1 Citation
[see Note 1]
This Declaration may be cited as the Carrier
Licence Conditions (Telstra Corporation Limited) Declaration 1997.
2 Commencement
This Declaration commences on 1 July 1997.
3 Definitions
In this Declaration:
ACA means the Australian Communications
Authority.
ACMA means the Australian Communications and
Media Authority.
allocated number means a number allocated
under the authority of the numbering plan.
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 to a second fixed
telephone service.
Alternative Network means the mobile
telecommunications network, or combination of networks, used to provide the
mobile carriage services marketed by the licensee as Next G services.
call conveyancing costs means the costs
associated with any additional routing and processing required within the
licensee’s telecommunications network in order to transfer a call to the
telecommunications network operated by Optus where the called customer has
ported his or her number to Optus.
CDMA means Code Division Multiple Access.
CDMA network means the mobile
telecommunications network, or combination of networks, used to provide the
mobile carriage services marketed by the licensee as CDMA services.
CDMA site means:
(a) a metropolitan CDMA site; or
(b) a non-metropolitan CDMA site.
Consumer Protection Act means the Telecommunications
(Consumer Protection and Service Standards) Act 1999.
coverage means an area in which customers of
a carrier or carriage service provider which supplies a mobile
telecommunications service are ordinarily able to make or receive calls by
means of that carrier’s or provider’s network.
Note It is intended that the coverage of
a carrier’s or carriage service provider’s public mobile telecommunications
service includes areas in which customers of that service are ordinarily able
to make or receive calls by means of the carrier’s or provider’s network but,
for reasons such as system or network failure or network congestion, are unable
to do so from time to time.
current industry development plan has the
meaning given by clause 7 of Schedule 1 to the Act.
customer transfer costs means the one‑off
administrative costs incurred by the licensee for the initial transfer of a
customer from the licensee’s telecommunications network to the
telecommunications network operated by Optus.
customer includes the nominee of a customer.
designated basic rate ISDN service has the
meaning given by subsection 66 (2) of the Act.
emergency call service has the meaning given
by section 7 of the Act.
emergency service means a service mentioned
in paragraph (b) of the definition of emergency call service in
section 7 of the Act.
enforcement agency has the meaning given by
section 282 of the Act.
EVDO service means the Evolution Data Only or
Evolution Data Optimized service provided via the licensee’s CDMA network.
industry development plan has the
meaning given by clause 6 of Schedule 1 to the Act.
Industry Minister means the Minister for
Industry, Science and Tourism.
inoperative in relation to a STS, means:
(a) an absence of dial or ring tone; or
(b) an inability to make or receive calls; or
(c) disruption to communications because of
excessive noise levels; or
(d) repetition of service cut off; or
(e) another condition that makes the service
wholly or substantially unusable.
interim priority service means a service that
satisfies the technical and functional requirements (if any) specified in a written
instrument made by the ACA:
(a) that provides a customer with:
(i) a service for voice telephony; or
(ii) a service equivalent to a service
for voice telephony where voice telephony is not practical for a customer with
a disability;
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:
(i) an access charge that, when added
to the access charge normally charged for the STS for which the interim
priority service is being provided in substitution, does not exceed the amount
of the access charge normally charged for the STS; and
(ii) call charges that do not exceed
the call charges that are normally charged for the kind of service the interim
priority service is, when the interim priority service is not supplied as an
interim priority service.
Note 1 An
example of the provision of an interim priority service is the provision of a
terrestrial or satellite mobile telephone service (at mobile call rates) to
replace a STS.
Note 2 If
a customer has paid or is paying an access charge in relation to a STS, for
which an interim priority service is provided in substitution, the customer is
not intended to be charged an access charge for the interim priority service.
Note 3 While
a customer may be charged for calls using an interim priority service at the
charge normally applicable to the kind of service the interim priority service
is, the licensee is not required to charge that charge.
licensee means Telstra Corporation Limited
(ACN 051 775 556).
local number portability means the ability to
convey portable local service numbers from the licensee’s telecommunications
network to the telecommunications network operated by Optus.
local service means a carriage service that
is:
(a) capable of voice telephony; and
(b) provided for receiving incoming calls, wholly
or principally, at 1 fixed location where that location is in an area
identifiable by the carriage service provider with which the call originates,
from the number called and is:
(i) a switching facility; or
(ii) the premises occupied or used by a
customer; or
(iii) in the immediate vicinity of the
premises occupied or used by a customer.
location dependent carriage service means a carriage
service that depends for its provision on the availability of information about
the street address of the caller.
metropolitan area means a designated area
described in the Schedule to the Spectrum Re-allocation Declaration No. 2 of
1997 as in force on the date the instrument was made.
metropolitan CDMA site means a base station,
located in a metropolitan area, which is used as part of the CDMA network
operated by the licensee.
Minister means the Minister for
Communications, Information Technology and the Arts.
non‑metropolitan area means an area
within Australia (other than the Territories of Christmas Island and Cocos
(Keeling) Islands) that is not a metropolitan area.
non-metropolitan CDMA site means a base
station, located in a non-metropolitan area, which is used as part of the CDMA
network operated by the licensee.
operator assistance service means a service
involving the connection of a telephone call by an operator.
operator services means:
(a) services for dealing with faults and service
difficulties; and
(b) services of a kind specified in regulations
made under the Act.
Optus means Optus Networks Pty Ltd (ACN 008
570 330).
portable local service number means an
allocated number that is used in connection with a local service other than a
paging service.
post-paid mobile service plan means a plan
under which calls made using a mobile carriage service are paid for after the
service is used.
pre-paid mobile service plan means a plan
under which calls made using a mobile carriage service are paid for prior to
the service being used.
priority assistance means those services
supplied to priority customers under the priority assistance policy implemented
under clause 19.
priority customer means a customer who
satisfies the eligibility criteria developed under the objectives in Schedule
4.
public number means a number specified in the
numbering plan as mentioned in subsection 455 (3) of the Act.
public payphone means a payphone:
(a) in a public place that is a place where the
public usually has access, or usually has access except for particular hours of
the day or particular days of the week; or
(b) in a prison, correctional centre, detention
centre or similar facility.
PWC Report means the report by
PricewaterhouseCoopers to the licensee dated March 2002, on improvements
required to the provision of priority service based on an examination of the
facts surrounding the maintenance and supply of service to Ms Rose Boulding.
STS means the standard telephone service
supplied by the licensee in fulfilment of its universal service obligation
under Part 2 of the Consumer Protection Act.
telephone handset includes other customer
equipment that is supplied instead of a telephone handset to comply with the Disability
Discrimination Act 1992.
the Act means the Telecommunications
Act 1997.
the relevant parties means the Minister,
Optus Mobile Pty Ltd (ACN 054 365 696) and Vodafone Network Pty Ltd (ACN 056
161 043).
unlisted number means a public number
that is 1 of the following kinds:
(a) a mobile number, unless the customer and the
carriage service provider that provides the mobile service to the customer
agree that the number will be listed;
(b) a geographic number that the customer and the
carriage service provider that provides services for originating or terminating
carriage services to the customer agree will not be included in the directory;
(c) the number of a public payphone;
(d) a number that when dialled, gives access to a
private telephone exchange extension that the customer has requested not be
included in the directory.
USO policy statement means the licensee’s
standard policy statement under section 12K of the Consumer Protection Act as
approved by the ACA on 30 October 2001.
USO standard marketing plan means the
licensee’s standard marketing plan under section 12L of the Consumer Protection
Act as approved by the ACA on 30 October 2001.
working day, in a location, means a day that
is not a Saturday, Sunday or public holiday in the location.
4 Application
This Declaration applies if a carrier
licence is granted to Telstra Corporation Limited in the period starting on 30
June 1997 and ending at the end of 1 July 1997.
5 Industry
development plan
The licensee must:
(a) within 90 days after a carrier licence is
granted to the licensee:
(i) give a current industry
development plan to the Industry Minister; and
(ii) obtain the Industry Minister’s
approval of the plan; and
(b) comply with clauses 8, 9, 10, 11, 12, 13 and
14 of Schedule 1 to the Act as if the plan was an industry development plan
under Part 2 of Schedule 1 to the Act.
6 Compliance
The licensee must comply with its obligations under
clauses 7, 8, 9 and 10 to the extent made possible by the information provided
by carriage service providers under clause 10 of Schedule 2 to the Act.
7 Operator
services
The licensee must make operator services available
to the end‑users of standard telephone services supplied by the licensee.
8 Directory
assistance services
The licensee must make directory assistance
services available to the end‑users of standard telephone services
supplied by the licensee.
9 Alphabetical
public number directory
(1) The licensee
must produce an alphabetical public number directory:
(a) annually; and
(b) on substantially the same basis as the
licensee produced and distributed a directory in 1997; and
(c) in volumes by geographic area; and
(d) subject to subclause (7) — that includes
all customers of carriage service providers supplied with a standard telephone
service, regardless of who supplies them with that service.
(2) The licensee must arrange to publish and distribute
the directory to its own customers and the customers of other carriage service
providers (or the nominees of the customers).
(3) The licensee must not charge a customer of a
carriage service provider for 1 standard entry.
(4) A standard entry must include:
(a) a name and address; and
(b) 1 public number that is:
(i) if requested by the
customer — the customer’s mobile phone number; or
(ii) the customer’s geographic number.
Note The ACA may give written directions
to the licensee under section 581 of the Act about complying with this
subclause (eg promotion of a customer’s choice, if the customer receives
multiple services, in the identification of the entry that is to be treated as
a standard entry).
(5) The licensee must include in the directory a
customer’s facsimile number if asked by the customer.
(6) The licensee must provide entries in the directory,
and services for not including details of a customer in the directory, for a
customer of another carriage service provider on conditions that are no less
favourable than for a customer of the licensee.
(7) The licensee must ensure, to the greatest extent
practicable, that the directory does not include details of a customer whose
number is an unlisted number.
(8) The licensee must ensure, to the greatest extent
practicable, that it does not promote the licensee’s carriage services or other
goods and services unrelated to the directory entry during any contact it has
with a customer of another carriage service provider for purposes related to
the provision of services in a directory.
(9) The directory must be
provided without charge to a customer:
(a) as a book; or
(b) if the
customer agrees — in another form.
Note It is intended to make sure the
licensee maintains an updated version of the current White Pages directory and
makes it available to its own customers and the customers of other carriage
service providers (or the nominees of the customers) on substantially the same basis
as the White Pages have been produced and distributed before the licence came
into force.
10 Integrated
public number database
(1) The licensee must
establish and maintain an industry‑wide integrated public number database
to provide information for purposes connected with the following activities:
(a) providing directory assistance services;
(b) providing operator services or operator
assistance services;
(c) publishing public number directories;
(d) providing location dependent carriage services;
(e) the operation of emergency call services or
assisting emergency services under Part 12 of the Act;
(f) assisting enforcement agencies or
safeguarding national security under Part 14 of the Act;
(g) any other activities specified by the ACA by
written notice to the licensee.
Note A public number directory includes
classified business directories like the Yellow Pages and specialist trade
directories.
(2) The licensee must
comply with subclause (1) before:
(a) 1 July 1998; or
(b) if an earlier date is specified by the ACA in
the Gazette — that date.
(3) The licensee may use the database, and any
information derived from it, only for the purposes mentioned in subclause (1).
Note The ACA may give written directions
to the licensee under section 581 of the Act about complying with this
subclause (eg how it will control transfer of information to and from the
database and restrictions it will place on access by its employees).
(4) The database must
include, for each public number of a customer of each carriage service
provider:
(a) the public number; and
(b) the name of the customer; and
(c) the address of the customer; and
(d) the service location, if practicable; and
(e) the name of
the carriage service provider that provides:
(i) services for originating or
terminating carriage services to the customer; or
(ii) public mobile telecommunications
services to the customer; and
(f) whether the telephone is to be used for
government, business, charitable or private purposes, if practicable; and
(g) any other information required by the ACA by
written notice to the licensee.
(5) The database must show if a telephone number is an
unlisted number.
(6) The database must include, for each payphone, its
public number and location.
(7) If a carriage service
provider asks for access to information from the database, the licensee must
give access only for the purpose of helping the provider:
(a) to provide its own directory assistance
services; or
(b) to provide its own operator services or
operator assistance services; or
(c) to produce a public number directory; or
(d) to provide its own location dependent
carriage services; or
(e) to provide information for the operation of
emergency call services or assisting emergency services under Part 12 of the
Act; or
(f) to provide information for assisting
enforcement agencies or safeguarding national security under Part 14 of the
Act; or
(g) to provide services connected with the
matters mentioned in paragraphs (a), (b), (c) and (d); or
(h) to undertake any other activities specified
by the ACA by written notice to the licensee.
(8) The licensee must
give information from the database, about its own customers and customers of
other carriage service providers, that is required under subsection 313 (3)
or (4) of the Act.
Note Section 314 of the Act deals with
conditions that apply when information is given.
(9) Access under
subclause (7) is subject to:
(a) conditions:
(i) agreed between the parties; or
(ii) if the parties do not agree —
determined by an arbitrator appointed by the parties; or
(iii) if the parties do not agree on
the appointment of an arbitrator — determined by the ACCC; and
(b) Part 13 of the Act.
(10) For a
determination of price or price‑related conditions under subparagraph
(9) (a) (ii) or (iii), an arbitrator or the ACCC must consider only:
(a) the direct costs (including labour and
direct administration costs) incurred by the licensee in complying with
subclause (7); and
(b) a reasonable contribution to a normal return
on the capital expended in establishing and maintaining the integrated public
number database.
(11) A request under
subclause (7) may be:
(a) a single request; or
(b) part of a continuing arrangement between the
licensee and the provider.
(12) A request under
subclause (8) may be:
(a) a single request; or
(b) part of a continuing arrangement between the
licensee and the officer or authority that makes the request.
11 Differential
charging conditions
(1) If the
licensee supplies a rental telephone handset with a standard telephone service,
the licensee must differentiate between:
(a) its charge for initial supply of the
telephone handset; and
(b) its charge for a connection of the telephone
handset at the customer’s premises; and
(c) its charge for connecting the standard
telephone service; and
(d) its annual
charge for supplying the telephone handset; and
(e) its annual service charge for supplying the
standard telephone service.
12 Digital data capability
The licensee must be in a position to make
available, within 90 days of a request, a carriage service that provides a
digital data capability broadly comparable to that provided by a data channel
with a data transmission speed of 64 kilobits per second supplied to end‑users
as part of the designated basic rate ISDN service:
(a) by 1 July 1997 — to at least 93.4% of
the Australian population; and
(b) by 31 December 1998 — to at least 96% of
the Australian population.
13 Local
number portability
(1) Subject to this clause, the licensee
must ensure, at its own cost, that its telecommunications network is capable of
providing local number portability.
(2) Subject to this clause, the licensee must:
(a) if so requested by Optus; and
(b) as soon as practicable after Optus’s request
is received;
provide local number portability in relation to portable local
service numbers specified by Optus in its request.
(3) The licensee is not required to comply with
subclause (2) unless Optus agrees:
(a) to pay the licensee for customer transfer
costs on terms and conditions:
(i) agreed between the licensee and
Optus by 1 April 1998; or
(ii) failing agreement, determined by
the ACCC by 1 May 1998; and
(b) to contribute to the licensee’s call
conveyancing costs at the level of one cent per call.
(4) Subject to subclauses
(5) and (9), the licensee must comply with:
(a) subclause (1) by 1 May 1998 and at all times
on and after 1 May 1998; and
(b) subclause (2) at all times on and after 1 May
1998.
(5) The ACA may, by instrument in writing:
(a) determine that it is unreasonable to expect
the licensee to comply with subclauses (1) and (2) by the date and times
referred to in subclause (4); and
(b) specify a later compliance date and later
compliance times for subclause (4).
(6) If the ACA makes a determination under subclause
(5), the licensee must comply with subclauses (1) and (2) on such date and
times as are specified in the determination.
(7) In determining whether it is unreasonable to
expect the licensee to comply with subclauses (1) and (2) by the date and times
referred to in subclause (4), the ACA must have regard to whether the
licensee’s inability to comply is directly or substantially attributable to:
(a) Optus’s level of co‑operation in the
development and implementation of arrangements necessary to provide for local
number portability; or
(b) significant events of a technical or
engineering nature that the licensee could not have reasonably anticipated.
(8) Subclause (7) is intended to limit the
matters to which the ACA may have regard for subclause (5).
(9) The ACA may, by instrument in writing, determine
that it is unreasonable to expect the licensee to comply with subclauses (1)
and (2) in certain areas currently served by exchanges where, in its opinion,
providing local number portability is not technically feasible.
(10) A determination under subclause (9) may be
unconditional or subject to such conditions (if any) as are specified in the
determination.
(11) For subclause (9), in determining whether it is
unreasonable to expect the licensee to comply with subclauses (1) and (2), the
ACA may only have regard to whether the licensee’s inability to comply is
directly attributable to the technical feasibility of providing local number
portability from a particular exchange.
14 Cessation
of clause 13
If the numbering plan in force from time to time
requires the licensee to provide number portability or limited portability
(within the meaning of that plan) in relation to portable local service
numbers, clause 13 will cease to have effect at the earlier of the time when:
(a) the licensee and Optus agree, in accordance
with section 462 of the Act, on the terms and conditions on which the licensee
will provide number portability or limited portability in relation to portable
local service numbers; or
(b) these terms and conditions are determined
under section 462 of the Act by:
(i) an arbitrator appointed by the
licensee and Optus; or
(ii) the ACCC.
15 Replacement
of CDMA network
(1) The licensee must continue to maintain the operation
of its entire CDMA network until the Minister notifies the licensee that the
Minister is satisfied that:
(a) the
Alternative Network provides coverage equivalent to or better than the coverage
provided by the licensee’s CDMA network that was in place as at 1 June 2007;
and
(b) the
Alternative Network provides retail services equivalent to or better than those
provided on or in connection with the licensee’s CDMA network as at 1 June
2007.
(2) Subclause (1) does not apply:
(a) where, on or after 15 October 2007, the
licensee gives the Minister written notification that, in the opinion of the
licensee, the Alternative Network meets the standards mentioned in paragraphs
(1) (a) and (b); and
(b) within whichever is the earlier of:
(i) 14 weeks of the date on which a
request is received under paragraph (2) (a);or
(ii) 3 weeks of the date on which the
Minister receives a report from ACMA on whether the Alternative Network meets
the standards referred to in paragraph (1) (a),
the Minister has not:
(iii) notified the licensee that the
Minister has determined that the Minister is satisfied of the matters mentioned
in paragraphs (1) (a) and (b); or
(iv) notified the licensee that the
Minister has determined that the Minister is not satisfied of the matters
mentioned in paragraphs (1) (a) and (b) and the reasons for this determination,
including but not limited to, any specific or systemic problems which have been
identified and which would need to be rectified by the licensee in order for
the Minister to be satisfied of the matters mentioned in paragraphs (1) (a) and
(b).
(3) Subclause (1) does not apply:
(a) where the licensee receives a notification
referred to in subparagraph (2) (b) (iv) or subparagraph (3) (b) (ii), and
makes a further request to the Minister to determine whether the Minister is
satisfied of the matters mentioned in paragraphs (1) (a) and (b); and
(b) as soon as practicable after receiving a
request under paragraph (3) (a), the Minister has not:
(i) notified the licensee that the
Minister has determined that the licensee has rectified all of the problems
described in a notice referred to in paragraph (2) (b) (iv) and that the
Minister is satisfied of the matters mentioned in paragraphs (1) (a) and (b);
or
(ii) notified the licensee that the
Minister has determined that the licensee has not rectified all of the problems
described in a notice referred to in subparagraph (2) (b) (ii) and that the
Minister is not satisfied of the matters mentioned in paragraphs (1) (a) and
(b) and the reasons for this determination, including but not limited to, any
rectification action that would still need to be taken by the licensee in order
for the Minister to be satisfied of the matters mentioned in paragraphs (1) (a)
and (b).
(4) If the Minister notifies the licensee that the
Minister is satisfied of the matters mentioned in paragraphs (1) (a) and (b)
and the licensee ceases to maintain the operation of the whole or part of its
CDMA network, the licensee must ensure that it operates in non-metropolitan
areas one or more terrestrial digital mobile telecommunications networks which
provide coverage in non-metropolitan areas that is equivalent to or better than
that of its CDMA network that was in place as at 1 June 2007.
(5) The licensee is not required to comply with
an obligation under subclause (1) or (4) in relation to a particular CDMA site
if the licensee is unable to comply with that obligation in relation to that
site because of circumstances beyond its reasonable control.
(6) The licensee is not required to comply with
subclause (4) in relation to a particular non-metropolitan area in which
another carrier or carriage service provider operates a terrestrial digital
mobile telecommunications network that ACMA has certified in writing provides,
within the meaning of subclause (4), equivalent coverage provided by a
non-metropolitan CDMA site.
(7) For the purposes of this clause:
(a) the existence of equivalent or better
coverage is to be determined having regard to:
(i) the area that a signal emitted from
a base station covers as it is propagated around the base station; and
(ii) the extent to which a signal
emitted from a base station is of sufficient strength to enable the connection
and maintenance of voice calls using only an appropriate handheld mobile phone
handset; and
(iii) the extent to which a signal
emitted from a base station is of sufficient strength to enable the connection
and maintenance of voice calls using an appropriate mobile phone used in
connection with an external aerial; and
(b) the existence of equivalent or better
services is to be determined having regard to:
(i) the range of functions the
services are capable of performing, including but not limited to, the functions
of EVDO services and CDMA-based telemetry services; and
(ii) the availability of the services
and necessary customer equipment, including handsets, to retail customers; and
(iii) the availability of pre-paid
mobile service plans and post-paid mobile service plans; and
(iv) any other relevant services.
17 Provision
of information to CUSPs and aspirant CUSPs
(1) In this clause:
aspirant CUSP means a person that:
(a) is considering applying to the ACA under
section 13A of the Consumer Protection Act for approval as a competing
universal service provider for a contestable area; and
(b) has completed, signed and provided to the
licensee and the ACA a deed poll of a kind specified in Schedule 3.
Consumer Protection Act means the Telecommunications
(Consumer Protection and Service Standards) Act 1999.
contestable area means an area determined
under section 9G of the Consumer Protection Act as a universal service area in
which a service obligation referred to in section 9 of that Act has been made
contestable under section 11C of that Act.
CUSP means competing universal service
provider.
disallowable instrument means an instrument
that is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
(2) Subject to this clause, the licensee must
provide a CUSP or an aspirant CUSP, on request, with the following information
for a contestable area which the CUSP or aspirant CUSP has specified in its
deed poll:
(a) such information specified in Schedule 2 as
is specifically requested by the CUSP or aspirant CUSP in the format specified in
that Schedule relating to the specified contestable area; and
(b) any other information requested by the CUSP
or aspirant CUSP relating to the contestable universal service area specified
in the deed poll that:
(i) is in the possession or control of
the licensee by virtue of the licensee being or having been since 1 July
2000 a universal service provider in the area comprising all or part of the
specified contestable area; and
(ii) in the case of an aspirant CUSP,
would assist the aspirant CUSP to decide whether to enter the identified
universal service contestable area as a CUSP; and
(iii) in the case of a CUSP or aspirant
CUSP, inform the CUSP or aspirant CUSP about operating as a CUSP in that area.
Note Under subclause (5) a request under
paragraph (2) (b) must be reasonable.
(3) The licensee is not required to provide the
information referred to in subclause (2) to a CUSP or an aspirant CUSP unless
the CUSP or aspirant CUSP provides the licensee and the ACA with a completed
and signed copy of:
(a) any deed poll that is determined by the ACA
by disallowable instrument from time to time; or
(b) if no deed poll is determined by the ACA
under paragraph (a), the deed poll in Schedule 3.
(4) The licensee
must provide the CUSP or aspirant CUSP with the information referred to in
paragraph (2) (a) free of charge and:
(a) within 28 days after the licensee receives
the request for the information; or
(b) if the information is of a kind that the
licensee has previously prepared to provide to another CUSP or aspirant CUSP,
within 5 days after the licensee receives the request for the information; or
(c) within such longer period as is agreed in
writing between the licensee and the CUSP or aspirant CUSP.
Note For the purposes on this subclause,
under subclause (9) the licensee must keep a register of information prepared
and provided to CUSPs and aspirant CUSPs pursuant to clause 17 and provide to
the ACA a copy of such information as is provided.
(5) Providing the requirements of subclause (3) are met and
the request under paragraph (2) (b) is reasonable, the licensee must comply
with the request.
Note In the event that the licensee
disputed the reasonableness of a request, the reasonableness of the request
would be a matter determined by the ACA under its functions under section 6 of
the Australian Communications Authority Act 1997 of:
(a) regulating telecommunications in accordance with the Telecommunications
Act 1997 and the Telecommunications (Consumer Protection and Service
Standards) Act 1999; and
(b) advising and assisting the telecommunications industry.
(6) Where the licensee provides information under
paragraph (2) (a), the licensee may:
(a) require the information to be returned to it
after 180 days of its receipt by the CUSP or aspirant CUSP; or
(b) provide for its automatic deactivation after
180 days of its receipt by the CUSP or aspirant CUSP;
unless:
(c) otherwise agreed in writing between the
licensee and the CUSP or aspirant CUSP; or
(d) in the case of an aspirant CUSP, before the
expiry of the 180 days the aspirant CUSP lodges an application to become a
CUSP, in which case the aspirant CUSP may keep the information relevant to the
universal service area for which it has sought approval as a CUSP until the ACA
approves or refuses to approve the person as a CUSP; or
(e) in the case of an CUSP, the ACA approves the
person as a CUSP, in which case the CUSP may keep information relevant to the
universal service area for which it has received approval until it ceases to be
a CUSP.
(7) The licensee is not exempt from providing the same
information to a CUSP or an aspirant CUSP even though the licensee may have
provided it to the CUSP or aspirant CUSP previously and the information has
been subsequently returned or deactivated.
(8) The licensee must provide the CUSP or
aspirant CUSP with the information referred to in paragraph (2) (b) relating to
the contestable universal service area specified in the deed poll on such terms
and conditions as are:
(a) agreed between the licensee and the CUSP or
aspirant CUSP; or
(b) failing agreement, determined by a mediator
agreed by both parties; or
(c) failing agreement on a mediator, by the ACA
or by a mediator determined by the ACA.
(9) The licensee must:
(a) maintain a register of information provided
to CUSPs and aspirant CUSPs under this clause;
(b) advise the ACA of information it provides to
CUSPs and aspirant CUSPs; and
(c) provide a copy of information provided to
CUSPs or aspirant CUSPs to the ACA for the confidential use of the ACA, the
Minister for Communications, Information Technology and the Arts and the
Department of Communications, Information Technology and the Arts.
18 Obligations
in relation to the Extended Zones
(1) In this clause:
Always‑on Service has the same meaning
as in the Agreement.
Agreement means the agreement entitled ‘Agreement
for the provision of untimed local calls, untimed Internet access and other
carrier services to Extended Zones’ dated 1 June 2001 between the
Commonwealth and the licensee, as amended from time to time.
BPS Service has the same meaning as in the
Agreement.
cessation time means the earlier of:
(a) the date of termination of the Agreement,
not being a termination for convenience in circumstances where $150 million
has been paid to the licensee under the terms of the Agreement; and
(b) the end of 31 May 2011.
Extended Zone has the same meaning as in the
Agreement.
Phase 2 of the Network Upgrade has the same
meaning as in the Agreement.
(2) Beginning on a date in accordance with the indicative
timetable for delivery specified in section 5.3 of Schedule 1 to the Agreement
the licensee must:
(a) continue to make available to Extended Zone
customers an always‑on Internet service in accordance with section 5.1 of
Schedule 1 to the Agreement; and
(b) achieve the service levels for the Always‑on
Service specified in section 5.2 of Schedule 1 to the Agreement.
(3) Beginning on the earlier of:
(a) 15 April 2003; and
(b) the date of completion of Phase 2 of the
Network Upgrade under section D of Schedule 1 to the Agreement,
the licensee must provide new service connections in the Extended
Zones in accordance with section 6.1 (a) (i) of Schedule 1 to the Agreement.
(4) The licensee must continue to support and resource
or, where applicable, provide the customer support services referred to in
sections 7.1 (a) and 7.1 (c) (vi) of Schedule 1 to the Agreement.
(5) Beginning on 31 December 2002 the licensee must make
available the customer support services referred to in sections 7.1 (b) and 7.1
(c) (i) to (v) of Schedule 1 to the Agreement.
(6) Beginning on the date of completion of Phase
2 of the Network Upgrade in an Extended Zone customer’s area under section D of
Schedule 1 to the Agreement, the licensee must provide to customers in that
area the faster dial‑up data access speeds services referred to in
section 9.1 of Schedule 1 to the Agreement in accordance with the timeframe and
conditions referred to in that section.
(7) Once the licensee has made the BPS available to
customers in an Extended Zone in accordance with section 5.3 of Schedule 1 to
the Agreement, the licensee must, subject to the necessary software being
available, offer to those customers in that Extended Zone who subscribe to the
BPS Service the content development and education services referred to in
sections 10.1 (a) and (c) of that Schedule.
(8) Beginning on 1 July 2002 the licensee must make
available to Extended Zone customers who subscribe to the BPS Service the video
conferencing services referred to in section 11.1 of Schedule 1 to the
Agreement.
(9) The licensee must provide reports in accordance with
clause 14 and Schedule 6 to the Agreement.
(10) The licensee must include the information specified
in clause 14.2 (a) (2) of the Agreement in:
(a) the Telstra Public Switched Telephone
Service (PSTS) Section of the document known as the Telstra Standard Form of
Agreement as in force or existing from time to time; or
(b) individual agreements with customers in the
Extended Zones.
(11) Once the licensee has completed Phase 2 of the
Network Upgrade in an Extended Zone in accordance with section D of Schedule 1
to the Agreement the licensee must, in that Extended Zone, achieve the service
levels referred to in section 17.3 (b) (iii) of that Schedule.
(12) The obligations in relation to the Extended
Zones provided for in this clause end at the cessation time.
(13) The obligations of the licensee provided for in this
clause are subject to:
(a) clause 7 of the Agreement; and
(b) any amendments to those obligations agreed
between the Commonwealth and the licensee.
19 Priority
assistance arrangements
(1) In this clause, clause 21 and Schedule 4, and the
definitions of alternative service, interim priority
service, and priority customer in clause 3:
customer means:
(a) a customer
of the licensee; or
(b) a person
who requests, or has requested, the connection of a STS from the licensee, and
to whom the licensee has an obligation to provide a STS or is willing to
provide a STS;
but does not include a carrier or a carriage service provider.
(2) Subject to this clause, the licensee must implement
arrangements for maximising service continuity to priority customers. As part
of these arrangements the licensee must:
(a) develop,
implement and maintain a documented priority assistance policy; and
(b) develop,
implement and maintain processes, systems and practices to ensure that priority
customers can be identified and provided with priority assistance in accordance
with the licensee’s priority assistance policy.
(3) In developing a priority assistance policy for
priority customers under subclause (2) the licensee must:
(a) consult with the Department of
Communications, Information Technology and the Arts and ACMA; and
(b) ensure that the priority assistance policy
adequately addresses all of the objectives set out in Schedule 4; and
(c) review the licensee’s other relevant
policies and systems including its Community, Essential and Emergency Service
Policy, to ensure that they are consistent with the priority assistance policy.
Note The licensee’s Community, Essential
and Emergency Service Policy is a draft internal Telstra document, Policy 008
737, January 2002.
(4) The licensee must receive approval from the Minister
of its priority assistance policy before it will be taken to have complied with
the obligation in paragraph (2) (a), but may implement its policy prior to
approval being received. The Minister may, by written notice:
(a) require the licensee to make changes to that
policy prior to giving his approval; or
(b) require the licensee to make changes to the
timeframes for implementing that policy.
(5) If a priority assistance policy of the licensee has
been approved by the Minister the policy may be varied from time to time by:
(a) the licensee providing the Minister
with a draft variation to the policy and the Minister or his delegate approving
that variation; or
(b) the Minister giving the licensee a written
notice requiring the licensee within a specified period and in specified terms
to provide the Minister with a draft variation to the policy and the Minister
or his delegate approving that variation.
Note It is intended that variations of a
substantial policy nature require the approval of the Minister. Corrections of
a minor administrative or typographical nature can be made by the licensee
without approval of the Minister but should be recorded and notified to ACMA.
(6) The licensee must comply with a written notice that
is given to it under paragraph (4) (a), (4) (b) or (5) (b).
(7) After receiving approval for all parts of the
priority assistance policy from the Minister, the licensee must:
(a) provide a draft variation of its USO policy
statement and USO standard marketing plan to ACMA for approval as the
licensee’s approved USO policy statement and approved USO standard marketing
plan under section 12W of the Consumer Protection Act; and
(b) ensure that each of the draft variations
under paragraph (a) includes a brief statement accurately summarising the
licensee’s obligations under the final priority assistance policy and
describing any relationship between the priority assistance policy and other
elements of the USO standard marketing plan and that the USO standard marketing
plan includes as an appendix a copy of the final priority assistance policy;
and
(c) ensure the draft variation under paragraph
(a) is provided to ACMA as soon as practicable.
(8) The licensee must, in conjunction with ACMA, develop
a record keeping and reporting regime in relation to priority service
arrangements and provide information to ACMA on a quarterly basis, or such
other times as notified to the licensee by ACMA, including:
(a) the number of applications for registration
as priority customers received; and
(b) the proportion of applications accepted; and
(c) the number of customers levied a cost
recovery charge after failing to meet the eligibility criteria; and
(d) the number of requests for priority
assistance connections in urban, rural and remote areas; and
(e) the proportion of requests for priority
assistance connections in urban, rural and remote areas meeting the priority
assistance policy service connection fulfilment objectives; and
(f) the number of requests for priority
assistance service restoration in urban, rural and remote areas; and
(g) the proportion of requests for priority
assistance service restorations in urban, rural and remote areas meeting the
priority assistance policy service restoration objectives; and
(h) the proportion of requests for priority
assistance satisfied with interim or alternative services (connections and
restorations); and
(i) the number of priority customers
experiencing 2 or more faults in a 3 month period during which they were a
priority customer; and
(j) details of requests for priority assistance
in relation to which the licensee has been unable to meet the timeframes
specified in:
(i) subparagraph (a) (i) or (a) (ii)
of item (13) of Schedule 4;
(ii) subparagraph (b) (i) or (b) (ii)
of item (13) of Schedule 4;
(iii) subparagraph
(a) (i) or (a) (ii) of item (14) of Schedule 4;
(iv) subparagraph
(b) (i) or (b) (ii) of item (14) of Schedule 4;
including an explanation of the circumstances (including location,
time and duration) that have prevented the timeframes being met.
(9) In the period before the licensee has implemented
its priority assistance policy fully, the licensee must put in place interim
arrangements reasonably expected to maximise service continuity to known
priority customers.
21 Exemptions
from the Customer Service Guarantee
(1) In this clause:
CSG Standard means the Telecommunications
(Customer Service Guarantee) Standard 2000 (No. 2) made under sections 115,
117, 120 and 125 (3) (a) of the Consumer Protection Act.
(2) The licensee may not rely on an
exemption under subsection 22 (1) of the CSG Standard from complying with a
performance standard under Part 2 of the CSG Standard with which a carriage
service provider must comply unless:
(a) in the case where notice of the exemption is
issued under section 23 of the CSG Standard, the notification described under
subsection 23 (2) of the CSG Standard is posted to each customer to whom the
exemption relates in the shortest possible time, but in any event no later than
4 working days after the day on which the exemption takes effect; or
(b) in the case where notice of the exemption is
issued under section 24 of the CSG Standard:
(i) the notification referred to in
paragraph 24 (1) (a) of the CSG Standard is published in the shortest possible
time, but in any event the request for the notice to be published must be sent
to a relevant newspaper publisher no later than 4 working days after the day on
which the exemption takes effect; and
(ii) the notification described under
paragraphs 24 (1) (b) and (c) of the CSG Standard is provided and published,
respectively, in the shortest possible time, but in any event no later than 3
working days after the day on which the exemption takes effect.
(3) Where the licensee proposes to
rely on an exemption under subsection 22 (1) of the CSG Standard from
complying with a performance standard under Part 2 of the CSG Standard with
which a carriage service provider must comply, the licensee must ensure that:
(a) any information provided to the ACA, the
Telecommunications Industry Ombudsman and affected customers in relation to an
outage, includes a precise description of the number ranges and geographic area
affected and the reason for the outage; and
(b) any affected priority customers which contact
the licensee are advised of any exemptions in place which apply to their phone
service on contacting the licensee; and
(c) the exemption
under subsection 22 (1) of the CSG Standard is only issued for areas that are
affected by the cause of the outages or affected by the need to move staff or
equipment from another associated area to attend the outage.
Note Unless otherwise specified, this
clause applies to the use of exemptions from the CSG Standard for all customers
of the licensee and is not limited to priority customers.
22 Low‑income
measures
(1) By 1 July 2002, the licensee must offer, or
have a plan for offering, products and arrangements to low‑income
customers (the low‑income package) that has
been:
(a) endorsed by low‑income consumer
advocacy groups; and
(b) notified in writing to the ACA.
(2) The low‑income package must include
details of the dates by which products or arrangements not offered to low‑income
customers from 1 July 2002 will be offered to such customers.
(3) The licensee must comply with the low‑income
package as in force or existing from time to time.
(4) The licensee must maintain and adequately
resource a Low‑income Measures Assessment Committee (LIMAC),
comprising representatives of such organisations as are approved by the
Minister in writing from time to time.
(5) The role of
LIMAC will be:
(a) to assess proposed changes to the low‑income
package or to the marketing plan for the low‑income package; and
(b) to report annually to the Minister on the
effectiveness of the low‑income package and of its marketing by the
licensee.
(6) From 1 July 2002, the licensee must have in
place a marketing plan for making low‑income consumers aware of the low‑income
package, being a plan that has been approved by LIMAC.
(7) The licensee must seek and consider the views
of LIMAC before it makes any significant change to the low‑income
package.
Note It is intended that the licensee may
make minor non‑substantive changes to the low‑income package (such
as minor editorial or typographical corrections) without having to seek and
consider the views of LIMAC. LIMAC is to be consulted on other proposed
changes to the low‑income package.
(8) If the licensee makes a significant change to
the low‑income package, the licensee must give the ACA a revised version
of the package incorporating the change.
23 Obligations
in relation to the provision of mobile phone services to towns with populations
over 500
(1) In this
clause:
Actual Acceptance Date has the same meaning
as in the Agreement.
Agreement means the Deed of Agreement dated 3
April 2002, as amended from time to time, between the Commonwealth and the
licensee in relation to the provision of funding for mobile phone coverage in
Designated Towns with populations over 500.
Coverage has the same meaning as in the
Agreement.
Designated Town has the same meaning as in
the Agreement.
Operational Coverage Map has the same meaning
as in the Agreement.
Roaming has the same meaning as in the
Agreement.
Services has the same meaning as in the
Agreement.
(2) In this clause, a reference to the date on
which the Services come into operation is a reference to the date on which the
acceptance of the Services is completed as specified in item 2.11 of Schedule 1
of the Agreement.
(3) On or after the date on which the Services
come into operation in each Designated Town, the licensee must:
(a) provide mobile telephone services to each
Designated Town; and
(b) ensure that the area of Coverage in public
coverage maps issued by the licensee after the provision of the Operational
Coverage Maps is at least equal to the coverage shown in the Operational
Coverage Maps; and
(c) provide Coverage in accordance with Schedule
1 of the Agreement and the area shown in the Operational Coverage Maps; and
(d) provide for complaints handling and reports
on complaints handling as provided for in Item 2.12 of Schedule 1 of the
Agreement and Item 1.1 (c) (iv) of Schedule 7 of the Agreement.
(4) On or after the Actual Acceptance Date, the
licensee must, in relation to each Designated Town:
(a) make offers of Roaming (where applicable) as
provided for in Item 2.8 of Schedule 1 of the Agreement; and
(b) maintain and upgrade service levels to the
same standard that is generally available to the rest of the licensee’s
network; and
(c) provide comparable pricing and features to
those generally available to the rest of the licensee’s network; and
(d) provide continued opportunities for
Australian and New Zealand suppliers under the conditions that apply to the
Agreement; and
(e) provide the reports specified in Item 4 of
Schedule 7 of the Agreement.
(5) Paragraph (3) (a) will continue, subject to
applicable legislation:
(a) for a period of 5 years; and
(b) for a further
period of 5 years unless the Commonwealth agrees (with the Commonwealth not to
unreasonably withhold its consent) that external technological and/or
regulatory changes make it commercially impracticable or unviable for the
licensee to provide the Services in a Designated Town or which otherwise
require the licensee to review the method by which mobile telephone coverage is
provided in the Designated Town.
(6) Paragraphs (3) (b), (3) (c), (3) (d) and
subclause (4) will continue until the date that is 5 years from the Actual
Acceptance Date.
(7) The
obligations of the licensee under this clause are subject to:
(a) clause 7 of the Agreement; and
(b) any amendments to those obligations agreed
between the Commonwealth and the licensee.
24 Network
reliability framework — definitions and general requirements
(1) In this clause and in clauses 25, 26 and 27:
ACA’s Report on USO Service Reliability means
the report of the ACA entitled ACA monitoring and reporting framework for
USO service reliability that was released publicly on 16 July 2002.
average network event volume, in relation to
a cable run, means a figure representing the average number of network events,
calculated from the total number of network events on that cable run over a
continuous six calendar month period or such other period as is notified by
ACMA to the licensee.
boundary of the licensee’s telecommunications network
means the boundary for the purposes of section 22 of the Act.
cable run means a set of facilities that:
(a) is logically located between a particular
exchange and the boundary of the licensee’s telecommunications network; and
(b) includes at least one set of 10 or 100 (as
the case may be) copper wire pairs within a physical cable sheath.
CSG service has the same meaning as in the Telecommunications
(Customer Service Guarantee) Standard 2000 (No. 2) when provided to a
customer of the licensee but does not include a service the supply of which by
the licensee is exempt from compliance with performance standards under section
19 of that Standard.
customer means a customer of the licensee but
does not include a carrier or a carriage service provider.
ESA means a Telstra Exchange Service Area
specified in Attachment 7A to the Telstra Public Switched Telephone Service
(PSTS) Section of the document known as the Telstra Standard Form of
Agreement as in force or existing from time to time.
ESA category means a category of ESA referred
to in Table 1 of subclause 26 (1).
fault or service difficulty, in relation to a
CSG service, has the same meaning as in the Telecommunications (Customer
Service Guarantee) Standard 2000 (No. 2).
FSA means:
(a) an area that the licensee
treated as a Field Service Area as at 21 November 2002; or
(b) another area as agreed in writing
between the licensee and ACMA from time to time.
geographical locator, in relation to:
(a) a CSG service, means the location of the
service in the licensee’s database sufficient to direct service staff of the
licensee to the location of the service; and
(b) an ESA, means the ESA‑code.
network event means a fault or service
difficulty in a cable run in relation to a standard telephone service supplied
to a customer of the licensee but does not include a fault or service
difficulty caused by:
(a) faulty customer equipment;
(b) third party damage to facilities of the
licensee;
(c) one or more fault or service difficulties
beyond the boundary of the licensee’s telecommunications network; or
(d) one or more fault or service difficulties
within switching or transmission systems.
quarter means a period of 3 months ending on
30 September, 31 December, 31 March or 30 June.
remediation means work done in relation to a
service over and above that normally undertaken to repair a fault or service
difficulty with a view to:
(a) addressing systematic problems with the
service (for example, the root cause or causes of recurrent problems) and
improving the overall reliability of the service; and
(b) eliminating one or more recurrent fault or
service difficulties.
(2) The licensee must provide any information or report
(however described) that is required to be provided to ACMA under any provision
in clause 25, 26 or 27 in the form approved by ACMA for the purposes of the
provision in question.
(3) For the purposes of subclause 26 (1), the
relative performance of cable runs is to be assessed by a method approved in
writing by ACMA.
25 Monitoring
and reporting at the Field Service Area (FSA) level
(1) The licensee must, within 10 working days of the end
of each calendar month, or such other timeframe as ACMA agrees in writing,
provide a report and supporting data to ACMA on:
(a) the percentage of CSG services in each FSA
and nationally without any fault or service difficulty for the preceding
calendar month; and
(b) the average availability of CSG services, as
a percentage of total possible available time, in each FSA and nationally for
the preceding calendar month.
(2) The supporting data must include the following data
for the preceding calendar month at a national level and for each FSA:
(a) total CSG services in operation;
(b) the number of CSG services that had one or
more fault or service difficulties;
(c) the number of CSG services that had one or
more fault or service difficulties, adjusted to be equivalent to a 31 day
month;
(d) the percentage of CSG services without a
fault or service difficulty;
(e) the percentage of time that CSG services are
available; and
(f) the total time taken to repair all CSG fault
or service difficulties.
(3) The licensee must:
(a) publish the report mentioned in subclause
(1) within 20 working days of the end of each calendar month or such other
timeframe as ACMA agrees in writing; and
(b) provide the report and supporting data
mentioned in subclauses (1) and (2) to ACMA for publication by ACMA if ACMA,
following consultation with the licensee, considers the report and supporting
data appropriate for publication.
26 Monitoring,
remediation and reporting at the Cable Run level
(1) Each calendar month, the licensee must:
(a) prepare a remediation list which:
(i) contains a minimum of 40 cable
runs selected using the method in Table 2 below; and
(ii) specifies the average network
event volume, unique identification details, the ESA code and the performance
ranking for each cable run; and
(b) give the list to ACMA within 15 working days
of the end of each calendar month.
|
Table 1
|
|
ESA category
|
A
|
B
|
C
|
D
|
|
Number of operational CSG services
|
0‑100
|
101‑1000
|
1001‑10 000
|
10 001 or more
|
|
Table 2
|
|
Step 1
|
Exclude from eligibility
for selection any cable runs that were included in a previous remediation
list, unless remediation undertaken in relation to that cable run under this
clause has resulted in a 90% reduction in the annual network event volume for
that cable run.
|
|
Step 2
|
Select at least the 5 worst
performing cable runs from ESA Category A.
|
|
Step 3
|
Select at least the 15 worst performing cable runs from
ESA Category B.
|
|
Step 4
|
Select at least the 10 worst performing cable runs from
ESA Category C.
|
|
Step 5
|
Select at least the 10 worst performing cable runs
(regardless of ESA Category) not already included under earlier steps.
|
(2) On receipt of a remediation list under
subclause (1), ACMA may:
(a) approve the list; or
(b) refuse to approve the list.
(3) If ACMA refuses to approve the remediation list,
ACMA must direct the licensee to give ACMA a fresh remediation list within 5
working days. ACMA’s direction must have regard to the requirements of
subclause (1).
(4) If ACMA decides to approve a remediation list, it
must notify the licensee of its decision and the licensee must, within 6
calendar months of receipt of the notification, or such longer period as ACMA
agrees in accordance with subclause (5), complete the remediation in relation
to each of the cable runs on the list.
(5) If so requested by the licensee, in writing, ACMA
may extend or further extend the period for the completion of remediation by a
further period of up to 6 calendar months if the licensee satisfies ACMA that:
(a) the licensee is unable to gain access to the
sites necessary to plan and implement the remediation for 4 of the 6 calendar
months available for the licensee to complete the remediation; or
(b) the operation of Commonwealth, State or
Territory law prevents the licensee from completing the remediation within the
6 calendar month period; or
(c) the licensee is unable to obtain materials
necessary for the remediation and ACMA has approved a written plan to provide
services to all affected customers.
(6) Any request by the licensee for an extension under
subclause (5) must be made to ACMA:
(a) if paragraph (5) (a) applies, or the
licensee reasonably expects that paragraph (5) (a) will apply — at
least 20 working days before the end of the current period allowed for
remediation; or
(b) if paragraph (5) (b) or (c)
applies — within 15 working days of the licensee becoming aware of the
operation of the law or the licensee’s inability to obtain necessary materials,
as the case may be.
(7) ACMA must give the licensee written notice of its
decision under subclause (5) within 15 working days of receipt of the
licensee’s written request under subclause (6).
(8) Within 10 working days of the end of each calendar
month ending after the end of six calendar months following the completion of
the remediation of one or more cable runs, the licensee must report in writing
to ACMA whether the licensee has achieved a 90 per cent reduction in the
average network event volume for each of the cable runs. The report must
include details of any reduction in the average network event volume for each
of the cable runs.
(9) If the licensee has not achieved a 90 per cent
reduction in the average network event volume for each of the cable runs, the
report under subclause (8) must be accompanied by either:
(a) a fresh written remediation plan specifying:
(i) what remediation the licensee has
undertaken in relation to each of the relevant cable runs;
(ii) the reasons why the previous
remediation failed;
(iii) a summary of the fault or service
difficulties occurring after the previous remediation; and
(iv) what further remediation the
licensee plans to take in relation to each of the relevant cable runs; or
(b) a written application to ACMA to waive the
requirement for a fresh remediation plan (a waiver application).
(10) If a waiver application is made, ACMA must notify the
licensee of its decision on the application within 15 working days after ACMA
receives the application.
(11) If ACMA approves a waiver application, then no
further remediation is required under this clause unless the cable run is
included in a future remediation list approved by ACMA under subclause (2).
(12) If ACMA does not approve a waiver application, then
the licensee must provide to ACMA a further fresh written remediation plan
satisfying the requirements of paragraph (9) (a) within 30 working days
after the licensee’s receipt of ACMA’s notice under subclause (10).
(13) Unless ACMA approves a waiver application, the
licensee must continue to undertake remediation action until there is, within
12 calendar months after receipt of the notification under subclause (10) or
ACMA’s receipt of a fresh remediation plan under paragraph (9) (a), a 90
per cent reduction in the average network event volume. This reduction cannot
be measured from earlier than the completion of the remediation referred to in
subclause (4).
(14) Within 20 working days of the end of each financial
year, the licensee must provide a written report to ACMA about remediation
conducted under this clause in that financial year which includes:
(a) a single figure for the total number of
services affected by either that remediation or by the remediation of other
cable runs referred to in paragraph (d);
(b) a summary of the types of network plant
remedied and the nature of the remediation work undertaken on those types of
plant;
(c) for each cable run identified for
remediation in a remediation list approved by ACMA under subclause (2), its
size (ie whether it included 10 or 100 copper pairs), the ESA category and the
number of services in operation supplied by that cable run; and
(d) details of other cable runs remedied in
conjunction with remediation under this clause.
27 Monitoring,
prevention, remediation and reporting at the CSG service level
(1) The licensee must take such reasonable
action as is necessary to prevent a CSG service from experiencing more than 3
fault or service difficulties in a rolling 60 calendar day period.
(2) The licensee must take such reasonable action
as is necessary to prevent a CSG service from experiencing more than 4 fault or
service difficulties in a rolling 365 calendar day period.
(3) In a case where a CSG service experiences
more than 3 fault or service difficulties in a rolling 60 calendar day period
or more than 4 fault or service difficulties in a rolling 365 calendar day
period, the licensee must investigate the performance of the CSG service and
undertake such remediation of the service as is necessary.
(4) In a case where one or more CSG services experience
more than 3 fault or service difficulties in a rolling 60 calendar day period
or more than 4 fault or service difficulties in a rolling 365 calendar day
period, the licensee must report the matter to ACMA within 10 working days of
the end of each calendar month in which a contravention has occurred, or such
other timeframe as ACMA agrees in writing, providing the following details:
(a) the telephone number, or such other unique
identifier as ACMA agrees in writing, of the CSG services;
(b) the geographical locator of the CSG services;
(c) the ESA and FSA to which the CSG services
relate;
(d) details of fault or service difficulties in
relation to the CSG services;
(e) any action taken by the licensee to prevent
the occurrence of the fault or service difficulties;
(f) the licensee’s conclusion as to the
underlying cause of the fault or service difficulties, and the licensee’s
reasons for reaching this conclusion;
(g) such results as are available at the
reporting date of the licensee’s investigation under subclause (3);
(h) any action taken by the licensee to remedy
the fault or service difficulties concerned;
(i) the action the licensee proposes to take to
remedy the CSG services; and
(j) the proposed timeframe for remediation of
the CSG services and supporting reasons for the timeframe specified.
Note The information that the licensee is
to provide under this subclause is not limited to information specific to the
access line on which fault or service difficulties occur, but may include
information on other parts of the network that may cause fault or service
difficulties on that access line if ACMA, following consultation with the
licensee, considers that that information is relevant.
(5) ACMA may request the licensee, in
writing, to give ACMA, within 15 working days, or such other timeframe as
ACMA agrees in writing, further information about the report.
(6) After considering the licensee’s proposed
remediation action under paragraphs (4) (i) and (j), ACMA may agree, or refuse
to agree, to the action.
(7) If ACMA neither agrees, nor refuses to agree,
to the proposed remediation action before whichever of the following periods is
applicable:
(a) if ACMA did not give a request under
subclause (5) in relation to the proposed remediation action — the period
of 10 working days after the day on which ACMA received the licensee’s report
under subclause (4);
(b) if ACMA gave a request under subclause (5) in
relation to the proposed remediation action — the period of 10 working
days after the day on which the request was complied with;
ACMA is taken, at the end of that period, to have agreed to the
proposed remediation action.
(8) If ACMA refuses to agree to the
proposed remediation action, ACMA must give written notice of the refusal to
the licensee, together with ACMA’s reasons for the refusal.
(9) If ACMA notifies the licensee under subclause
(8), the licensee must:
(a) review the proposed remediation action with
a view to addressing ACMA’s concerns; and
(b) submit a revised proposal for remediation to
ACMA within 10 working days after receiving ACMA’s notice under
subclause (8), or such other timeframe as ACMA agrees in writing.
(10) If the licensee submits a revised proposal as
mentioned in paragraph (9) (b), subclauses (6), (7) and (8) apply to the
revised proposal in the same way as they apply to the original proposal for
remediation action.
(11) The licensee must complete the remediation to
which ACMA has agreed, or to which ACMA is taken to have agreed under subclause
(7), and demonstrate to ACMA’s satisfaction that the agreed remediation has
been completed within the timeframes specified in the agreed remediation plan
or such other timeframes as ACMA agrees in writing.
(12) Within 15 working days after the end of each
quarter, or within such other timeframe as ACMA agrees in writing, the licensee
must provide information to ACMA under this clause for publication by ACMA at
its discretion (taking into account any views of the licensee concerning
publication of the information) where the remediation action to which ACMA has
agreed, or to which ACMA is taken to have agreed under subclause (7), has not
been undertaken within the agreed timeframe.
(13) If one or more fault or service difficulties occur in
relation to one or more CSG services during the remediation period (subsequent
faults), the licensee must ensure that the remediation that is either
planned or underway addresses the root cause or causes of the subsequent faults.
Subsequent faults are not otherwise to be treated as fault or service
difficulties for the purposes of this clause.
(14) If one or more fault or service difficulties occur in
relation to one or more CSG services during the monitoring period, the licensee
must report the fault or service difficulties to ACMA within 10 working days of
the end of each calendar month in which the difficulties occurred.
(15) For the purposes of this clause, the licensee must
provide sufficient information to ACMA, including its own assessment of whether
a fault or service difficulty is related, to allow ACMA to satisfy itself
whether a fault or service difficulty that occurs during the monitoring period
is a related fault or service difficulty. The licensee must provide this
information to ACMA to allow ACMA to make its decision within 15 working days
after ACMA receives the report mentioned in subclause (14).
(16) If one or more related fault or service difficulties
occur in relation to a CSG service during the monitoring period, the licensee
must:
(a) within 20 working days after the end of the
period mentioned in subclause (15):
(i) re‑examine its remediation
in light of the related fault or service difficulties; and
(ii) examine and address, by further
remediation, the root cause or causes of the fault or service difficulties;
(b) within 20 working days of taking action under
paragraph (a), report to ACMA in relation to its further remediation of
the fault or service difficulties.
(17) The monitoring period commences again immediately
after ACMA notifies the licensee that it has received the licensee’s report
under subclause (16).
(18) In this clause:
monitoring period, in relation to a CSG
service, means the 8 calendar month period immediately after the completion of
the remediation of the service under this clause.
related fault or service difficulty, in
relation to a CSG service, means a fault or service difficulty that arose from
either:
(a) the same root cause or causes of fault or
service difficulties that required the CSG service to be remedied under this
clause; or
(b) a similar root cause or causes of fault or
service difficulties that the licensee could have reasonably been expected to
address during remediation of the CSG service under this clause.
remediation period, in relation to a CSG
service, means the period between the day the licensee is required to report a
fault or service difficulty for that service under subclause (4) and the
completion of the remediation of the service under this clause.
28 Methodologies
The licensee must develop the methodologies for
preparing and verifying data for the purposes of clauses 25, 26 and 27 in
consultation with ACMA.
29 Obligations
in relation to the provision of mobile phone coverage in selected population centres
(1) In this clause:
Actual Acceptance Date has the same meaning
as in the Agreement.
Agreement means the Deed of Agreement dated
11 July 2002, as amended from time to time, between the Commonwealth and the
licensee in relation to the provision of funding under the regional mobile
phone program for mobile phone coverage in selected population centres.
Coverage has the same meaning as in the
Agreement.
Designated Town has the same meaning as in
the Agreement.
Operational Coverage Map has the same meaning
as in the Agreement.
Roaming has the same meaning as in the
Agreement.
Services has the same meaning as in the
Agreement.
(2) In this clause, a reference to the date on
which the Services come into operation is a reference to the date on which the
acceptance of the Services is completed as specified in item 2.11 of Schedule 1
of the Agreement.
(3) On or after the date on which the Services
come into operation in each Designated Town, the licensee must:
(a) provide mobile telephone services to each Designated
Town; and
(b) ensure that the area of Coverage in public
coverage maps issued by the licensee after the provision of the Operational
Coverage Maps is at least equal to the coverage shown in the Operational
Coverage Maps; and
(c) provide Coverage in accordance with Schedule
1 of the Agreement and the area shown in the Operational Coverage Maps; and
(d) provide for complaints handling and reports
on complaints handling as provided for in Item 2.12 of Schedule 1 of the
Agreement and Item 1.1 (c) (iv) of Schedule 7 of the Agreement.
(4) On or after the Actual Acceptance Date, the licensee
must, in relation to each Designated Town:
(a) make offers of Roaming (where applicable) as
provided for in Item 2.8 of Schedule 1 of the Agreement; and
(b) maintain and upgrade service levels to the
same standard that is generally available to the rest of the licensee’s
network; and
(c) provide comparable pricing and features to
those generally available to the rest of the licensee’s network; and
(d) provide continued opportunities for
Australian and New Zealand suppliers under the conditions that apply to the
Agreement; and
(e) provide the reports specified in Item 4 of
Schedule 7 of the Agreement.
(5) Paragraph (3) (a) will continue, subject to
applicable legislation:
(a) for a period of 5 years; and
(b) for a further period of 5 years unless the
Commonwealth agrees (with the Commonwealth not to unreasonably withhold its
consent) that external technological and/or regulatory changes make it
commercially impracticable or unviable for the licensee to provide the Services
in a Designated Town or which otherwise require the licensee to review the
method by which mobile telephone coverage is provided in the Designated Town.
(6) Paragraphs (3) (b), (3) (c), (3) (d) and
subclause (4) will continue until the date that is 5 years from the Actual
Acceptance Date.
(7) The obligations of the licensee under this
clause are subject to:
(a) clause 7 of the Agreement; and
(b) any amendments to those obligations agreed between
the Commonwealth and the licensee.
30 Obligations
in relation to the provision of mobile phone coverage on selected highways
(1) In this clause:
Actual Acceptance Date has the same meaning
as in the Agreement.
Agreement means the Deed of Agreement dated
15 August 2002, as amended from time to time, between the Commonwealth and the
licensee in relation to the provision of funding under the regional mobile
phone program for mobile phone coverage on selected highways.
Coverage has the same meaning as in the
Agreement.
Designated Highway has the same meaning as in
the Agreement.
Operational Coverage Map has the same meaning
as in the Agreement.
Roaming has the same meaning as in the
Agreement.
Services has the same meaning as in the
Agreement.
(2) In this clause, a reference to the date on
which the Services come into operation is a reference to the date on which the
acceptance of the Services is completed as specified in item 2.11 of Schedule 1
of the Agreement.
(3) On or after the date on which the Services
come into operation in relation to each Designated Highway, the licensee must:
(a) provide mobile telephone services to each
Designated Highway; and
(b) ensure that the area of Coverage in public
coverage maps issued by the licensee after the provision of the Operational
Coverage Maps is at least equal to the coverage shown in the Operational
Coverage Maps; and
(c) provide Coverage in accordance with Schedule
1 of the Agreement and the area shown in the Operational Coverage Maps; and
(d) provide for complaints handling and reports
on complaints handling as provided for in Item 2.12 of Schedule 1 of the
Agreement and Items 1.1 (c) (iv) and 4.1 (d) of Schedule 7 of the Agreement.
(4) On or after the Actual Acceptance Date, the
licensee must, in relation to each Designated Highway:
(a) make offers of Roaming (where applicable) as
provided for in Item 2.8 of Schedule 1 of the Agreement; and
(b) maintain and upgrade service levels to the
same standard that is generally available to the rest of the licensee’s
network; and
(c) provide comparable pricing and features to
those generally available to the rest of the licensee’s network; and
(d) provide continued opportunities for
Australian and New Zealand suppliers under the conditions that apply to the Agreement;
and
(e) provide the reports specified in Item 4 of
Schedule 7 of the Agreement.
(5) Paragraph (3) (a) will continue, subject to
applicable legislation:
(a) for a period of 5 years; and
(b) for a further period of 5 years unless the
Commonwealth agrees (with the Commonwealth not to unreasonably withhold its
consent) that external technological and/or regulatory changes make it
commercially impracticable or unviable for the licensee to provide the Services
to a Designated Highway or which otherwise require the licensee to review the
method by which mobile telephone coverage is provided along the Designated
Highway.
(6) Paragraphs (3) (b), (3) (c), (3) (d) and
subclause (4) will continue until the date that is 5 years from the Actual
Acceptance Date.
(7) The
obligations of the licensee under this clause are subject to:
(a) clause 7 of the Agreement; and
(b) any amendments to those obligations agreed
between the Commonwealth and the licensee.
31 Internet
assistance program for dial‑up Internet access
Internet
assistance program
(1) The licensee must upon request by a customer
in an eligible service area make available to that customer the Internet
assistance program for providing the minimum equivalent throughput.
(2) The licensee must ensure the Internet
assistance program is provided in a manner that is impartial and competitively
neutral.
(3) The licensee is not required to provide the minimum
equivalent throughput under subclause (1) to the extent that the licensee is
prevented from doing so by circumstances beyond its control, being
circumstances that include (but are not limited to) use by a customer of an
operating system that is not in common use and lack of cooperation on the part
of a customer, a carriage service provider or another third party.
Note 1 The cooperation mentioned in
subclause (3) is necessary as effective use and experience of the Internet is
dependent on a wide range of factors and requires a higher degree of customer
involvement in configuration and other decisions than more traditional
telecommunications services such as voice telephony.
Note 2 In the event of a dispute between
the licensee and a customer or other party as to whether an operating system
was in common use, it is intended that the ACA’s opinion on this matter would
prevail.
Technical
Support Service
(4) The licensee must provide assistance to a customer
who is referred to the Technical Support Service:
(a) at the time of the contact; or
(b) if reasonably unanticipated demand for the
Technical Support Service makes it necessary, at a consultation time agreed
with the customer.
(5) For the purposes of paragraph 4 (b), the licensee
must offer a consultation time that is:
(a) within 5 working days after the day on which
the customer first contacts the Technical Support Service; or
(b) a later day and a later time if the customer
prefers.
(6) Where the licensee undertakes a consultation under
paragraph (4) (b), it must complete the consultation:
(a) within 5 working days after the day on which
the customer first contacts the Technical Support Service; or
(b) on a later day and at a later time if the
customer prefers.
(7) Where, for a particular customer:
(a) use of the On‑line Help Service does
not result in the minimum equivalent throughput; and
(b) the customer accesses the Technical Support
Service; and
(c) the licensee determines that testing and
other activities are necessary to determine the appropriate way of providing
the customer with the minimum equivalent throughput;
the licensee must complete that testing and other necessary
activities within 3 working days.
(8) Where the licensee undertakes testing and other
necessary activities mentioned in paragraph 7 (c), the licensee must decide
within 2 working days after the conclusion of all testing and other necessary
activities undertaken with the cooperation of the customer whether field
activities or other activities are necessary and appropriate in the
circumstances to provide the minimum equivalent throughput.
(9) If the licensee decides that field activities are
necessary and appropriate in the circumstances to provide the minimum
equivalent throughput, the licensee must, unless circumstances make it
unreasonable, complete those activities within 90 working days after the day on
which the licensee makes its decision. This timeframe does not apply in
relation to a customer in an Outer Extended Zone until such time as the digital
radio concentrator system on which the customer’s service is provided is
upgraded in accordance with the Extended Zones Agreement.
Note The Extended Zones Agreement
contains a timetable for the upgrade of digital radio concentrator systems in
the Outer Extended Zones.
(10) If the licensee decides that other activities
are necessary and appropriate in the circumstances to provide the minimum
equivalent throughput, the licensee must, unless circumstances make it
unreasonable, complete those activities within 10 working days after the day on
which the licensee makes its decision.
Cost
recovery by the licensee
(11) For the purposes of this clause the
licensee can only charge a customer for costs the licensee reasonably incurs in
connection with the acquisition of necessary customer equipment for use by the
customer or necessary changes to the customer equipment of the customer. The
licensee may only charge such costs if the customer has been advised of, and
has agreed to, the charges in advance.
Note It is intended that the licensee
will not be able to charge a customer for the cost of data compression software
if the licensee considers that such software is the most appropriate means of
providing the minimum equivalent throughput. It is also intended that costs
associated with applicable standard commercial arrangements between a customer
and a service provider will be borne by the customer.
Promotion
of the Internet assistance program
(12) The licensee must take reasonable steps to publish
and distribute information about the requirements of this clause and its
activities to fulfil its obligations under it.
Note 1 It is intended that the ACA as the
regulator will determine that the steps the licensee takes are reasonable.
Note 2 It is intended that information be
published and distributed via the Internet as well as by more traditional
means.
Reporting
of the licensee’s compliance with this clause
(13) The licensee must provide the ACA with written
reports on its compliance with the requirements of this clause, covering such
matters as the ACA reasonably requires.
Note The ACA can require a carrier to keep
records and provide information under Part 27 of the Telecommunications
Act 1997.
(14) The reports must:
(a) cover the periods of 1 January to 31 March,
1 April to 30 June, 1 July to 30 September, and 1 October and to
31 December, or such other periods as the ACA determines following
consultation with the licensee; and
(b) be provided to the ACA within 30 working days
after the end of the period to which the report relates, or such other period
as the ACA determines following consultation with the licensee.
Licensee’s
ongoing contractual obligations
(15) Nothing in this clause affects the licensee’s
obligations under:
(a) the Extended Zones Agreement; or
(b) the Internet Assistance Program Funding Deed.
Definitions
(16) In this clause:
carriage service provider has the same
meaning as in the Act.
carrier has the same meaning as in the Act.
customer means:
(a) a customer of a carrier or carriage service
provider to whom the carrier or provider supplies up to 2 standard telephone
services 1 or both of which enables the customer to obtain dial‑up access
to the Internet over an access line that is part of the licensee’s public
switched telephone network but does not include:
(i) a carrier or carriage service
provider; or
(ii) a customer with an intervening
system (such as a PABX) that might limit Internet throughput; or
(iii) a customer with an interim
service or an alternative service,
as defined in the Telecommunications (Customer Service Guarantee) Standard
2000 (No. 2); or
(iv) a customer supplied with an interim
priority service; or
(b) a nominee of a customer appointed in
accordance with procedures of the licensee (if any).
customer equipment has the same meaning as in
the Act.
eligible service area
means a geographical area within:
(a) a State of
Australia; or
(b) the Australian Capital Territory; or
(c) the Jervis Bay Territory; or
(d) the Northern Territory.
Extended Zones Agreement means the Agreement
for the provision of untimed local calls, untimed Internet access and other
carrier services to Extended Zones dated 1 June 2001 between the
Commonwealth and the licensee, as amended from time to time.
field activities means activities
undertaken by the licensee in the field, including inspections, on‑site
testing, maintenance and infrastructure improvements, with the objective of
providing a customer with the minimum equivalent throughput.
Internet assistance program means the On‑Line
Help Service integrated with the Technical Support Service that the licensee
can technically and cost effectively employ in appropriate circumstances to
assist a customer to achieve the minimum equivalent throughput while accessing
the Internet using the customer’s standard telephone service access line that
is part of the licensee’s public switched telephone network.
Internet Assistance Program Funding Deed means
the Funding Deed dated 29 September 2001 between the Commonwealth and the
licensee in relation to the Internet Assistance Program, as amended from time
to time.
minimum equivalent throughput means an Internet
throughput experience of a customer that is equivalent to that which would be
experienced if the customer were transferring data in an Internet environment:
(a) using a public switched telephone network
(PSTN) service that:
(i) is supplied to fulfil the
obligation in paragraph 9 (1) (a) of the Consumer Protection Act; and
(ii) has a 19.2 kilobits per second
line rate capability; and
(b) using a V.90 modem that has direct connection
to a server modem and operates using applicable technical protocols and methods
(including error correction) for optimal performance that are current as at the
commencement of this clause; and
(c) without the use of compression techniques;
and
(d) is consistent with the method of assessing
minimum equivalent throughput:
(i) as set out in the document known
as Telstra IAP Self Help – Throughput Tester Technical Specification and
Calibration that was approved by the Internet Assistance Program Advisory
Panel on 28 February 2002; or
(ii) as otherwise determined in writing
by the ACA following consultation with the licensee.
Note 1 Minimum equivalent throughput is
intended to be a measure of customer experience in relation to basic web
browsing and emailing. It is determined by the download time for a set of
Internet and email files that would be expected from ordinary Internet usage
when transmitted to a customer under reasonable conditions with cooperation
from the customer and other service providers, including the licensee. It is
not intended to refer to the capability of a customer access line (known as the
line rate) to transfer data at a particular speed. The on‑line testing
facility mentioned in paragraph (a) of the definition of Technical
Support Service is intended to be available to a customer to enable the
customer to assess their Internet throughput against the minimum equivalent
throughput.
Note 2 The document known as Telstra
IAP Self Help – Throughput Tester Technical Specification and Calibration
is available from the ACA, including from its website.
On‑Line Help Service means a service of
the licensee that provides:
(a) self‑help solutions and resources,
including an Internet Self‑Help Kit for improving Internet throughput, to
customers that are:
(i) accessible on‑line or by a
freecall telephone request; and
(ii) updated to take into account
accumulated experience with the Internet assistance program; and
(b) a first contact point for customers and
potential customers seeking advice and support to improve their Internet
throughput, including help‑desk functionality by which suggested changes
to the configuration and environment of a customer’s computer, modem or other
customer equipment can be recommended; and
(c) appropriate information to promote the use
of the Internet by customers, advise how generally to achieve optimal Internet
performance and assist customers requiring higher bandwidth or alternative
Internet access arrangements to identify a range of alternatives (including
alternatives to the public switched telephone network) to meet their individual
Internet throughput requirements; and
(d) referrals to the Technical Support Service
for more detailed assessment and, if necessary, assistance, including field
activities, to improve Internet throughput.
standard telephone service has the same
meaning as in the Consumer Protection Act.
Technical Support Service means a service of
the licensee that provides:
(a) an on‑line testing facility that
customers may use to assess their Internet throughput and the adequacy of their
service and equipment against the minimum equivalent throughput; and
(b) where appropriate, diagnosis, through remote
line assessment or on‑site inspections, of the causes of Internet
throughput not equalling the minimum equivalent throughput; and
(c) improvement of the performance of the
customer access network of the licensee’s public switched telephone network
though line‑conditioning or other minor works; and
(d) advanced software solutions (for example,
data compression solutions such as modem accelerator products); and
(e) other appropriate alternative Internet
access technology solutions as notified in writing by the licensee to the ACA.
Note The causes mentioned in paragraph
(b) of this definition may include, for example, external factors such as
electric fence interference or problems associated with internal wiring or
difficulties associated with an Internet service provider’s network or
services.
32 Licensee’s
obligation to maintain a local presence in regional, rural and remote parts of
Australia
Local
presence obligation
(1) The licensee must maintain a local presence in
regional, rural and remote Australia, to the extent that this:
(a) is broadly compatible with the licensee’s
overall commercial interests; and
(b) is not unduly prescriptive and does not
impose undue financial and administrative burdens on the licensee.
Preliminary
requirements about local presence plans
(2) Within 120 days after the commencement of the Carrier
Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment
No. 2 of 2005), the licensee must give the Minister a draft local presence
plan setting out the range of activities and strategies the licensee deploys or
will deploy in regional, rural and remote Australia to fulfil the obligation
under subclause (1).
(3) The Minister may give guidance in writing to the
licensee as to particular matters the Minister considers relevant in
formulating a draft local presence plan. The guidance must not be inconsistent
with the requirements of subclause (1).
(4) The licensee must have regard to any guidance given
under subclause (3).
(5) A copy of any guidance given under subclause (3) is
to be published on the website of the Department of Communications, Information
Technology and the Arts (www.dcita.gov.au).
(6) A draft plan must specify the period to which it
relates. The period must run for no more than 3 years.
(7) The licensee must have a current local presence plan
at all times except:
(a) within the period mentioned in subclause
(2); or
(b) at any time when the licensee has submitted a
draft plan to the Minister and the Minister has not yet approved that draft
plan; or
(c) at any time when the Minister has refused to
approve a draft plan and has not approved a fresh draft local presence plan.
(8) For the purposes of subclause (7), the licensee has
a current local presence plan if the licensee has given a draft plan to the
Minister and the Minister has approved the draft plan, or is taken to have
approved the draft plan, under subclause (13) or (14).
(9) A draft plan need not contain any commercially
sensitive information.
(10) Notwithstanding subclause (9), the Minister may
request the licensee to provide commercially sensitive information, or other
information, to assist the Minister in deciding whether to approve a draft
plan.
Public
consultation on draft local presence plan
(11) Before giving the Minister a draft local presence
plan, the licensee must:
(a) publish a preliminary version of the draft
plan and invite submissions to the licensee about the preliminary version
within a specified period from:
(i) representatives of local
government bodies in regional, rural and remote parts of Australia; and
(ii) representatives of end‑users
of telecommunications services in those parts of Australia; and
(iii) representatives of the interests
of people in those parts of Australia; and
(b) give consideration to any submissions
received within that period from those persons; and
(c) prepare a report for the Minister about the
submissions and any changes made to the draft plan as a result of the
submissions.
Note The licensee’s publication of a
preliminary version of the draft plan should be consistent with the
requirements of subclauses (36), (37) and (38), which deal with the publication
of an approved local presence plan.
(12) The period specified in the invitation must run for
at least 42 days.
Ministerial
consideration of draft local presence plan
(13) If the licensee gives the Minister a draft local
presence plan together with the report mentioned in paragraph (11) (c),
the Minister must:
(a) approve the draft plan; or
(b) refuse to approve the draft plan.
(14) If the Minister neither approves, nor refuses to
approve, the draft plan before the end of 120 days after the Minister receives
the draft plan (the relevant period), then the Minister is taken,
at the end of the relevant period, to have approved the draft plan.
(15) If the Minister approves a draft plan, or is taken to
have approved a draft plan, the draft plan becomes an approved local presence
plan.
(16) If the Minister refuses to approve a draft plan, the
Minister may, by written notice given to the licensee, direct the licensee to
give the Minister a fresh draft local presence plan within the period specified
in the notice. The notice may specify the matters that need to be addressed in
the fresh draft local presence plan. The notice must not be inconsistent with
the requirements of subclause (1).
(17) The notice may direct the licensee to undertake
further consultation, including the manner in which the consultation is to be
undertaken and the period of the consultation. If the notice does not specify
the manner and the period of consultation, consultation is to be undertaken in
accordance with subclauses (11) and (12).
(18) The licensee must comply with a direction under
subclause (16) or (17).
(19) In deciding whether to approve a draft local presence
plan, the Minister must have regard to the requirements of subclause (1) and
any guidance given to the licensee under subclause (3) and consider the extent
to which the draft plan addresses each of the following matters:
(a) telecommunications service interests of the
licensee’s regional, rural and remote customers and potential customers,
including:
(i) how the management structure and
decision‑making processes in the licensee will address these interests;
and
(ii) how these interests will be
represented within the licensee’s management structure;
(b) customer service and support to meet the
telecommunications service interests of the licensee’s customers in regional,
rural and remote parts of Australia, including:
(i) management of complaints from the
licensee’s customers in regional, rural and remote parts of Australia; and
(ii) provision of telecommunications
service information to the licensee’s customers in regional, rural and remote
parts of Australia;
(c) coordination and management of the
licensee’s activities in regional, rural and remote parts of Australia,
including:
(i) targeted application of the
licensee’s resources to meet the telecommunications service interests of the
licensee’s customers in regional, rural and remote parts of Australia; and
(ii) an integrated approach to
telecommunications service connection, maintenance and repairs in regional,
rural and remote parts of Australia;
(d) support by the licensee through its service
activities for broader community development in regional, rural and remote
parts of Australia;
(e) arrangements that the licensee currently has
in place to address telecommunications service interests of regional, rural and
remote customers, any changes to those arrangements during the period of the
local presence plan and the consultation and other related processes that the
licensee proposes to follow in relation to any such changes;
(f) the licensee’s measures for reporting on its
performance in relation to the local presence plan and the local presence
obligation mentioned in subclause (1).
(20) The Minister may have regard to any other relevant
matters.
Notification
of the Minister’s decision
(21) After deciding whether to approve a draft local
presence plan, the Minister must:
(a) give a written notice setting out the
decision to both the licensee and ACMA; and
(b) if the
Minister has approved the draft plan — give a copy of the approved plan to
ACMA.
Note It is intended that ACMA, in
addition to Telstra, will publish the approved local presence plan. ACMA has a
role in the enforcement of this and other licence conditions (see sections 68,
69, 70, 570 and 571 of the Act). ACMA is also required to monitor, and report
each financial year to the Minister on, all significant matters relating to the
performance of carriers and carriage service providers with particular
reference to consumer satisfaction, consumer benefits and quality of service
(see section 105 of the Act).
(22) A copy of a notice under paragraph (21) (a) must
be published in the Gazette.
(23) If the Minister has refused to approve a draft local
presence plan, the Minister must give the licensee a written notice setting out
the reasons for the refusal.
Variation
of approved local presence plan
(24) If an approved local presence plan (the current
plan) is in force and the licensee gives the Minister a draft variation
of the plan, the Minister must:
(a) approve the variation; or
(b) refuse to approve the variation.
(25) Before deciding whether to approve the variation, the
Minister may, if the Minister considers it appropriate, require the licensee:
(a) to publish a preliminary version of the
draft variation and invite submissions to the licensee about the preliminary
version within a specified period from:
(i) representatives of local
government bodies in regional, rural and remote parts of Australia; and
(ii) representatives of end‑users
of telecommunications services in those parts of Australia; and
(iii) representatives of the interests
of people in those parts of Australia; and
(b) to give consideration to any submissions
received within that period from those persons; and
(c) to prepare a report for the Minister about
the submissions and any changes made to the draft variation as a result of the
submissions.
(26) In deciding whether to approve any variation, the
Minister must have regard to the requirements of subclause (1), any guidance
given to the licensee under subclause (3) and the matters specified in
paragraphs (19) (a) to (f).
(27) After deciding whether to approve a draft variation
of an approved local presence plan, the Minister must:
(a) give a written notice setting out the
decision to both the licensee and ACMA; and
(b) if the
Minister has approved the variation — give a copy of the variation to
ACMA.
Note It is intended that ACMA, in
addition to Telstra, will publish the approved variation of an approved local
presence plan.
(28) A copy of a notice under paragraph (27) (a) must
be published in the Gazette.
(29) If the Minister has refused to approve a draft
variation, the Minister must give the licensee a written notice setting out the
reasons for the refusal.
Minister
may direct variation or replacement of approved local presence plan
(30) If an approved local presence plan (the current
plan) is in force, the Minister may give the licensee a written notice
that is not inconsistent with the requirements of subclause (1) requiring the licensee:
(a) within the period set out in the notice, to
give the Minister a draft variation of the current plan that addresses the
matters (if any) specified in the notice; or
(b) within the period set out in the notice, to
give the Minister a fresh draft local presence plan that is expressed to
replace the current plan and that addresses the matters (if any) specified in
the notice.
(31) The licensee must comply with a notice given under
subclause (30).
New
draft local presence plan to be submitted before expiry of old plan
(32) If an approved local presence plan (the current
plan) is in force, the licensee must give the Minister a new draft
local presence plan 120 days before the expiry of the current plan.
Note The consultation requirements in subclauses
(11) and (12) apply to the new draft plan.
Replacement
of approved local presence plan
(33) If an approved local presence plan (the original
plan) is in force, a draft local presence plan must be expressed to
replace the original plan.
(34) When the draft plan becomes an approved local
presence plan, the original plan ceases to be in force.
Compliance
with approved local presence plan
(35) If an approved local presence plan is in force, the
licensee must take all reasonable steps to ensure that the plan is complied
with.
Approved
local presence plan to be made available to the public
(36) If an approved local
presence plan is in force, the licensee must:
(a) make copies of the plan available for
inspection, or for inspection and purchase, by the public; and
(b) make copies of extracts from the plan
available for inspection, or for inspection and purchase, by the public.
(37) A plan or extracts must be reasonably accessible for
inspection, or inspection and purchase, on the Internet.
(38) The price charged by the licensee for the purchase of
a copy of a plan or extracts must not exceed the reasonable cost incurred by
the licensee in making the copy of the plan or extracts available for purchase.
Annual
compliance reports
(39) As soon as practicable, and in any event within 60
days, after the end of each financial year, the licensee must:
(a) give the Minister and ACMA a report setting
out details of the progress made by the licensee in implementing each approved
local presence plan that was in force at any time during that year; and
(b) make a summary of the report available to the
public.
(40) The summary need not contain any commercially
sensitive information.
Schedule
3 Deed poll for CUSPs and aspirant
CUSPs requesting information relating to contestable universal service areas
The
deed poll referred to in clause 17 is as follows:
CONFIDENTIALITY
DEED poll of aspirant competing universal servIce provider or competing universal
service provider in relation to access to information for a contestable
universal service area
This Deed poll is made on the [date] day of [month]
[year] by [the aspirant competing universal service provider or
competing universal service provider] [ABN number] (the ‘Promisor’).
RECITALS
A. By this Deed Poll the Promisor indicates to the
Commonwealth and Telstra Corporation Limited (‘Telstra’) that it wishes to
participate in the universal service obligation (USO) contestability pilots
being conducted by the Commonwealth in two pilot areas in Victoria and South
Australia and New South Wales and Queensland (‘the USO Contestability Pilots’).
B. As a result of making this Deed Poll the Promisor
may be provided with or given access to certain information by Telstra to
assist the Promisor to decide whether to enter as a Competing Universal Service
Provider (CUSP) in the contestable universal service area it has specified in
this Deed Poll and/or to inform itself about operating as a CUSP in that area if
approved as a CUSP.
C. The Promisor acknowledges that information provided
to it as contemplated by Recital B has been or will be provided at the request
of the Promisor subject to the terms of this Deed Poll.
D. The Promisor acknowledges that the information
provided to the Promisor will be provided by Telstra under the Carrier
Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment
No. 1 of 2001) of September 2001.
E. The Commonwealth and Telstra, in order to protect
the confidential nature of the information referred to in Recitals B, C and D,
require the Promisor to enter into this Deed Poll.
OPERATIVE PART
1. Definitions and Interpretation
1.1 Definitions
1.1.1 In this
Deed Poll, unless the context requires otherwise:
ACA means the Australian Communications
Authority.
Ancillary Documentation means copies,
abstracts, reports, notes, summaries and any other records made in respect of
the Confidential Information by the Promisor or an Authorised Person, stored or
existing in any form or medium.
Authorised Person means a person who has been
given access to Confidential Information in accordance with clause 3.1.3.
Business Day means a day on which Australian
Government offices are open in the Australian Capital Territory.
Confidential Information means the following
information, including, without limitation, information previously provided by
Telstra to the Promisor, whether oral or written, or in CDROM, electronic,
magnetic, microfiche or any other form or medium and whether or not stored in
an electronic data‑base or as a computer record:
(a) Telstra Information; and
(b) Intellectual Property Rights in the
information referred to in paragraph (a);
that is provided by Telstra to the Promisor under the Carrier
Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment
No. 1 of 2001), but does not include information which the Promisor can
demonstrate:
(c) was in the public domain prior to its
disclosure to the Promisor or which, after such disclosure, enters the public
domain through no act or omission of the Promisor;
(d) was made available to the Promisor on a non‑confidential
basis by Telstra;
(e) was made available to the Promisor on a non‑confidential
basis by a source other than Telstra, but only if the source was not in breach
of any obligation of confidentiality owed to Telstra; or
(f) was or is, at any time, made available to
the Promisor by Telstra on an non‑confidential basis or derived by the
Promisor but only if the derivation was not in breach of any obligation of
confidentiality owed to Telstra, other than for the Purpose of Disclosure.
CUSP means a competing universal service
provider.
Deed Poll means this Deed Poll, including the
Recitals and Schedules.
Intellectual Property
Rights means any rights in relation to any copyright, trade mark, trade
secret, service mark, design, drawing, patent, know‑how, secret process
and any other similar proprietary rights and the rights to the registration of
those rights, whether created, formed or arising before or after the date of
this Deed Poll, in Australia or elsewhere.
Notice means any notice, direction,
certification or similar communication given in relation to this Deed Poll.
Other Information means any information (not
being Confidential Information) relating to the USO Contestability Pilots which
is made available to the Promisor (whether directly or indirectly) by or on
behalf of the Commonwealth or Telstra, and whether oral or written or
electronic, magnetic, microfiche or in any other form or medium, and includes
information of the kind referred to in paragraphs (c), (d), (e) and (f) of the
definition of Confidential Information.
Purpose of Disclosure means the sole purpose
of assisting the Promisor to decide whether to enter as a CUSP a contestable
universal service area it has specified in Schedule 1 to this Deed Poll and/or
to inform itself about operating as a CUSP in that area if approved as a CUSP.
Schedule means a schedule to this Deed Poll.
Telstra Information means the information
provided by Telstra to the Promisor under the licence condition referred to in
Recital D and pursuant to this Deed Poll.
USO Contestability Pilot has the meaning
specified in Recital A.
1.2 Interpretation
1.2.1 In this Deed Poll, unless the context requires
otherwise:
(a) words denoting the singular include the
plural and vice versa, and words denoting one gender include all other genders.
(b) a reference to a person includes a reference
to a government, an authority, a body corporate, a partnership, a trust and an
unincorporated association, and includes a reference to the person’s executors,
administrators, heirs, successors and assigns.
(c) clause headings are for convenience of
reference only and have no effect on the construction or interpretation of the
provisions hereof.
(d) an obligation, representation or warranty in
favour of or for the benefit of two or more persons benefits them jointly and
severally.
(e) where the Promisor comprises more than one
person, a reference to the Promisor will be construed as a reference to each of
those persons jointly and severally.
(f) a reference to Confidential Information or
Ancillary Documentation includes a reference to any part of that Information or
Documentation.
1.2.2 This Deed Poll applies in respect of Confidential Information
that was provided to the Promisor prior to and in anticipation of this Deed
Poll as well as Confidential Information which becomes known to the Promisor at
the time of or subsequent to the Promisor’s execution of this Deed Poll.
2. Operation of Deed Poll
2.1 Effect
and duration
2.1.1 This Deed Poll will be binding upon the Promisor from
the date of execution by the Promisor.
2.1.2 This Deed Poll will continue in full force and effect,
notwithstanding that the Promisor ceases to have any interest in becoming CUSP
under the USO Contestability Pilots, the Commonwealth notifies the Promisor
that the USO Contestability Pilots have been completed, terminated, suspended
or delayed, the ACA notifies the Promisor that it will not be approved as a
CUSP or the Promisor has its approval as a CUSP revoked.
2.1.3 Each obligation of the Promisor under this Deed Poll
is an obligation separate and independent from each other obligation, and each
is owed severally to and for the benefit of Telstra.
2.2 Provision
of Confidential Information
The Promisor acknowledges that Telstra is obliged
to provide, and will provide, the Confidential Information to the Promisor only
if the Promisor has signed this Deed Poll.
3. Use of confidential information
3.1 Effect
and duration
3.1.1 The Promisor must not use the Confidential
Information, or create or use the Ancillary Documentation for a purpose other
than the Purpose of Disclosure.
3.1.2 The Promisor acknowledges that if Telstra provides the
Confidential Information to the Promisor by way of CD ROM or other electronic
format, Telstra may encrypt or otherwise electronically protect the data.
3.1.3 The Promisor may disclose, or provide copies of, the
Confidential Information to the employees, advisers, consultants, agents,
financiers and advisers to financiers of the Promisor provided that:
(a) the Promisor provides an executed copy of
the Deed Poll in Schedule 3 to the ACA for each individual who is proposed to
have access to the Confidential Information; and
(b) the Promisor undertakes to disclose such
information only to the extent necessary for the Purpose of Disclosure.
3.1.4 If the Confidential Information is contained in data
that is encrypted or otherwise electronically protected, the Promisor may
provide the encryption key, relevant password, or other means for accessing the
data, to a person, only if the requirements of clause 3.1.3 are met in relation
to the person.
3.1.5 Despite disclosure of Confidential Information under
clause 3.1.3, the Promisor remains fully responsible for ensuring that the
confidentiality of the Confidential Information is at all times preserved.
3.1.6 The Promisor acknowledges that Telstra is not required
to provide the Confidential Information to any person who is not an Authorised
Person.
3.1.7 The Promisor must ensure that no act or omission of an
Authorised Person in relation to the Confidential Information, or Ancillary
Documentation occurs which, if it were an act or omission of the Promisor,
would constitute a breach of this Deed Poll or otherwise would cause loss or
damage to the Commonwealth or Telstra
3.1.8 If requested by the Commonwealth, following a request
in writing by Telstra, the Promisor must promptly provide detailed and complete
particulars, including relevant documentation, of the arrangements the Promisor
has in place with Authorised Persons in relation to Confidential Information
and Ancillary Documentation.
3.1.9 The Promisor must not without the prior written
consent of the Telstra, make enquiries of, or hold discussions with, the
executive management, staff, agents, advisers, customers, suppliers, creditors,
lessees or licensees of Telstra in connection with the Confidential Information
or the Purpose of Disclosure.
3.1.10 The Promisor must at all times keep strictly
confidential all Confidential Information and Ancillary Documentation and must
not disclose, provide, transmit or publish the Confidential Information or
Ancillary Documentation to, or permit access to it by, or discuss the contents
of it with, any person other than an Authorised Person.
3.1.11 The Promisor acknowledges that the Commonwealth may,
following a request in writing by Telstra, at any time require the Promisor to
deny access to the Confidential Information or Ancillary Documentation to any
Authorised Person and to retrieve from the Authorised Person the Confidential
Information and Ancillary Documentation.
3.1.12 If an Authorised Person ceases to be a person described
in clause 3.1.3 or it is no longer necessary for the person to have access to
the Confidential Information for the Purpose of Disclosure, the Promisor must
immediately retrieve all Confidential Information and Ancillary Documentation
held by that person.
3.1.13 If:
(a) the Confidential Information is no longer
required by the Promisor for the Purpose of Disclosure, or
(b) after 6 months of receiving the Confidential
Information an aspirant CUSP has not sought approval to become a CUSP for the
contestable universal service area to which the Confidential Information relates,
or
(c) the aspirant CUSP’s application for approval
as a CUSP for the contestable universal service area concerned has not been
approved by the ACA, or
(d) the Promisor otherwise receives a Notice from
the Commonwealth, whether or not following a request to the Commonwealth in
writing from Telstra,
the Promisor must, unless Telstra otherwise provides the
Confidential Information on a basis that renders it unnecessary, promptly and
at its own expense:
(e) cease to use, and cease to allow Authorised
Persons to use, all Confidential Information and Ancillary Documentation held
by the Promisor or Authorised Persons; and
(f) deliver to Telstra, or if Telstra otherwise
directs, destroy or erase, all Confidential Information and Ancillary
Documentation held by the Promisor and Authorised Persons.
In addition, if requested by Telstra, the Promisor must immediately
provide to Telstra a written certificate that this clause has been complied
with and that any items of Confidential Information or Ancillary Documentation
(if any) retained by the Promisor or an Authorised Person have been retained
only because it is required by law.
3.1.14 The Promisor must ensure that the Confidential
Information and Ancillary Documentation is stored and used in a manner such
that:
(a) access is restricted to the Promisor and
Authorised Persons;
(b) each item of Confidential Information or
Ancillary Documentation is clearly identified and marked as ‘CONFIDENTIAL’;
(c) its use does not infringe the Intellectual
Property Rights of any person; and
(d) it is used in accordance with any conditions
of use notified to the Promisor by the Commonwealth.
3.1.15 The Promisor must maintain complete, accurate and up‑to‑date
records of all use, copying (including number of copies made and destroyed or
erased), and disclosure of Confidential Information, and must immediately
produce those records to the Commonwealth or ACA upon request.
3.1.16 The Promisor must notify the Commonwealth, ACA and
Telstra immediately if it becomes aware of any unauthorised use, access,
copying or disclosure of any of the Confidential Information, or any
anticipated or actual breach of this Deed Poll, or any actual or threatened act
or omission of an Authorised Person of the type referred to in clause 3.1.15.
If the Promisor or an Authorised Person is, or anticipates being, legally
compelled to disclose any Confidential Information or Ancillary Documentation,
the Promisor must immediately notify Telstra of that circumstance, and must, at
the Telstra’s direction:
(a) assist and take such steps as will permit
the Telstra to oppose or restrict that disclosure, including allowing Telstra,
should it so elect, to direct the conduct by the Promisor or Authorised Person
of legal action opposing the application for or order of disclosure, or conduct
the legal action on behalf of the Promisor or Authorised Person, in which case
Telstra will be responsible for the costs of the legal action;
(b) take all
lawful measures available to oppose or restrict that disclosure; and
(c) to the extent practicable, make disclosure
on terms which will preserve the confidentiality of the Confidential
Information and the Ancillary Documentation.
3.1.17 The Promisor acknowledges that prior to taking any
action or giving any directions, as contemplated by clause 3.1.16, Telstra will
notify the Commonwealth of its intention to do so and will obtain the
Commonwealth’s consent, which consent will not be unreasonably withheld.
3.2 Non‑conferral
of rights
3.2.1 Nothing in this Deed Poll creates any right in the
Promisor to receive any of the Confidential Information, nor does this Deed
Poll grant to the Promisor any rights of a proprietary or personal nature in or
to use the Confidential Information.
4. Indemnity
and release
4.1 Indemnity
4.1.1 The Promisor indemnifies the Commonwealth, Telstra,
each of their officers and employees in respect of any expenses, losses,
damages, outgoings and costs incurred (whether directly or indirectly) by any
of them as a result of an act or omission by the Promisor or an Authorised
Person in connection with the Confidential Information or the Other Information
including (without being limited to) a breach of this Deed Poll.
4.1.2 The Promisor acknowledges that the Commonwealth and
Telstra hold the benefit of the indemnity provided in clause 4.1.1 in trust for
themselves and for those officers and employees referred to in that clause who
have been officers or employees of either of the Commonwealth or Telstra at any
time during the period commencing 1 year prior to the date of this Deed Poll
and ending 6 years after the date of this Deed Poll, and the Promisor
acknowledges that by reason of that trust, each of those beneficiaries may
enforce that indemnity on their own behalf or may have the indemnity enforced
on their behalf by the Commonwealth or Telstra.
4.2 Release
4.2.1 The Promisor releases each of the Commonwealth,
Telstra, their officers, employees or advisers in respect of any claims which
may arise from or in connection with the provision or use of the Confidential
Information or the Other Information, to the fullest extent that the law
permits such a release to be given.
4.2.2 The Promisor agrees that no duty of care is owed by
the Commonwealth, Telstra, their officers, employees or advisers in respect of
the provision, compilation or preparation of the Confidential Information or
the Other Information, and to the extent that the law recognises such a duty of
care to exist despite this clause, the Promisor must not, and will ensure that
the Authorised Persons do not, make a claim of any sort against the
Commonwealth, Telstra, their officers, employees, or advisers in reliance upon
such a duty of care.
5. Disclaimer
5.1 No
reliance on Confidential Information or Other Information
5.1.1 Nothing contained in the Confidential Information or
the Other Information, nor the provision of the Confidential Information or the
Other Information, will constitute or be deemed to constitute an offer,
recommendation, or invitation by the Commonwealth or any other person
(including Telstra, its officers, employees, advisers and agents) in respect of
the USO Contestability Pilots, nor is it in any way purported that the
Confidential Information or the Other Information will comprise all or any
information that the Promisor or any other person may require or expect to find
in order to evaluate or investigate the opportunities available under the USO
Contestability Pilots.
5.1.2 The Promisor acknowledges that the details of
Confidential Information will not be verified by the Commonwealth, Telstra,
their officers, employees or advisers, unless otherwise stated in the
Confidential Information. The Promisor releases the Commonwealth and Telstra,
and their advisers, severally and jointly from all and any liability to any person
in respect of anything done or omitted to be done (and the consequences of that
action or omission) in reliance upon any of the Confidential Information.
5.1.3 The Promisor acknowledges that no representation or
warranty, express or implied, is made as to the currency, accuracy, reliability
or completeness of the information contained in the Confidential Information by
the Commonwealth or Telstra or any of their employees, officers, advisers or
agents. Without limiting the foregoing, the Promisor acknowledges that no
representations or warranties of any sort, whether express or implied, are made
by the Commonwealth, Telstra or their employees, officers, advisers and agents
to the effect that reasonable care has in fact been taken in the preparation and
provision of the Confidential Information, or to the effect that any of the
forecasts, estimates, assumptions or opinions contained in the Confidential
Information will be achieved or prove correct, either totally or partially.
5.1.4 The Promisor acknowledges that none of the
Commonwealth, Telstra, their advisers, agents, employees or officers has any
responsibility to inform the Promisor of any matter arising or coming to their
notice which may affect or qualify any matter contained in the Confidential Information,
and the provision of the Confidential Information will not under any
circumstances create any representation that there has been no change in the
Confidential Information or Other Information since the date of its preparation
or the date at which it is expressed to be applicable.
5.1.5 The Promisor acknowledges that any Confidential
Information made available to it is done so on the basis of the Promisor’s
undertakings under this Deed Poll, and the Promisor represents and warrants
that any reliance which it places on any of the Confidential Information is
solely at its own risk and that in doing so it has satisfied itself as to the
accuracy and completeness of the Confidential Information.
5.1.6 This clause 5 is an essential term of this Deed Poll
(without limiting the essential nature of any other clause of this Deed Poll).
5.1.7 The provisions of clause 5 apply to all Confidential
Information whether or not it contains or bears a statement that ‘a disclaimer
applies to this document’ or other statement to that effect. Any express
disclaimer is in addition to and does not limit clause 5.
6. Miscellanous
Provisions
6.1 Injunction
proceedings
6.1.1 In the event of there being an act or omission of an
Authorised Person which, if it were the act or omission of the Promisor, would
threaten or constitute a breach of this Deed Poll, or in the event of a
threatened or actual breach of this Deed Poll by the Promisor, Telstra is
entitled to seek an injunction to restrain the relevant act or omission.
6.1.2 The Promisor warrants that it will not, and will
ensure that Authorised Persons do not, oppose the granting of such an
injunction on the basis that no actual loss or damage has been or will be
sustained by either the Commonwealth or Telstra.
6.2 Governing
law
6.2.1 This Deed will be construed in accordance with and
governed by the laws in force in the Australian Capital Territory, and the
Promisor submits to the non‑exclusive jurisdiction of the Courts of that
Territory.
6.3. Entire understanding
6.3.1 This Deed Poll constitutes the entire understanding
between the Commonwealth and the Promisor and between Telstra and the Promisor
in relation to the protection and use of the Confidential Information, and
supersedes all previous negotiations, representations and arrangements (whether
oral or in writing) between them regarding the use of the Confidential
Information.
6.4 Waiver and variation
6.4.1 The Promisor acknowledges that no waiver, variation,
discharge or release in relation to this Deed Poll or a provision of this Deed
Poll will be valid unless it is in writing and signed by the Commonwealth,
following consultation with Telstra, and no waiver of any breach of a provision
of this Deed Poll will operate as a waiver of any other breach of the same provision
or of any other provision, and any waiver will not affect the operation of this
Deed Poll except to the extent of the waiver.
6.5 Notices
6.5.1 Any Notice given or
required to be given in relation to this Deed Poll may be delivered by hand,
sent by pre‑paid ordinary post (or by pre‑paid airmail post if sent
to or from a place outside Australia) or transmitted by facsimile to the
Commonwealth, ACA, Telstra or the Promisor as the case may be in accordance
with the address and facsimile information specified in Schedule 2 to this Deed
Poll (or such other address and facsimile information for these persons as
advised from time to time by those persons to each other).
6.5.2 A Notice is deemed to have been received upon delivery
(if delivered by hand or posted to or from a place outside Australia), upon
successful transmission by facsimile as recorded by the transmitting machine
(if sent by facsimile transmission), or on the second Business Day after the
date of sending (if posted by ordinary mail to or from a place in Australia).
6.6 Severability
6.6.1 If the whole or any part of a provision of this Deed
Poll is void, unenforceable or illegal in a jurisdiction, it is severed for
that jurisdiction. The remainder of this Deed Poll has full force and effect
and the validity and enforceability of that provision in any other jurisdiction
is not affected. This clause has no effect if the severance alters the basic
nature of this Deed Poll.
6.7 Non‑Merger and exercise of rights
6.7.1 The rights, powers and remedies provided in this Deed
Poll are cumulative with and will not merge with the rights, powers or remedies
of the Commonwealth, Telstra or Promisor arising other than under this Deed
Poll.
6.7.2 The Promisor acknowledges that the failure by the
Commonwealth, Telstra or Promisor to exercise, or a delay by a one of them in
exercising, any of its rights, powers or remedies under this Deed Poll, does
not preclude the exercise of that right, power or remedy.
Executed
as a deed POLL
Signed,
Sealed and delivered )
by …………………… )
at …………………… )
on …………………… )
in the
presence of:
………………………
(Witness’ signature)
………………………
(Witness’ name)
…………………….
(WITNESS’ ADDRESS)
Schedule 1 specified contestable
universal service areas
For the purposes of the
definition of Purpose of Disclosure in clause 1.1.1, the Promisor
specifies the following contestable universal service area or areas as an area
or areas in relation to which the Promisor is interested in gaining approval as
a CUSP and/or operating as a CUSP and in relation to which the Promisor is
requesting Confidential Information for the Purpose of Disclosure.
The specified contestable universal service areas are:
1 The Promisor should list the contestable universal
service area or areas for which it is seeking information. The areas are
identified in the Universal Service Area Determinations (No. 1) 2001 and
the Universal Service Areas Determination (No. 1) 2001 (Amendment No. 1 of
2001).
Schedule 2 CONTACT DETAILS FOR NOTICES
1 Commonwealth
Department of Communications, Information
Technology, and the Arts
GPO Box 2154
Canberra ACT 2601
Attention: Mr Philip Mason
Telephone: (02) 6271 1579
Facsimile: (02) 6271 1886
Email: philip.mason@dcita.gov.au
2 Telstra
Telstra Corporation Limited
Locked Bag 6794
SYDNEY NSW 1100
Attention: Ms Dianne MacLean
Telephone: (02) 8293 8304
Facsimile: (02) 9267 0343
Email: Dianne.M.
MacLean@team.telstra.com
3 Promisor
CUSP’s name
[Postal address]
Attention:
Telephone:
Facsimile:
Email:
[Promisor
should provide information of the kind specified for other persons mentioned in
this schedule.]
4 Australian
Communications Authority
Australian Communications Authority
PO Box 13112
LAW COURTS PO
MELBOURNE VIC 8010
Attention: Mr Bruce Matthews
Telephone: (03) 9963 6712
Facsimile: (03) 9963 6983
Email: bruce.matthews@aca.gov.au
Schedule
3 deed poll for authorised persons
This Deed poll is made on the [date] day of [month]
[year] by the person who is signatory of this Deed Poll (the ‘Covenantor’).
RECITALS
A. The Commonwealth of Australia (the ‘Commonwealth’)
in accordance with Recital A of the Deed Poll has determined to trial
arrangements for the competitive supply of services in fulfilment of the
universal service obligation (USO) in two pilot areas in Victoria and South
Australia and New South Wales and Queensland (‘the USO Contestability Pilots’).
B. Under the USO Contestability Pilots carriers and
carriage service providers may apply for approval by the Australian
Communications Authority as competing universal service providers.
C. To assist carriers and carriage service providers to
decide whether to seek approval as a competing universal service provider
and/or to operate as a competing universal service provider the Commonwealth
has put in place the Carrier Licence Conditions (Telstra Corporation
Limited) Declaration 1997 (Amendment No. 1 of 2001) to provide access to
certain information held by Telstra Corporation Limited.
D. With a view to accessing information under the Carrier
Licence Conditions (Telstra Corporation Limited) Declaration 1997 (Amendment
No. 1 of 2001) [name of CUSP or aspirant CUSP] (‘the Principal’)
signed a Confidentiality Deed Poll on the [date] day of [month] [year] (the ‘Main Deed Poll’).
The Main Deed Poll requires that the Principal:
·
gives confidentiality undertakings in order to receive
Confidential Information; and
·
obtains confidentiality undertakings in the form of this Deed
Poll by all persons to whom it proposes to give any or all of the Confidential
Information.
E. In accordance with clause 3.1.3 of the Main Deed
Poll, upon execution of this Deed Poll and notification to the ACA the person
is then designated an Authorised Person.
F. The Covenantor is a person referred to in Recital E,
and who by this Deed Poll now makes the several promises, undertakings,
acknowledgments and warranties contained in this Deed Poll for the benefit of
the Commonwealth and Telstra.
OPERATIVE
PART
Definitions
and Interpretation
1. In this Deed Poll unless the context requires
otherwise all terms have the same definition as in the Main Deed.
General
Undertakings
2. The Covenantor warrants that he, she or it (as the
case may be) has full legal capacity to provide the several promises,
undertakings, acknowledgments and warranties contained in this Deed Poll.
3. If the Covenantor is not a natural person, the
Covenantor warrants that its execution of this Deed Poll is in the proper form
and that it believes and intends that it will be bound by its provisions.
4. The Covenantor acknowledges that the Confidential Information
provided to the Covenantor is confidential to Telstra, and that the improper
use or disclosure of that Confidential Information may cause loss or damage to
either or both of the Commonwealth and Telstra.
5. The Covenantor undertakes to use the Confidential
Information only for the purpose of assisting the Principal in respect of whom
the Covenantor is an employee, board member, adviser, consultant, agent or
financier, or an employee of an adviser, consultant, agent or financier, for
the sole purpose of assisting the Principal to decide whether to enter, or
operating in as a CUSP, a contestable universal service area it has specified
in Schedule 1 to the Main Deed Poll and/or to inform itself about operating as
a CUSP in that area if approved as a CUSP (‘the Purpose of Disclosure’).
6. Subject to clause 8, the Covenantor undertakes not
to disclose or publish, nor allow to be disclosed or published, the
Confidential Information to any person other Telstra or the Principal.
7. Subject to clause 8, the Covenantor undertakes not
to copy or transcribe, nor allow to be copied or transcribed, the Confidential
Information except where strictly necessary for the purpose of assisting the
Principal solely for the Purpose of Disclosure.
8. The Covenantor may disclose the Confidential
Information to another person but only if that person is an Authorised Person
and it is necessary to disclose the Confidential Information for the purposes
of assisting the Principal solely for the Purpose of Disclosure.
9. The Covenantor undertakes to give to the
Commonwealth all of the Confidential Information (and all copies of it) in the
Covenantor’s control or possession upon a request by the Commonwealth, whether
or not at the request of Telstra, for its return, or upon the cessation of the
Principal’s rights to access the information for the Purpose of Disclosure.
10. The Covenantor undertakes to ensure that the
Confidential Information is securely stored, and is not stored in any manner or
form which the ACA, at the reasonable request of Telstra, has communicated to
the Covenantor or the Principal that it is reasonably not to be stored in.
11. The Covenantor undertakes to comply with any
reasonable direction that the Commonwealth or Telstra may communicate to the
Covenantor or the Principal in relation to the Confidential Information
including directions as to the safe‑keeping and storage of the
Confidential Information.
12. The Covenantor undertakes to use the Confidential
Information only to assist the Principal and solely for the Purpose of
Disclosure.
13. The Covenantor undertakes that if he, she or it (as
the case may be) is compelled to disclose the Confidential Information, or
otherwise proposes to disclose the Confidential Information because of a law or
an order of a court or tribunal, the Covenantor:
(a) will provide prompt notice to the Principal
of the same in order that the Commonwealth and/or Telstra may seek a protective
order, exemption from production or other appropriate remedy;
(b) will only disclose the Confidential
Information which there is a legal compulsion to disclose; and
(c) will provide the Commonwealth and Telstra
with all reasonable assistance and co‑operation which they consider
necessary to prevent the disclosure of the Confidential Information.
14. The Covenantor warrants that he, she or it (as the
case may be) is not aware of any conflict of interest, existing or potential,
which will or may affect the performance of the Covenantor’s obligations under
this Deed Poll.
15. The Covenantor promises that he, she or it (as the
case may be) will notify the Principal immediately on becoming aware of any
conflict of interest or potential conflict of interest which affects or may
affect the performance of the Covenantor’s obligations under this Deed Poll and
will take all reasonable steps to prevent that conflict of interest from
occurring or continuing.
16. The Covenantor promises that he, she or it (as the
case may be) will notify the Principal immediately any warranty contained in
this Deed Poll ceases to be true and immediately any promise, acknowledgment or
undertaking contained in this deed is breached or is not performed as and when
required by this Deed Poll to be performed.
Miscellaneous
Provisions
17. The provisions of this Deed Poll will be construed
and enforced in accordance with the following principles:
(a) ‘person’ includes a body corporate, an
unincorporated association, a firm or partnership (whether limited or
unlimited) and an authority or organisation, notwithstanding that any of them
may not be legal persons;
(b) ‘employee’ will be taken to include a
reference to a director and to an officer;
(c) a reference to the publishing of information
will be taken to include a reference to the dissemination or communication of
that information in any manner or form whatsoever;
(d) a reference to the copying or storage of
information will be taken to refer to any form of copying or storage, including
copying or storage in electronic, electronically assisted, or magnetic form or
microform;
(e) a reference to Confidential Information will
include a reference to the whole or part of the Information, and will extend to
include the intellectual property in the Confidential Information;
(f) this Deed Poll will be construed and take
effect in accordance with the laws of the Australian Capital Territory;
(g) the warranties, promises, acknowledgments
and undertakings given in this deed are continuing; and
(h) if there is an inconsistency between this
Deed Poll and the Main Deed Poll, then the provisions of the Main Deed Poll
will prevail to the extent of the inconsistency and as if the Covenantor were
the signatory to the Main Deed Poll in place of the Principal.
EXECUTED AS A DEED POLL
Signed, Sealed and delivered )
by …………………… )
at …………………… )
on …………………… )
in the presence of:
………………………
(Witness’ signature)
………………………
(Witness’ name)
………………………
(Witness’ address)
Schedule
Item 1
(date)
Item 2
(name and address)
Schedule
4 Objectives to be addressed in the
licensee’s priority assistance policy under subclause 19 (2)
Definitions
(1) For the purposes of this Schedule, site
means:
(a) land; or
(b) a building, or other structure, on land.
Defining
priority customers
The priority assistance policy must satisfy the
following objectives:
(2) The objective that the priority assistance policy
must include objective eligibility criteria for identifying customers with a
diagnosed life‑threatening medical condition that have a high risk of
rapid deterioration to a life‑threatening situation and where access to a
telephone would assist to remedy the life‑threatening situation.
(3) The objective that in developing the eligibility
criteria under item (2) advice is sought from appropriate medical experts and
the Chief Medical Officer of the Commonwealth Department of Health and Ageing,
and consultation is undertaken with community health organisations.
Priority
customer applications and assessments
The priority assistance policy must satisfy the
following objective:
(4) The objective that there be appropriate processes
for managing assessment of customers seeking priority assistance, and that
these processes must be transparent and straightforward, and include:
(a) the process by which customers can apply for
priority assistance; and
(b) the process by which staff might identify
customers who may be eligible for priority assistance and invite an
application; and
(c) the process by which priority customers are
advised of their rights and obligations associated with priority assistance;
and
(d) the timeframe within which applications for
priority assistance will be assessed; and
(e) the requirement that assessment of priority
assistance applications are carried out by appropriately skilled staff; and
(f) the requirement that privacy requirements
are fully addressed; and
(g) the process by which a decision to reject an
application for priority assistance by the licensee may be reviewed at a higher
level within the licensee’s organisation; and
(h) the process by which a decision to reject an
application for priority assistance from a higher level within the licensee’s
organisation may be investigated by the Telecommunications Industry Ombudsman;
and
(i) the requirement that customers are informed
of their rights to seek a review of a decision by the licensee to reject an
application for priority assistance both within the licensee’s organisation and
to the Telecommunications Industry Ombudsman; and
(j) the requirement that decisions of the
Telecommunications Industry Ombudsman in relation to the eligibility of a
customer for priority assistance will be binding upon the licensee; and
(k) the process by which the ACA may conduct
audits of the application and assessment process for priority assistance; and
(l) the processes for carrying out reassessment
of priority customers, of updating the status of priority customers and of
cessation of priority assistance.
Post
facto ratification of priority customers
The priority assistance policy must satisfy the
following objective:
(5) The objective that:
(a) customers who claim or represent themselves
as likely to qualify for priority assistance will be provided with priority
assistance upon their request, subject to later ratification through an
approved assessment process; and
(b) customers who receive priority assistance
under paragraph (a) who subsequently do not meet the eligibility criteria
described in the licensee’s priority assistance policy may be charged, at the
licensee’s discretion, a fee that reasonably reflects the costs of providing priority
service, provided those customers have been fully informed at the time of their
request of the eligibility criteria and that they may be charged a fee.
Priority
assistance — Connections
The priority assistance policy must satisfy the
following objectives:
(6) The objective that where connection of a STS has
been requested at a residence of a priority customer where there are no
existing STSs (whether supplied by the licensee or another provider) that
connection should attract the highest level of service practicably available at
the time.
(7) The objective that the licensee must set maximum
timeframes for connection of a STS at a residence of a priority customer where
there are no existing STSs (whether supplied by the licensee or another provider)
which are less than the maximum connection timeframes for an equivalent non‑priority
customer referred to in the licensee’s USO standard marketing plan.
(8) The objective that, for the purposes of item (7),
unless circumstances make it unreasonable, the maximum connection timeframes
for priority customers must be:
(a) if the site at which the connection has been
requested is within a standard zone and within an urban centre, locality or
other recognised community grouping with a population greater than or equal to
200 people — less than 24 hours or within such longer period as is
specified by the priority customer concerned; and
(b) in all other circumstances — less than
48 hours or within such longer period as is specified by the priority customer concerned.
Note 1 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 — Australian Standard Geographical Classification (ASGC) Urban
Centres/Localities, 1996 Cat. No. 2909.0.
Note 2 Items (13) and (14) below provide
for the supply of interim priority services to priority customers where
connection of the first STS or fault repair of an inoperative STS cannot be
achieved within 24 hours (48 hours for customers in remote areas) or such
longer period as is specified by the priority customer concerned.
Note 3 For the purposes of this
objective, standard zone has the same meaning as in section 108
of the Consumer Protection Act.
Priority
assistance — Service reliability
The priority assistance policy must satisfy the
following objective:
(9) The objective that priority customers are to receive
enhanced service reliability and fault rectification, including but not limited
to:
(a) where the STS of a priority customer has 2
or more reported faults which make the STS inoperative in a 3 month period of
time during which the customer is a priority customer, the licensee must cause
the service to be thoroughly tested and use its best endeavours to ensure any
underlying network causes of faults are identified and, if necessary, fixed as
soon as practicable to a high level of reliability; and
(b) where the licensee supplies multiple services
to a priority customer it must use its best endeavours to manage the provision
of those services to maximise the reliability of at least one service.
Note Items (13) and (14) below provide
for the supply of interim priority services to priority customers where
connection of the first STS or fault repair of an inoperative STS cannot be
achieved within 24 hours (48 hours for customers in remote areas) or such
longer period as is specified by the priority customer concerned.
Priority
assistance — Fault Rectification
The priority assistance policy must satisfy the
following objectives:
(10) The objective that, where all STSs supplied to and
solely for use at the place of residence of a priority customer (whether supplied
by the licensee or another provider) are inoperative, fault rectification, to
make operative at least one STS, should attract the highest level of service
practicably available at that time.
(11) The objective, that
for the purposes of item (10), fault rectification includes, but is not limited
to:
(a) priority management and handling of faults
from the time of the fault report through to actual response and subsequent
rectification of the fault, including 24 hour service coverage, 7 days per
week, and associated support system targets at the highest service levels
practicably available at that time; and
(b) the setting of maximum rectification times
for priority customers which are less than the maximum rectification times for
equivalent non‑priority customers as set out in the licensee’s USO
standard marketing plan.
(12) The objective that for the purposes of subitem (11)
(b), unless circumstances make it unreasonable, the maximum rectification
period for priority customers must be:
(a) if the site at which the fault has occurred
is within a standard zone and within an urban centre, locality or other
recognised community grouping with a population equal to or greater than 200
people — less than 24 hours or within such longer period as is specified
by the priority customer concerned; and
(b) in all other circumstances — less than
48 hours or within such longer period as is specified by the priority customer
concerned.
Note 1 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 —
Australian Standard Geographical Classification (ASGC) Urban Centres/Localities,
1996 Cat. No. 2909.0.
Note 2 Items (13) and (14) below provide
for the supply of interim priority services to priority customers where
connection of the first STS or fault repair of an inoperative STS cannot be
achieved within 24 hours (48 hours for customers in remote areas) or such
longer period as is specified by the priority customer concerned.
Note 3 For the purposes of this
objective, standard zone has the same meaning as in section 108
of the Consumer Protection Act.
Note 4 24 x 7 service coverage expressly
requires that priority customers will receive fault rectification after hours,
on weekends and public holidays.
Priority
assistance — Interim Priority Service
The priority assistance policy must satisfy the
following objectives:
New
connections
(13) The objective that in the circumstances where a
priority customer has requested the connection of a STS at a residence where
there are no existing STSs (whether supplied by the licensee or another
provider) and that request is received within normal working hours:
(a) where the site at which the connection has
been requested is within a standard zone and within an urban centre, locality
or other recognised community grouping with a population equal to or greater
than 200 people and the service cannot be provided within 24 hours of the
priority customer’s request or within such longer period as the priority
customer agrees, the licensee must offer the priority customer an interim
priority service; and
(i) where the priority customer
accepts the offer at the time the offer is made — provide an interim
priority service within 24 hours of the priority customer’s request, unless
otherwise agreed with the priority customer, or unless prevented by
circumstances beyond its control; and
(ii) where the priority customer
accepts the offer at a later time after the offer is made — provide an
interim priority service within a period that is the sum of 24 hours of the
priority customer’s request and the number of hours that have elapsed between
the time at which the offer is made and the acceptance of the offer, unless
otherwise agreed with the priority customer, or unless prevented by
circumstances beyond its control; and
(iii) where prevented from meeting the
timeframe under subparagraph (i) or (ii) by circumstances beyond its control,
to provide an interim priority service as soon as practicable; and
(b) where the site at which the connection has
been requested is other than as described in paragraph (a) and the service
cannot be provided within 48 hours of the priority customer’s request or within
such longer period as the priority customer agrees, the licensee must offer the
priority customer an interim priority service; and
(i) where the priority customer
accepts the offer at the time the offer is made — provide an interim
priority service within 48 hours of the priority customer’s request, unless
otherwise agreed with the priority customer, or unless prevented by
circumstances beyond its control; and
(ii) where the priority customer accepts
the offer at a later time after the offer is made — provide an interim
priority service within a period that is the sum of 48 hours of the priority
customer’s request and the number of hours that have elapsed between the time
at which the offer is made and the acceptance of the offer, unless otherwise
agreed with the priority customer, or unless prevented by circumstances beyond
its control; and
(iii) where prevented from meeting the
timeframe under subparagraph (i) or (ii) by circumstances beyond its control,
to provide an interim priority service as soon as practicable; and
(c) unless the priority customer otherwise
agrees, to continue to provide the priority customer with the interim priority
service until such time as the first STS has been supplied or until the
priority customer is entitled to an interim service under the licensee’s USO
standard marketing plan.
Note 1 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 —
Australian Standard Geographical Classification (ASGC) Urban
Centres/Localities, 1996 Cat. No. 2909.0.
Note 2 For the purposes of this
objective, standard zone has the same meaning as in section 108
of the Consumer Protection Act.
Note 3 An
interim priority service is to be supplied to a priority customer on the terms
outlined in the definition of interim priority service as an interim measure
before receiving connection of the STS or supply of an interim service in
accordance with the licensee’s USO Standard Marketing Plan.
Note 4 The reference to ‘circumstances
beyond the licensee’s control’ in this item recognises that there may be a
small minority of occasions where, despite the licensee having establishing
appropriate processes and systems, the licensee’s or its contractor’s highest
priority delivery mechanisms may not allow interim priority services to be delivered
to individual priority customers within the maximum timeframes.
Service
faults
(14) The objective that in the circumstances where the
licensee receives a report of a fault in relation to an inoperative STS of a
priority customer, and where all STSs supplied to and solely for use at the
place of residence of the priority customer (whether supplied by the licensee
or another provider) are inoperative:
(a) where the site at which the inoperative STS
is located is within a standard zone and within an urban centre, locality or
recognised community grouping with a population equal to or greater than 200
people and at least one service cannot be rectified within 24 hours after the
licensee receives the report of the fault or within such longer period as the
priority customer requests, the licensee must offer the priority customer an
interim priority service; and
(i) where the priority customer
accepts the offer at the time the offer is made — provide an interim
priority service within 24 hours of the priority customer’s report, unless
otherwise agreed with the priority customer, or unless prevented by
circumstances beyond its control; and
(ii) where the priority customer
accepts the offer at a later time after the offer is made — provide an
interim priority service within a period that is the sum of 24 hours of the
priority customer’s report and the number of hours that have elapsed between
the time at which the offer is made and the acceptance of the offer, unless
otherwise agreed with the priority customer, or unless prevented by
circumstances beyond its control; and
(iii) where the licensee is prevented
from meeting the timeframe under subparagraph (i) or (ii) by circumstances
beyond its control, to provide the interim priority service as soon as practicable;
and
(b) where the site at which the inoperative STS
is located is other than as described in paragraph (a) and the fault cannot be
rectified within 48 hours after the licensee receives the report of the fault
or within such longer period as the priority customer requests, the licensee
must offer the priority customer an interim priority service; and
(i) where
the priority customer accepts the offer at the time the offer is made —
provide an interim priority service within 48 hours of the priority customer’s
report, unless otherwise agreed with the priority customer, or unless prevented
by circumstances beyond its control; and
(ii) where the priority customer
accepts the offer at a later time after the offer is made — provide an
interim priority service within a period that is the sum of 48 hours of the
priority customer’s report and the number of hours that have elapsed between
the time at which the offer is made and the acceptance of the offer, unless
otherwise agreed with the priority customer, or unless prevented by
circumstances beyond its control; and
(iii) where the licensee is prevented
from meeting the timeframe under subparagraph (i) or (ii) by circumstances
beyond its control, to provide the interim priority service as soon as
practicable; and
(c) unless the priority customer otherwise
agrees, to continue to provide the priority customer with the interim priority
service during the period which all the STSs, supplied to and solely for use at
the place of residence of the priority customer (whether supplied by the
licensee or another provider), remain inoperative or until the priority
customer is entitled to an interim service under the licensee’s approved USO
standard marketing plan.
Note 1 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 —
Australian Standard Geographical Classification (ASGC) Urban
Centres/Localities, 1996 Cat. No. 2909.0.
Note 2 For the purposes of this
objective, standard zone has the same meaning as in section 108
of the Consumer Protection Act.
Note 3 An interim priority service is to
be supplied to a priority customer on the terms outlined in the definition of
interim priority service as an interim measure before receiving connection of
the STS or supply of an interim service in accordance with the licensee’s USO
Standard Marketing Plan.
Note 4 The reference to ‘circumstances
beyond the licensee’s control’ in this item recognises that there may be a
small minority of occasions where, despite the licensee having establishing
appropriate processes and systems, the licensee’s or its contractor’s highest priority
delivery mechanisms may not allow interim priority services to be delivered to
individual priority customers within the maximum timeframes.
(15) The objective that the licensee may offer a priority
customer the option of an alternative service in fulfilment of its obligations
to offer an interim priority service, for the purposes of items (13) and (14).
(16) The objective that if the licensee offers a priority
customer a choice between an interim priority service and an alternative
service, it must provide the priority customer with sufficient information
about:
(a) the functionality of each service; and
(b) the terms and
conditions of supply of each service;
to enable the priority customer to make an informed judgement about
the relative merits of each service.
(17) The objective that where a priority customer accepts
an offer of an alternative service but subsequently requests the licensee for
an interim priority service, the licensee will provide an interim priority
service to the priority customer instead of an alternative service as soon as
practicable after receiving the request.
Priority assistance — Reducing
risks and impact of disconnection
The priority assistance policy must satisfy the
following objectives:
(18) The objective that where a priority customer is
repaying an overdue bill, as agreed with the licensee, then that customer will
have continued access to their STS supplied by the licensee.
(19) The objective that where a priority customer’s access
to their STS is subject to the credit management arrangements of the licensee
(including disconnection) the customer will always, at a minimum, be provided
with access to soft dial tone. For the purposes of this item, soft dial tone
includes access to the ‘000’ emergency number, Telstra Customer Service and
Telstra Fault Centre.
Priority assistance — To be
provided in exceptional circumstances
The priority assistance policy must satisfy the
following objectives:
(20) Where the licensee’s ability to supply and repair STS
is affected by circumstances beyond its control, as set out in section 2.4.4 of
the licensee’s approved USO standard marketing plan, the licensee must:
(a) use its best endeavours to continue to meet
the timeframes for service connection and fault repair for priority customers
which arise under the Carrier Licence Conditions (Telstra Corporation
Limited) Declaration 1997 (Amendment No. 1 of 2002); and
(b) in the circumstances where the licensee
cannot meet the timeframes for service connection and fault repair for priority
customers which arise under this licence condition it must:
(i) unless the circumstances are so
extreme that the licensee is prevented from accessing a priority customer’s
residence by reason of natural disaster, a Commonwealth, State or Territory
law, risk to the personal health and safety of its staff, or other like extreme
circumstance, offer to provide the priority customer with an interim priority
service; and
(ii) where
an interim priority service cannot be provided under subparagraph (i), maintain
records identifying each priority customer affected and the extreme
circumstances which have prevented the supply of an interim priority service,
and report to the ACA quarterly providing an explanation of the circumstances,
including location, time and duration, where the licensee could not meet the
timeframes for service connection and fault repair under this licence condition
or offer an interim priority service under subparagraph (i).
Priority assistance —
public awareness
The priority
assistance policy must satisfy the following objectives:
(21) The objective that the priority assistance policy
must include a detailed communication strategy for providing information to
customers regarding priority assistance arrangements, which must include:
(a) provision of information to all existing
customers who are seeking priority assistance because of a circumstance that
broadly fits within the eligibility criteria; and
(b) provision of information as soon as
practicable after the licensee receives a request for connection to an STS; and
(c) provision of regular information, at least
once in each 2 year period, to all existing customers via bill inserts or
messages on the bill with the first billing communication to be included in the
first bill cycle after implementation of the priority assistance policy; and
(d) ongoing offers to provide promotional
material on the priority assistance arrangements to relevant places and
organisations, such as doctors’ surgeries, hospitals and health centres and
other groups containing individuals likely to be eligible for priority
assistance; and
(e) prominent references to priority assistance
arrangements on the licensee’s website, including a copy of the current version
of the licensee’s priority assistance policy; and
(f) prominent reference to priority assistance
arrangements in the licensee’s standard form of agreement and its summary of
its standard form of agreement; and
(g) prominent promotion of priority assistance
arrangements in the White Pages.
(22) The objective that the communications strategy under
item 21 should deliver the following where appropriate:
(a) the eligibility criteria for priority
assistance and the process by which customers can apply for priority status
including the appeals processes; and
(b) details of the obligations of the licensee to
provide priority assistance, including but not limited to interim priority
services; and
(c) a statement that the provision of a second
STS does not guarantee service continuity; and
(d) the provision of advice to all priority
customers who report a fault in relation to an STS on the expected timeframe
for repair and of the possibility of using other services which could provide
back‑up communications — eg. mobile phones or payphones; and
(e) provision of relevant information on any
limitations of a priority customer’s current or new STS when the licensee is
made aware that the STS is being relied upon as a back‑up service.