond the control of the
carriage service provider; or
(b) the need to move staff or equipment to an
area affected by circumstances beyond the control of the provider.
Note An exemption under subsection (1)
operates on a provisional level from the time at which the provider first seeks
to rely on it. The exemption will cease to be available if the carriage service
provider fails to comply with the notification requirements in either
subsection 23 (1) or 24 (1). See section 22A.
(2) Circumstances beyond the control of the provider
may include (but are not limited to) the following circumstances:
(a) damage to a facility of the carriage service
provider that is not caused by the carriage service provider;
(b) a natural disaster that:
(i) causes mass outages of specified
services; and
(ii) restricts connection to a
specified service or rectification of a fault or service difficulty;
(c) extreme weather conditions that:
(i) cause mass outages of services;
and
(ii) restrict connection to a specified
service or rectification of a fault or service difficulty;
(d) the carriage service provider is requested by
a public authority to provide emergency communications services to assist in
emergency action, and the provision of those services restricts connection to a
specified service or rectification of a fault or service difficulty;
(e) the carriage service provider is prevented
from connecting a specified service, or rectifying a fault or service
difficulty, because the provider is unable to obtain lawful access to land or a
facility;
(f) a law of the Commonwealth, or of a State or
a Territory, otherwise prevents the carriage service provider from complying
with the performance standard.
(3) However, a carriage service provider is not exempt
from compliance with the performance standard to the extent that:
(a) the non‑compliance is due wholly or
partly to the act or omission of another carriage service provider; and
(b) the exemption does not apply to the other
carriage service provider.
(4) Also, a carriage service provider is not exempt from
compliance with the performance standard unless the carriage service provider
has procedures in place to ensure that the provider does not rely on the
exemption in circumstances that are not beyond the control of the provider.
(5) In paragraph (2) (d):
public authority means:
(a) the Commonwealth or a State or Territory; or
(b) a Commonwealth, State or Territory
authority, including:
(i) a police force or service; and
(ii) a fire service; and
(iii) an ambulance service; and
(iv) a local government authority.
22A Provisional
exemption under section 22
(1) A carriage service provider is taken to be exempt,
on a provisional basis, from complying with a performance standard to the
extent described in subsection 22 (1) during the period:
(a) starting when the provider first seeks to
rely on the exemption; and
(b) ending when the provider first complies with
subsection 23 (1), or complies with subsection 24 (1).
(2) However, if the carriage service provider does not
comply with either of sections 23 and 24:
(a) section 22 ceases to apply to the provider
in relation to the provider’s non‑compliance with the performance
standard; and
(b) the exemption under section 22 is taken never
to have applied to the provider in relation to the provider’s non‑compliance
with the performance standard.
Note Sections 23 and 24 provide different
ways in which a carriage service provider may notify customers and/or ACMA.
(3) If the provider complies with subsection 23 (1)
or 24 (1):
(a) section 22 continues to apply to the
provider in relation to the provider’s non‑compliance with the
performance standard; and
(b) the exemption is taken not to be on a
provisional basis from the time at which the provider complies with the
subsection; and
(c) the provider may describe itself as having
claimed the exemption.
Note Sections 23 and 24 provide different
ways in which a carriage service provider may notify customers and/or ACMA.
23 Notice
to particular customers of provisional exemption under section 22
(1) A carriage service
provider who is taken to be exempt, on a provisional basis, from complying with
a performance standard to the extent described in subsection 22 (1) must
give each customer to whom the exemption relates:
(a) a statement in writing stating:
(i) the fact that the exemption is
available to the provider under section 22; and
(ii) the grounds on which the exemption
is based; and
(iii) if practicable, an estimate by
the provider of the period of time for which the exemption will exist; and
(iv) the entitlement of the customer to
dispute the exemption by:
(A) requesting the provider
to reconsider whether the grounds mentioned in subparagraph (ii) are a proper
basis for the exemption; and
(B) complaining to the TIO;
and
(v) how a customer may contact the
provider in relation to the exemption; and
(b) if the exemption relates to extreme weather
conditions that cause mass outages of specified services and restrict
connection to a specified service or rectification of a fault or service
difficulty — evidence, in writing, that the weather conditions meet one or
more of the criteria specified in Schedule 3.
Note For extreme weather conditions —
see subsection 4 (1).
(2) The carriage service provider must give the
statement mentioned in paragraph (1) (a), and the evidence mentioned in
paragraph (1) (b) (if applicable), to a customer:
(a) if the grounds on which the exemption is
based relate to circumstances mentioned in paragraph 22 (2) (e) or (f) —
as soon as practicable, but in any event not later than 14 weeks after the
first day on which the exemption becomes available to the provider under
section 22; and
(b) in any other case — as soon as
practicable, but in any event not later than 10 working days after the
first day on which the exemption becomes available to the provider under
section 22.
(3) In estimating, for the purposes of subparagraph (1) (a) (iii),
the period of time for which the exemption will exist, the carriage service
provider must have regard to the following:
(a) the effect, on the ability of the provider
to comply with the relevant performance standard, of the circumstances that
relate to the grounds on which the exemption is based;
(b) the resources that the provider would have
to commit, proportionate to that effect, to:
(i) mitigate the consequences of the
circumstances; and
(ii) minimise the duration of the
circumstances.
(4) A customer of a carriage service provider is not
prevented from disputing an exemption only because the provider has complied
with this section.
24 General
notice of exemptions
(1) A carriage service provider who is taken to be
exempt, on a provisional basis, from complying with a performance standard to
the extent described in subsection 22 (1) is not required to comply with
section 23 if the carriage service provider:
(a) as soon as practicable, but in any event not
later than 9 working days after the first day on which the exemption becomes
available to the provider under section 22, requests a publisher to publish the
notice mentioned in subsection 25 (1); and
(b) as soon as practicable, but in any event not
later than 8 working days after the first day on which the exemption becomes
available to the provider under section 22, gives to ACMA and the TIO:
(i) a copy of the notice; and
(ii) the telephone numbers of customers
to whom the exemption relates; and
(c) as soon as practicable, but in any event not
later than 8 working days after the first day on which the exemption becomes
available to the provider under section 22, provides on the internet the
information that is published in the notice; and
(d) as soon as practicable, but in any event not
later than 9 working days after the first day on which the exemption becomes
available to the provider under section 22, gives each of its resellers who has
customers likely to be affected by the exemption, a copy of the notice.
Note Subsection 118A (1) of the Act
provides that if a carriage service provider (the first provider)
contravenes a standard in force under section 115 of the Act and the
contravention is wholly or partly attributable to one or more acts or omissions
of another carriage service provider (the second provider), the
second provider may be liable to pay damages to the first provider for the acts
or omissions.
(2) If the carriage service provider is a reseller, the
reseller may comply with paragraphs (1) (a), (b) and (c) by taking
the action required as soon as practicable, but in any event not later than 2
working days after the day when the reseller receives notice from the carriage
service provider from whom it acquires the service (the supplier)
that an exemption is available to the supplier under section 22.
Note It would be sufficient, for
compliance with paragraph (1) (a), for a notice published by the reseller
to make reference to the notice published by the supplier.
(3) As soon as practicable after a carriage service
provider becomes aware that information given to ACMA and the TIO under
paragraph (1) (b) is no longer current, or is otherwise inaccurate, the
carriage service provider must:
(a) give revised information (including a copy
of any revision of a notice mentioned in subsection 25 (1)) to ACMA and
the TIO in writing; and
(b) if there is a revision of a notice mentioned
in subsection 25 (1):
(i) give a copy of the revision to
each of its resellers who has customers likely to be affected by the exemption;
and
(ii) provide on the internet the
information that is contained in the revision.
25 Public
notification
(1) For the purposes of paragraph 24 (1) (a),
a carriage service provider must publish a notice in at least 1 edition of a
daily newspaper circulating, if a customer to whom the exemption relates
usually resides:
(a) in the capital of a State or Territory, in
the capital; and
(b) in a region of a State or Territory outside
the capital, in that region.
(2) The notice must contain at least:
(a) the information referred to in subparagraphs
23 (1) (a) (i), (ii), (iii), (iv) and (v) and paragraph 23 (1) (b)
(if applicable); and
(b) the specified services to which, and the
ranges of telephone numbers of customers to whom, the exemption relates; and
(c) the approximate number of affected
customers; and
(d) the district, local government area, suburb
or town in which the exemption applies; and
(e) if the exemption only applies in a part of
the area of a district, local government area, suburb or town — the roads
bounding that area; and
(f) information about how the customer may
contact the carriage service provider in relation to the exemption.
(4) Each notice must display a unique numeric or
alphanumeric identifier of the circumstances to which the exemption relates.
(5) A carriage service provider must, on request by a
customer of the carriage service provider, give to the customer a copy of a
notice under this section.
(6) For paragraph (2) (a), the notice will be
taken to contain the information referred to in paragraph 23 (1) (b)
if the notice contains the address of an Internet website:
(a) that is accessible by each customer of the
carriage service provider; and
(b) on which the information referred to in
paragraph 23 (1) (b) is made available.
26 Cessation
of exemptions
A carriage service provider ceases to be exempt
from a performance standard:
(a) if the circumstances to which the exemption
relates are mentioned in section 19, 20 or 21 — when the circumstances
cease to apply; or
(b) if the circumstances to which the exemption
relates are mentioned in section 22 — when the circumstances are no longer
beyond the control of the carriage service provider.
27 Review
of circumstances of certain exemptions
As regularly as practicable, a carriage service
provider to which an exemption is available under section 22 must review the
grounds on which the exemption is based to ensure that the estimated duration
of the exemption is no longer than necessary.
27A Temporary
exemptions
(1) A carriage service provider may apply to ACMA for a
temporary exemption from compliance with performance standards.
(2) An application must:
(a) be in writing; and
(b) describe the geographic area for which the
exemption is sought; and
(c) state the period for which the exemption is
sought; and
(d) give details of the current number of CSG
services the provider supplies in the geographic area for which the exemption
is sought; and
(e) give details of the number of CSG services
the provider estimates it will supply in the geographic area for which the
exemption is sought at the end of the period for which the exemption is sought;
and
(f) give any additional information requested by
ACMA so that it can determine the application.
(3) ACMA may only grant a temporary exemption to a
carriage service provider that applies under this section if it is satisfied
that:
(a) the provider is not a primary universal
service provider; and
(b) the provider has a small share in the market
for CSG services in the geographic area for which the exemption is sought; and
(c) the proposed exemption is likely to result
in a net benefit to end‑users in the geographic area for which the
exemption is sought.
(4) In deciding whether the proposed exemption is
likely to result in a net benefit to end‑users in the geographic area for
which the exemption is sought, ACMA must consider the following matters:
(a) the extent to which the proposed exemption
would lower the cost of entering or competing in the market for CSG services in
the geographic area;
(b) the extent to which the proposed exemption
would be likely to promote sustainable competition for CSG services nationally
and in the geographic area;
(c) the extent to which the proposed exemption
would be likely to result in service improvements for end‑users,
including lower prices, increased quality of service and increased choice of
service;
(d) the number of CSG services affected, or
likely to be affected, by the proposed exemption;
(e) the proportion of the market for CSG
services in that area likely to be affected by the proposed exemption;
(f) the proportion of the market for CSG
services in Australia generally likely to be affected by the proposed
exemption;
(g) the proposed exemption period;
(h) any other matters that ACMA thinks relevant.
(5) The grant of a temporary exemption:
(a) must be in writing; and
(b) must describe the geographic area for which
the exemption is granted; and
(c) must state the period for which the
exemption is granted; and
(d) must not be for more than 5 years; and
(e) may be subject to conditions, including
conditions about when the exemption will end; and
(f) must be subject to a condition that the
provider must comply with subsection (8).
(6) For paragraph (5) (c), the period for which the
exemption is granted may differ from the period specified in the application.
(7) A temporary exemption:
(a) takes effect from the date that it is
granted or a date specified in the grant, whichever is the later; and
(b) does not affect any right, obligation or
liability that arose before the exemption took effect.
(8) A carriage service provider that has been granted a
temporary exemption must notify those customers to whom it supplies a CSG
service within the geographic area described in the exemption (including
prospective customers), and who are likely to be affected by the exemption, of
the following matters:
(a) that the provider has been granted a
temporary exemption from the performance standards by ACMA;
(b) a summary of the performance standards;
(c) the protection and rights of a customer that
would be foregone if the customer entered into a contract for the supply of a
CSG service with the provider;
(d) the period for which the exemption has been
granted;
(e) the geographic area to which the exemption
applies;
(f) how a customer (including a prospective
customer) can get more information about a temporary exemption and its effect
on the protection and rights of a customer.
(9) For subsection (8), the notification must:
(a) be given to a customer by the provider
before the customer enters into a contract with the provider for the supply of
a CSG service; and
(b) be included in the contract for supply of a
CSG service; and
(c) be made available on the Internet; and
(d) be made available to any person on request.
(10) ACMA may, on application by or on behalf of a
carriage service provider, renew a temporary exemption for a further period of
up to 5 years.
(11) This section applies to an application to renew a
temporary exemption in the same way that it applies to an application for a
temporary exemption.
Part 4 Damages
Note Section 117 of the Act provides that
ACMA may specify a scale of damages for contravention of standards under
section 115 of the Act.
28 Categories
of contraventions and damages
The categories of contravention of performance
standards, and the damages payable for each category of contravention, are set
out in Part 2 of Schedule 2.
Part 5 Waiver
of protection and rights by customers
Note Section 120 of the Act provides that
ACMA may make provision for customers of carriage service providers to waive
their protection and rights.
29 Waivers in writing
(1) A customer of a carriage
service provider may waive, wholly or partly, the protection and rights of the
customer under Part 5 of the Act in relation to a carriage service supplied, or
offered to be supplied, by the carriage service provider if the waiver is in
writing that is signed and dated by the customer.
Note A waiver may be given
electronically — see Electronic Transactions Act 1999, subsections
9 (1) and 10 (1).
(2) The document must clearly
identify the customer, the carriage service provider and the specified service
to which the waiver applies.
30 Other
waivers
(1) A carriage service provider may
propose to a customer of the carriage service provider that the customer waive,
wholly or partly, the protection and rights of the customer under Part 5 of the
Act in relation to a carriage service supplied, or offered to be supplied, by
the provider.
(2) The proposal must:
(a) state the protection and rights of the
customer under Part 5 of the Act that would be foregone as a result of
accepting the proposal; and
(b) state the protection and rights of the
customer under that Part of the Act that would not be foregone as a result of
accepting the proposal; and
(c) provide that the customer would obtain a
significant service benefit as a result of accepting the proposal.
Example of a significant customer service benefit
A substantially cheaper price than
would otherwise be charged for the service.
(3) As soon as practicable after the customer accepts
the proposal, the carriage service provider must give to the customer a written
statement of the information mentioned in subsection (2) that clearly identifies the customer, the provider and the service to
which the waiver applies.
(4) The waiver mentioned in a proposal made to a
customer by a carriage service provider takes effect at the end of the period
of 7 days after the day on which the statement mentioned in subsection (2) is
given to the customer unless, before the end of that period, acceptance of the
proposal is withdrawn by the customer.
(5) A carriage service provider must keep a record of a
waiver by a customer of the carriage service provider for not less than 2 years
after the day on which the waiver took effect.
Part 6 Transitional
arrangements for Telecommunications (Customer Service Guarantee) Amendment
Standard 2006 (No. 1)
31 Definitions for Part 6
In this Part:
amended Standard means the Telecommunications
(Customer Service Guarantee) Standard 2000 (No. 2)
as amended by the Telecommunications (Customer Service Guarantee) Amendment
Standard 2006 (No. 1).
commencement day means the day on which the Telecommunications
(Customer Service Guarantee) Amendment Standard 2006 (No. 1)
commences.
former Standard means the Telecommunications
(Customer Service Guarantee) Standard 2000 (No. 2)
as in force immediately before the commencement day.
32 Exemptions
relied upon under former Standard
(1) If:
(a) a carriage service provider relied on an
exemption under the former Standard before the commencement day; and
(b) the provider had complied with section 23 or
24 of that Standard before the commencement day; and
(c) the exemption was still available to the
provider immediately before the commencement day;
subsection 22A (3) of the amended Standard is taken to apply in
relation to the provider.
(2) In addition to subsection (1), the provider may
describe itself as having claimed the exemption in accordance with paragraph
22A (3) (c) of the amended Standard.
(3) If:
(a) a carriage service provider relied on an
exemption under the former Standard before the commencement day; and
(b) the provider had not complied with section 23
or 24 of that Standard before the commencement day; and
(c) the exemption was still available to the
provider immediately before the commencement day;
section 22A of the amended Standard applies in relation to the
exemption.
33 Contraventions
and damages
(1) If a contravention set out in column 2 of item 201,
202, 203 or 204 of Part 2 of Schedule 2 to the former Standard (a delay)
occurred, or first occurred, before the commencement day, the damages payable
in relation to the contravention are to be worked out as if the former Standard
had not been amended by the Telecommunications (Customer Service Guarantee)
Amendment Standard 2006 (No. 1).
(2) If a contravention set out in column 2 of item 205
of Part 2 of Schedule 2 to the former Standard occurred before the commencement
day, the damages payable in relation to the contravention are to be worked out
as if the former Standard had not been amended by the Telecommunications
(Customer Service Guarantee) Amendment Standard 2006 (No. 1).