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Determinations/Communications as made
This Determination enhances compliance of premium SMS and MMS services with rules in the Mobile Premium Services Code and preventing content service providers from causing significant detriment including financial detriment.
Administered by: Communications and the Arts
Made 28 Jul 2010
Registered 04 Aug 2010
Tabled HR 28 Sep 2010
Tabled Senate 28 Sep 2010

The AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY makes this Determination under section 99 of the Telecommunications Act 1997.

Dated 28th July 2010

Chris Chapman
[signed]
Member

Brendan Byrne
[signed]
Member
/General Manager

 


Contents

Part 1                    Preliminary

                      1.1     Name of Determination                                                                         3

                      1.2     Commencement                                                                                  3

                      1.3     Definitions                                                                                           3

                      1.4     Objects                                                                                              4

Part 2                    The do not contract rule

                      2.1     Content service provider contracts                                                         5

Part 3                    Do not bill orders

                      3.1     Application of Part 3                                                                            6

                      3.2     Contract to contain do not bill clause                                                     7

                      3.3     Prohibition on collecting charges                                                           7

                      3.4     The ACMA may make, suspend, vary or revoke a do not bill order in relation to SMS and MMS services                                                                                              8

                      3.5     Criteria for making do not bill order                                                        8

                      3.6     Information on do not bill order                                                              9

                      3.7     Notification of do not bill order                                                             10

                      3.8     Compliance with do not bill order                                                         10

                      3.9     The ACMA may make, vary or revoke an interim do not bill order in relation to SMS and MMS services                                                                                            10

                    3.10     Criteria for making interim do not bill order                                            11

                    3.11     Information on interim do not bill order                                                  11

                    3.12     Notification of interim do not bill order                                                  11

                    3.13     Compliance with interim do not bill order                                              12

                    3.14     Register of do not bill orders and interim do not bill orders                     12

 

 


Part 1                 Preliminary

  

1.1           Name of Determination

                This Determination is the Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 2).

Note   This Determination is made in accordance with subregulation 3.12 (1) of the Telecommunications Regulations 2001 and section 4 of the Premium Service Determination 2004 (No. 1).

1.2           Commencement

                This Determination commences on the day after it is registered.

1.3           Definitions

                In this Determination:

Act means the Telecommunications Act 1997.

associate means:

                (a)    a director or secretary of a content service provider; or

               (b)    a related body corporate of a content service provider; or

                (c)    a director or secretary of a related body corporate of a content service provider; or

               (d)    a business partner of a content service provider; or

                (e)    an individual who:

                          (i)    controls at least 15% of the voting power in; or

                         (ii)    hold at least 15 of the issued shares of;

                        a content service provider.

business day, for a mobile carriage service provider, means a day other than a Saturday, Sunday or a public holiday in the State or Territory in which the provider conducts its business.

Communication Alliance means Communication Alliance Ltd (A.C.N 078 026 507).

customer means a person who has an agreement with a mobile carriage service provider for the supply of a public mobile telecommunications service from the mobile carriage service provider to the person or another person.

do not bill order means an order made under section 3.4.

eligible prefix means a prefix of 191, 193, 194, 195, 196, 197 or 199.

interim do not bill order means an order made under section 3.9.

mobile carriage service provider means:

                (a)    a carriage service provider that supplies a customer with a public mobile telecommunications service; or

               (b)    a carriage service intermediary that arranges for the supply by a carriage service provider to a customer of a public mobile telecommunications service.

mobile network operator means an operator that:

                (a)    is the recipient of an allocation of numbers for use in connection with a digital mobile service under Telecommunications Numbering Plan 1997; and

               (b)    holds a carrier licence under Part 3 of the Act; and

                (c)    is a member of the Telecommunications Industry Ombudsman scheme by reason of being an eligible carriage service provider under Part 6 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

MPS Code means the Mobile Premium Services Industry Code C637:2009 published by Communications Alliance, as in force from time to time.

premium SMS and MMS services means:

                (a)    carriage services supplied by way of a call to or from a number with an eligible prefix; or

               (b)    content services supplied by way of a call to or from a number with an eligible prefix.

related body corporate has the same meaning as in the Corporations Act 2001.

Telecommunications Industry Ombudsman scheme has the meaning given by section 128 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

Note   The following terms are defined in the Act:

·     carriage service

·     carriage service provider

·     content service provider

·     public mobile telecommunications service.

1.4           Objects

         (1)   The object of Part 2 is to protect the interests of customers and other consumers in relation to the supply of premium SMS and MMS services by enhancing compliance with requirements of the MPS Code.

         (2)   The object of Part 3 is to protect the interests of customers and other consumers in relation to the supply of premium SMS and MMS services by preventing content service providers from causing significant detriment, including financial detriment, to customers or other consumers of premium SMS and MMS services.

Part 2                 The do not contract rule

  

2.1           Content service provider contracts

         (1)   A content service provider must not enter into a contract with another content service provider for the supply of premium SMS and MMS services to a customer unless the other content service provider is listed in the register maintained by Communication Alliance under the MPS Code.

         (2)   A mobile carriage service provider must not enter into a contract with a content service provider for the supply of premium SMS and MMS services to a customer unless the content service provider is listed in the register maintained by Communication Alliance under the MPS Code.

Part 3                 Do not bill orders

  

3.1           Application of Part 3

         (1)   Sections 3.2 to 3.14 apply to a mobile carriage service provider in relation to a contract that the provider enters into:

                (a)    with a customer for the supply of a public mobile telecommunications service used to supply premium SMS and MMS services to the customer; or

               (b)    with a content service provider for the supply of carriage services used to supply premium SMS and MMS services to a customer.

         (2)   Nothing in this Part affects a mobile carriage service provider in relation to:

                (a)    a contract mentioned in subsection (1) that was entered into before the commencement of this Determination; or

               (b)    if:

                          (i)    a contract described in paragraph (1) (b) was entered into to give effect to a contract described in paragraph (1) (a); and

                         (ii)    1 of the contracts was entered into before the commencement of this Determination;

                        either of the contracts.

         (3)   Despite subsection (2), if:

                (a)    a contract is renewed on or after the commencement of this Determination; and

               (b)    paragraph (2) (b) would not apply in relation to the renewed contract; and

                (c)    sections 3.2 to 3.14 do not already apply to the mobile carriage service in relation to that contract;

sections 3.2 to 3.14 apply to the mobile carriage service provider in relation to that contract on and after the day on which the renewal takes effect.

         (4)   Despite subsection (2), if:

                (a)    a contract is varied on or after the commencement of this Determination; and

               (b)    paragraph (2) (b) would not apply in relation to the varied contract; and

                (c)    sections 3.2 to 3.14 do not already apply to the mobile carriage service provider in relation to that contract;

sections 3.2 to 3.14 apply to the mobile carriage service provider in relation to that contract on and after the day on which the variation takes effect.

          (5)          Despite subsections (1) to (4), this Part does not apply to a mobile carriage service provider to the extent that the operation of this Part would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph of the Constitution).

3.2           Contract to contain do not bill clause

         (1)   A contract between a mobile carriage service provider and a customer for the supply of a public mobile telecommunications service used to supply premium SMS and MMS services to the customer must include a provision to the effect that the mobile carriage service provider must not:

                (a)    bill the customer for the supply of premium SMS and MMS services that are the subject of a do not bill order or an interim do not bill order; or

               (b)    collect charges from the customer that relate to premium SMS and MMS services that are the subject of a do not bill order or an interim do not bill order;

if a do not bill order or an interim do not bill order is in force in relation to the services.

         (2)   A contract between the mobile carriage service provider and a content service provider for the supply of a carriage service used to supply premium SMS and MMS services to a customer must include a provision that the mobile carriage service provider must not:

                 (a)   bill the customer for the supply of premium SMS and MMS services that are the subject of a do not bill order or an interim do not bill order; or

                 (b)   collect charges from the customer that relate to premium SMS and MMS services that are the subject of a do not bill order or an interim do not bill order;

if a do not bill order or an interim do not bill order is in force in relation to the services.

3.3           Prohibition on collecting charges

         (1)   If a do not bill order or an interim do not bill order is in force in relation to the supply of specified premium SMS and MMS services to a customer, a mobile carriage service provider must not at any time:

                (a)    bill the customer for the supply of those premium SMS and MMS services that are supplied to the customer during the period in which the do not bill order or interim do not bill order is in force; or

               (b)    collect charges from the customer that relate to those premium SMS and MMS services that are supplied to the customer during the period in which the do not bill order or interim do not bill order is in force.

Note   During the period in which a do not bill order or an interim do not bill order is in force, a mobile carriage service provider may bill a customer for the supply of SMS and MMS services made prior to the commencement of the order.

         (2)   In this section:

collect charges includes debiting payments from a customer’s pre-paid public mobile telecommunications service account.

pre-paid public mobile telecommunications service means a public mobile telecommunications service that is supplied on terms requiring that any payment that may be required to use the service is made before the service is used.

3.4           The ACMA may make, suspend, vary or revoke a do not bill order in relation to SMS and MMS services

         (1)   The ACMA may make an order requiring all mobile carriage service providers to:

                (a)    cease billing customers for the supply of specified premium SMS and MMS services of a specified content service provider; and

               (b)    cease collecting charges for the supply of specified premium SMS and MMS services of a specified content service provider.

Note   See subsection 99 (5) of the Act. The order is a do not bill order.

         (2)   The ACMA must not make a do not bill order during the period of 90 days starting on the day after this Determination commences.

         (3)   The ACMA may suspend, vary or revoke a do not bill order.

Note   A decision to make, suspend, vary or revoke a do not bill order is a reviewable decision under section 555 of the Act.

         (4)   The duration of a do not bill order must not exceed 3 years.

3.5           Criteria for making do not bill order

         (1)   The ACMA may make a do not bill order if it is satisfied that a content service provider has:

                (a)    breached the MPS Code; and

               (b)    acted, in relation to the supply of premium SMS and MMS services, in a way that is significantly detrimental to the interests of customers or other consumers, or a class or classes of customers or other consumers.

         (2)   In determining whether a content service provider has acted in a way that is significantly detrimental to the interests of customers or other consumers, or a class or classes of customers or other consumers, the ACMA may have regard to:

                (a)    the number and seriousness of any breaches of which it is aware by the content service provider or an associate of the content service provider, of the MPS Code or any other law, rule or code, that has the protection of consumers as 1 of its objects, including:

                          (i)    the Trade Practices Act 1974; and

                         (ii)    the Spam Act 2003; and

                         (iii)    a law of a State or Territory about fair trading; and

                        (iv)    the Telephone Information Service Standards Council Code of Practice as in force from time to time; and

               (b)    the compliance history of the content service provider or an associate of the content service provider in relation to the supply of premium SMS and MMS services under the Act, the MPS Code and any other law, rule or code mentioned in paragraph (a); and

                (c)    any other matter that the ACMA considers relevant.

         (3)   In this section:

breached means having acted in a way that results in:

                (a)    an adverse finding by a Commonwealth, State or Territory court; or

               (b)    an adverse administrative finding by a Commonwealth, State or Territory Tribunal, government department or agency; or

                (c)    an adverse determination about compliance with a rule, made by a person in whom power has been vested to make a binding determination about compliance with that rule.

3.6           Information on do not bill order

         (1)   A do not bill order must contain the following information:

                (a)    the identity of the content service provider to which the order relates;

               (b)    details of the premium SMS and MMS services to which the order relates;

                (c)    the date on which the order comes into force;

               (d)    the period for which the order is applicable.

         (2)   The details of the premium SMS and MMS services must consist of a list of identifying numbers with eligible prefixes and may include a description of the premium SMS and MMS services.

         (3)   The date on which a do not bill order comes into force must not be before the date on which the order is added to the register under subsection 3.14 (3).

3.7           Notification of do not bill order

         (1)   If the ACMA makes, suspends, varies or revokes a do not bill order in relation to a content service provider, the ACMA must:

                (a)    do all that is reasonably practicable to notify the content service provider, in writing, of the making, suspension, variation or revocation of the order; and

               (b)    include in the notification the reasons for the order.

         (2)   The ACMA must notify all mobile network operators of an order made, suspended, varied or revoked under section 3.4.

3.8           Compliance with do not bill order

                A mobile carriage service provider must comply with a do not bill order, or a variation to a do not bill order, within 1 business day after the day on which the order or variation comes into force.

3.9           The ACMA may make, vary or revoke an interim do not bill order in relation to SMS and MMS services

         (1)   The ACMA may make an interim order requiring all mobile carriage service providers to:

                (a)    cease billing customers for the supply of specified premium SMS and MMS services of a specified content service provider; and

               (b)    cease collecting charges for the supply of specified premium SMS and MMS services of a specified content service provider.

Note   See subsection 99 (5) of the Act. The order is an interim do not bill order.

         (2)   The ACMA must not make an interim do not bill order during the period of 90 days starting on the day this Determination commences.

         (3)   The ACMA may vary or revoke an interim do not bill order.

Note   A decision to make, vary or revoke an interim do not bill order is a reviewable decision under section 555 of the Act.

         (4)   Subject to subsection (5), an interim do not bill order expires after 60 days.

         (5)   An interim do not bill order ceases to have effect before it expires, if in relation to a breach or potential breach of the MPS Code that was the subject of the order:

                (a)    the ACMA makes a do not bill order under section 3.4; or

               (b)    the ACMA gives a content service provider:

                          (i)    a written direction under section 121 of the Act; or

                         (ii)    a formal warning under section 122 of the Act; or

                (c)    the ACMA finds no breach of the MPS Code after an investigation under Part 26 of the Act.

3.10        Criteria for making interim do not bill order

         (1)   The ACMA must not make an interim do not bill order unless it is satisfied that:

                (a)    a content service provider may have breached the MPS Code, or is likely to breach the MPS Code in the future; and

               (b)    if the order is not made:

                          (i)    disadvantaged or vulnerable customers will or may suffer significant detriment; or

                         (ii)    a substantial number of customers will or may suffer immediate financial detriment; and

                (c)    it is in the public interest to make the order.

         (2)   The ACMA may not make more than one interim do not bill order in relation to the same act or omission of a content service provider.

3.11        Information on interim do not bill order

         (1)   An interim do not bill order must contain the following information:

                (a)    the identity of the content service provider to which the order relates;

               (b)    details of the premium SMS and MMS services to which the order relates;

                (c)    the date on which the order comes into force;

               (d)    the period for which the order is applicable.

         (2)   The details of the premium SMS and MMS services must consist of a list of identifying numbers with eligible prefixes and may include a description of the premium SMS and MMS services.

         (3)   The date on which an interim do not bill order comes into force must not be before the date on which the order is added to the register under subsection 3.14 (4).

3.12        Notification of interim do not bill order

         (1)   If the ACMA makes, varies or revokes an interim do not bill order in relation to a content service provider, the ACMA must:

                (a)    do all that is reasonably practicable to notify the content service provider, in writing, of the making, variation or revocation of the order; and

               (b)    include in the notification the reasons for the order.

         (2)   The ACMA must notify all mobile network operators of an order made, varied or revoked under section 3.9.

3.13        Compliance with interim do not bill order

                A mobile carriage service provider must comply with an interim do not bill order, or a variation to an interim do not bill order, within 1 business day after the day on which the order or variation comes into force.

3.14        Register of do not bill orders and interim do not bill orders

         (1)   The ACMA must maintain:

                (a)    a register of all current do not bill orders and interim do not bill orders; and

               (b)    an archive register of all expired do not bill orders and interim do not bill orders.

         (2)   The ACMA must publish the registers on the ACMA website.

         (3)   The ACMA must:

                (a)    publish any order made under section 3.4 on the register no later than 7 days after it is made; and

               (b)    ensure that the order remains on the register for the period during which it is in force.

         (4)   The ACMA must:

                (a)    publish any order made under section 3.9 on the register no later than 2 days after it is made; and

               (b)    ensure that the order remains on the register for the period during which it is in force.


Note

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.