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Determinations/Communications as made
This instrument is to set an enforceable public consultation process for Telstra as the primary universal service provider in relation to decisions it makes on the installation or removal of a payphone. It is also intended that this determination will provide any people concerned about a primary universal service provider’s proposed installation or removal with sufficient information to make an informed submission to the primary universal service provider and to be aware of the recourse available to them if they are unhappy with the provider’s final decision on the proposal.
Administered by: Communications and the Arts
Made 13 Dec 2011
Registered 16 Dec 2011
Tabled HR 07 Feb 2012
Tabled Senate 07 Feb 2012

 

Commonwealth of Australia

 

Telecommunications (Consumer Protection and Service Standards) Act 1999

 

Telecommunications Universal Service Obligation (Public Consultation on the Location or Removal of Payphones) Determination 2011

 

I, STEPHEN michael CONROY, Minister for Broadband, Communications and the Digital Economy, make the following determination under subsection 12EG(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

Dated                13 December                   2011

STEPHEN CONROY

Minister for Broadband, Communications and the Digital Economy _________________________________________________________________

Part 1         Preliminary

1     Name of determination

This Determination is the Telecommunications Universal Service Obligation (Public Consultation on the Location or Removal of Payphones) Determination 2011.

2     Commencement

This Determination commences on 1 January 2012.

3     Definitions

(1)      In this Determination, unless the contrary intention appears:

Act means the Telecommunications (Consumer Protection and Service Standards) Act 1999.

final decision means a decision made by a primary universal service provider to install a payphone at a site that is made in accordance with section 6, or a decision to remove a payphone from a site that is made in accordance with section 16.

local government body means a government body or agency that has primary responsibility for the provision of local government or municipal services within the area within which the site for the proposed location or removal of the payphone is located.

local newspaper, in relation to a payphone location proposal or payphone removal proposal, means a newspaper which is in circulation where the payphone that is the subject of the proposal is located.

payphone consultation document has the meaning given by section 13 of this Determination.

payphone location proposal has the meaning given by subsection 4(2) of this Determination.

payphone removal proposal has the meaning given by subsection 4(3) of this Determination.

site means an area of land which is no greater than 10 square metres.

 

Note:      Several other words and expressions used in this Determination have the same meaning as in the Act (see subsection 13(1) of the Legislative Instruments Act 2003). For example:

·         payphone

·         payphone carriage service

·         primary universal service provider

·         universal service area

 

(2)      Unless the contrary intention appears, expressions used in this Determination and in the Telecommunications Act 1997 have the same meaning in this Instrument as in the Telecommunications Act 1997.

4     Application of this Determination

 

(1)      Subject to subsections (2) to (4) below, this Determination applies with respect to:

                                                          (a)      a universal service area for which the provider is the primary universal service provider; and

                                                         (b)      a payphone that is:

(i)   either:

(A) situated at a payphone site specified in the payphone register that is in force from time to time in accordance with Part 5 of the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011; or

(B)  proposed to be situated at a site specified in such a register; and

(ii)  provided in accordance with paragraph 9(1)(b) and subsection 9(2A) of the Act.

(2)      If a primary universal service provider proposes to install a payphone at a site (a payphone location proposal), the provider must comply with Division 1 of Part 2.

(3)      If a primary universal service provider proposes to remove a payphone from a site at which the primary universal service provider must ensure that a payphone is located in order to comply with the rules in relation to the places or areas in which payphones are to be located as set out in a determination made under section 12EF(1) of the Act (a payphone removal proposal), the primary universal service provider must comply with:

                                                          (a)      either:

(i)     Division 2 of Part 2 where, if that removal were to occur, no payphone would remain at the site; or

(ii)   Division 3 of Part 2 where, if that removal were to occur, at least one payphone would remain at the site; and

                                                         (b)      Division 4 of Part 2.

(4)      Where a primary universal service provider proposes to relocate a payphone from one site (current site) to another site (new site), the primary universal service provider must comply with:

                                                          (a)      Division 1 of Part 2 in relation to the proposal to install the payphone at the new site; and

                                                         (b)      in relation to the proposal to remove the payphone either:

(i)     Division 2 of Part 2 where:

(A) that removal would result in there being no payphone at the current site; and

(B)  the new site is located more than 200 metres from the current site; or

(ii)   Division 3 of Part 2 where Division 2 does not apply to that removal under subparagraph (b)(i); and

                                                          (c)      Division 4 of Part 2.

Note:      Under section 18, Division 5 of Part 2 applies where, by virtue of sections 5, 8 or 14, a primary universal service provider must comply with Division 1, Division 2 or Division 3.

Part 2         Public Consultation Rules

 

Note 1:                   Subsection 12EG(1) of the Act states that the Minister may make a determination setting out rules to be complied with by a primary universal service provider in relation to the process for public consultation on the location or removal of payphones.

 

Note 2:                   Subsection 12EG(3) of the Act states that a primary universal service provider must comply with a determination under subsection 12EG(1).

Division 1             Location of a payphone

5     Notification of payphone location proposal

(1)      Subject to subsection 5(8), a primary universal service provider must provide notification of a payphone location proposal in accordance with this section.

(2)      A primary universal service provider must provide written notification of the payphone location proposal to:

                                                          (a)       the relevant local government body; and

                                                         (b)      the owners or occupiers of each residential and business premises within 50 metres of the proposed site.

(3)      A notification under subsection (1) must include the following:

                                                          (a)      a description of the site where the primary universal service provider proposes to install the payphone;

                                                         (b)      a description of the exact location on the site upon which the primary universal service provider proposes to install the payphone;

                                                          (c)      the type of payphone the primary universal service provider proposes to install;

Example of the type of payphone

The type of payphone proposed to be installed could be a card-only operated payphone.

 

                                                         (d)      the date by which the primary universal service provider intends to make a final decision regarding the proposal; and

                                                          (e)      an explanation of how the recipient of the notification, or any other person, may make a submission to the primary universal service provider regarding the proposal before a final decision is made.

(4)      A primary universal service provider must send the notification at least 42 days prior to the date specified for the purposes of paragraph (3)(d). 

(5)      A primary universal service provider must publish a notification of the  proposal:

                                                          (a)      in a local newspaper at least 42 days prior to the date specified for the purposes of paragraph (3)(d); and

                                                         (b)      on its website at least 42 days prior to the date specified for the purposes of paragraph (3)(d).

(6)      A notification under subsection (5) must include the following:

                                                          (a)      the same information specified in subsection (3);

                                                         (b)      an invitation to persons to make written submissions to the primary universal service provider regarding the payphone location proposal before a final decision is made; and

                                                          (c)      an explanation of how a person may make such a submission.

(7)      A notification under paragraph (5)(b) must be maintained on the website until the date of the final decision regarding the installation of the payphone.

(8)  The notification obligations set out in this section do not apply where:

(a)    a payphone is proposed to be installed at a site in accordance with a commercial agreement between the primary universal service provider and the owner of the site at which the payphone is proposed to be installed; and

(b)   the site at which the payphone is proposed to be installed is located at:

(i)     an airport; or

(ii)   a transport hub; or

(iii)  a commercial retail site (including a shopping centre); or

(iv)  a campus of a tertiary education institution; or

(v)   a correctional facility; or

(vi)  a hospital or other medical facility.

6     Final decision – payphone location proposal

 

(1)      A primary universal service provider may only make a final decision to install a payphone at a site if the primary universal service provider has given notification of a payphone location proposal in relation to the installation of a payphone at the site in accordance with section 5.

(2)      A final decision in relation to a payphone location proposal may not be made earlier than the date specified for the purposes of paragraph 5(3)(d).

(3)      In making a final decision regarding a payphone location proposal a primary universal service provider must take into account all the submissions received regarding the proposal.

Note:      Section 19 of the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011 requires a primary universal service provider to comply with rules under this Determination before installing a payphone at a site that is not an existing payphone site.

7     Final decision notification requirements – payphone location proposal

 

(1)      As soon as practicable after a primary universal service provider has made a final decision regarding a payphone location proposal, the primary universal service provider must provide written notification of the final decision to:

                                                          (a)      the relevant local government body; and

                                                         (b)      any person who made a submission regarding the proposal before the final decision was made.

(2)      A notification under subsection (1) must include the following:

                                                          (a)      a statement of the final decision;

                                                         (b)      the reasons for the final decision;

                                                          (c)      an explanation of how the final decision differs from the proposal, if at all; and

                                                         (d)      details of how a person who disagrees with the final decision may make a complaint to the relevant contact person at the primary universal service provider regarding the location of the payphone.

Note:      Where the Minister makes a determination under subsection 12EH(1) of the Act, a primary universal service provider must comply with the rules set out in that Determination for resolving a complaint regarding the location of a payphone.

Division 2             Payphone removal – no payphone remaining at site

8     Application of this Division

(1)      This Division applies to a payphone removal proposal where a primary universal service provider proposes to remove a payphone from a site and, if that removal were to occur, no payphone would remain at the site from which the payphone is removed.

(2)      For the avoidance of doubt, this Division does not apply where a payphone removal arises as a direct result of the property owner of the site at which the payphone is located having withdrawn its consent to retain the installation of the payphone at the site.

9     Notification of payphone removal proposal – no payphone remaining at site

(1)      A primary universal service provider must provide notification of a payphone removal proposal to which this Division applies in accordance with this section.

(2)      A primary universal service provider must:

                                                          (a)      in accordance with section 10, display a notice:

(i)     on the payphone or payphone cabinet which is proposed to be removed; or

(ii)   where reasonably practicable, near the payphone which is proposed to be removed; and

                                                         (b)      in accordance with section 11, provide written notification of the proposal to:

(i)     the relevant local government body;

(ii)   the owner of the land from which it is proposed the payphone will be removed;

(iii)  if the land from which it is proposed the payphone will be removed is occupied by a person other than the owner, the occupier; and

                                                          (c)      in accordance with section 12, publish a notification of the  proposal:

(i)     in a local newspaper; and

(ii)   on its website; and

                                                         (d)      in accordance with section 13, prepare and publish a payphone consultation document.

(3)      A primary universal service provider is not required to prepare a payphone consultation document in relation to a payphone removal proposal in the circumstance where there would be at least another payphone remaining at the site at which the payphone (which is the subject of the removal proposal) is located.

10  Requirements of display notice

 

(1)      A display notice under subparagraph 9(2)(a)(i) must be:

                                                          (a)      fixed to the payphone itself or the structure supporting the payphone;

                                                         (b)      clearly visible to a person using the payphone; and

                                                          (c)      printed in indelible ink.

(2)      A display notice under subparagraph 9(2)(a)(ii) must be:

                                                          (a)      clearly visible to the public and placed within the line of sight of a person using the payphone; and

                                                         (b)      printed in indelible ink.

(3)      A display notice under subparagraphs 9(2)(a)(i) and 9(2)(a)(ii) must include the following:

                                                          (a)      a description of the site from which the payphone is proposed to be removed;

                                                         (b)      details of the location of a payphone that is the nearest payphone to the payphone which is proposed to be removed;

                                                          (c)      the date by which the primary universal service provider intends to make a final decision regarding the proposal;

                                                         (d)      an explanation of how a person may make a submission to the primary universal service provider before a final decision is made; and

                                                          (e)      details of the website address for downloading a copy of the payphone consultation document.

(4)      A primary universal service provider must put a display notice under subparagraphs 9(2)(a)(i) and 9(2)(a)(ii) on display at least 42 days prior to the date specified for the purposes of paragraph (3)(c).

11  Requirements of notification

 

(1)      A notification under paragraph 9(2)(b) must include the information specified in subsection 10(3).

(2)      A primary universal service provider must provide a notification under paragraph 9(2)(b) at least 42 days prior to the date specified for the purposes of paragraph 10(3)(c).

12  Publication of payphone removal proposal – no payphone remaining at site

 

(1)      A notification under paragraph 9(2)(c) must include the same information specified in subsection 10(3).

(2)      A notification under subparagraph 9(2)(c)(i) must be published in the local newspaper at least 42 days prior to  the date specified for the purposes of paragraph 10(3)(c).

(3)      A notification under subparagraph 9(2)(c)(ii) must:

                                                          (a)      be published prominently on the first page of the primary universal service provider’s section of its website relating to payphones at least 42 days prior to the date specified for the purposes of paragraph 10(3)(c); and

                                                         (b)      be maintained on the website until the date of the final decision regarding the removal of the payphone.

13 Requirements of payphone consultation document

 

(1)      The payphone consultation document must:

                                                          (a)      comply with any guidelines prepared by the ACMA that set out the format for such a document; and

                                                         (b)      include the following information:

(i)     the primary universal service provider’s reasons for the payphone removal proposal including facts upon which the proposal is based;

(ii)   to the extent that it is available, and it is reasonable for the primary universal service provider to disclose it, evidence proving those facts;

(iii)  a statement about which criteria under paragraph 20(1)(b) of the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011 are considered to apply to the proposed payphone removal; 

(iv)  details of the means by which a complaint may be made by a person who wishes to make a complaint about the proposed removal of the payphone; and

(v)   notification, for the purposes of the Privacy Act 1988, that should a person make a complaint, the primary universal service provider may be required to disclose the complainant’s personal information (as contained in the complaint) to the ACMA.

Note:          Where the Minister makes a determination under subsection 12EH(1) of the Act, a primary universal service provider must comply with the rules set out in that Determination for resolving a complaint regarding the location of a payphone.

(2)      The primary universal service provider must:

                                                          (a)      publish a copy of the payphone consultation document on the first page of its section of its website relating to payphones at least 42 days prior to the date specified for the purposes of paragraph 10(3)(c); and

                                                         (b)      ensure that a copy of the document remains accessible on its website for the duration of that 42 day period.

Note:          Subsection 9(3) above sets out the circumstance where a payphone consultation document is not required to be prepared.

 

Division 3             Payphone removal – at least one payphone remaining at site

14  Application of this Division

 

This Division applies to a payphone removal proposal where a primary universal service provider proposes to remove a payphone from a site and, if that removal were to occur, one or more payphones would remain at that site.

15  Notification of payphone removal proposal – at least one payphone remaining at the site

 

(1)      A primary universal service provider must provide notification of a payphone removal proposal to which this Division applies in accordance with this section.

(2)      A primary universal service provider must provide written notification of the payphone removal proposal to:

                                                          (a)      the relevant local government body;

                                                         (b)      the owner of the land from which it is proposed the payphone will be removed; and

                                                          (c)      if the land from which it is proposed the payphone will be removed is occupied by a person other than the owner, the occupier.

(3)      A notification under subsection (1) must include the following:

                                                          (a)      a description of the site, including the street address, if applicable, from which the payphone is proposed to be removed;

                                                         (b)      the number and details of the other payphones which are located at the relevant site;

                                                          (c)      the date by which the primary universal service provider intends to make a final decision regarding the proposal;

                                                         (d)      an explanation of how a person may make a submission to the primary universal service provider during the consultation period; and

                                                          (e)      details of how a person may request, and obtain, further information by telephone, post or email regarding the proposal from the primary universal service provider.

(4)      A primary universal service provider must provide the notification at least 42 days prior to the date specified for the purposes of paragraph (3)(c).

(5)      A primary universal service provider must publish a notification of the proposal prominently on the first page of its section of the website relating to payphones at least 42 days prior to the date specified for the purposes of paragraph (3)(c).

(6)      A notification under subsection (5) must include the following:

                                                          (a)      the same information specified in subsection (3); and

                                                         (b)      an invitation to persons to make written submissions to the primary universal service provider regarding the payphone location proposal before a final decision is made; and

                                                          (c)      an explanation of how a person may make such a submission.

(7)      A notification under subsection (5) must be maintained on the website until the date of the final decision regarding the payphone removal proposal.

Division 4             Final decision – payphone removal proposal

16  Final decision – payphone removal proposal

 

(1)      A primary universal service provider may only make a final decision to remove a payphone from a site if the primary universal service provider has given notification of a payphone removal proposal in relation to the removal of a payphone from the site in accordance with the rules set out at Division 2 or 3, as applicable.

(2)      A final decision in relation to a payphone removal proposal may not be made earlier than:

                                                          (a)      if Division 2 applies to the proposal, the date specified for the purposes of paragraph 10(3)(c); or

                                                         (b)      if Division 3 applies to the proposal, the date specified for the purposes of paragraph 15(3)(c).

(3)      In making a final decision regarding a payphone removal proposal a primary universal service provider must take into account all the submissions received regarding the proposal.

Note:              Section 20 of the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011 requires a primary universal service provider to comply with rules under this Determination before removing a payphone at a site to which that Determination applies.

17  Final decision notification requirements – payphone removal proposal

 

(1)      As soon as practicable after a primary universal service provider has made a final decision regarding a payphone removal proposal, the primary universal service provider must provide written notification of the final decision to:

                                                          (a)      if Division 2 applies to the proposal––each recipient of a notification under paragraph 9(2)(b); and

                                                         (b)      if Division 3 applies to the proposal–­–each recipient of a notification under subsection 15(2); and

                                                          (c)      any person who made a submission regarding the proposal prior to the final decision.

(2)      A notification under subsection (1) must include:

                                                          (a)      a statement of the final decision; and

                                                         (b)      the reasons for the final decision, including information about the number of submissions received by the primary universal service provider regarding a payphone removal proposal and a summary of the content of those submissions; and

                                                          (c)      an explanation of how the final decision differs from the payphone removal proposal, if at all; and

                                                         (d)      details of how a person who disagrees with the final decision may:

(i)     make a complaint to the relevant contact person at the primary universal service provider regarding the removal of the payphone; and

(ii)   provided that a complaint under subsection (d)(i) has been finalised by the primary universal service provider,  notify the ACMA, through the relevant ACMA contact person, that the person objects to the removal and make a request to the ACMA for a direction about the removal of the payphone pursuant to section 12EI of the Act; and

Note:          Where the ACMA makes a Direction under either subsections 12EI(2) or (3) of the Act, a primary universal service provider must comply with a Direction to either not remove a payphone (where the payphone has not been removed) or to supply and install a payphone at a particular location within a specified period (where a payphone has already been removed). 

                                                          (e)      notification that the person has 14 days within which to make an objection to the ACMA for a review of the decision.

Division 5             Other rules in relation to the location or removal of a payphone

18  Responding to requests for further information

 

(1)      Where a person requests further information from a primary universal service provider regarding a payphone location proposal (for which Division 1 applies) or a payphone removal proposal (for which Division 3 applies) prior to the date specified for the purposes of paragraph 5(3)(d), 10(3)(c) or 15(3)(c), as relevant, the provider must respond in writing to the person’s request within 14 days.

(2)      In relation to a request for further information regarding a payphone location proposal (for which Division 1 applies), the primary universal service provider’s response under subsection (1) must include the following:

                                                          (a)      the reasons for the proposal, including details of the alleged facts upon which the proposal is based and a statement about which criteria under paragraph 6(4)(b) of the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011 are considered to apply to the proposed payphone removal;  and

                                                         (b)      to the extent that it is available, and it is reasonable for the primary universal service provider to disclose it, evidence proving those facts.

19  A final decision is not a new proposal

 

Where, following a payphone location proposal or payphone removal proposal, as a result of undertaking the public consultation required under this Determination, a primary universal service provider makes a final decision not to install or not to remove a payphone (as applicable), the primary universal service provider’s final decision does not constitute a new proposal to which the rules set out in this Determination apply.