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This instrument makes rules requiring a Primary Universal Service Provider to keep necessary records, and provide the Australian Communications and Media Authority (ACMA) with the necessary information to enable the ACMA to effectively monitor and enforce compliance with the benchmarks relating to payphones determined by the Telecommunications (Payphones) Determination 2022.
Administered by: Infrastructure, Transport, Regional Development and Communications
Registered 03 Jun 2022

Commonwealth Coat of Arms of Australia 

Telecommunications (Payphone Performance Benchmarks) Record-Keeping Rules 2022

 

The Australian Communications and Media Authority makes the following Rules under section 529 of the Telecommunications Act 1997.

Dated: 2 June 2022

Creina Chapman

[signed]

Member

 

Fiona Cameron

[signed]

Member/General Manager

 

Australian Communications and Media Authority

 

 

Part 1              Introduction

 

1     Name of Rules

These Rules are the Telecommunications (Payphone Performance Benchmarks) Record-Keeping Rules 2022.

2     Commencement

These Rules commence at the start of the day after the day they are registered on the Federal Register of Legislation.

Note:             The Federal Register of Legislation may be accessed free of charge at www.legislation.gov.au.

3     Authority

       These Rules are made under section 529 of the Telecommunications Act 1997.

4     Definitions

(1)   In these Rules, unless the contrary intention appears:

ABN has the meaning given by the A New Tax System (Australian Business Number) Act 1999.

applicable payphone has the meaning given in section 5.

audit report means a report that includes the items specified in subsection 16(4).

compliance report means a report under section 11.

maximum rectification period has the meaning given in section 6.

nominated area means Australia.

payphone has the meaning given by section 9C of the TCPSS Act.

payphone carriage service has the meaning given by subsection 5(2) of the TCPSS Act.

Payphones Determination means the Telecommunications (Payphones) Determination 2022.

primary universal service provider has the meaning given by section 12A of the TCPSS Act.

rectification period means the period taken to rectify a fault or service difficulty relating to a payphone or payphone carriage service, excluding any period during which the primary universal service provider was not required to comply with a payphone benchmark standard in relation to the fault or service difficulty because of an exemption under paragraph 12(1)(a) or 12(1)(b) of the Payphones Determination.

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

Telecommunications Act means the Telecommunications Act 1997.


 

 

(2)   In these Rules, unless the contrary intention appears, the following terms have the meaning given to them in the Payphones Determination:

(a)    fault or service difficulty;

(b)   payphone benchmark standards;

(c)    payphone register;

(d)   payphone site;

(e)    remote area;

(f)    rural area; and

(g)   urban area.

Note 1:    The expressions ‘business day’ and ‘financial year’ are defined in section 2B of the Acts Interpretation Act 1901.

Note 2:    Unless the contrary intention appears, expressions used in these Rules and in the Telecommunications Act have the same meaning in these Rules as in the Telecommunications Act.

5     Applicable payphone

A payphone is an applicable payphone if it is:

(a)   situated at a payphone site specified in a payphone register; and

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

6     Maximum rectification period

In these Rules maximum rectification period means the benchmark standard timeframe, in subsection 13(1) of the Payphones Determination, within which a primary universal service provider must rectify a fault or service difficulty in respect of a payphone or payphone carriage service.

7     References to other instruments

In these Rules, unless the contrary intention appears:

(a)   a reference to any other legislative instrument is a reference to that other legislative instrument as in force from time to time; and

(b)   a reference to any other kind of instrument is a reference to that other instrument as in force from time to time.   

Note 1:    For references to Commonwealth Acts, or any other instruments, see section 589 of the Telecommunications Act and section 10 of the Acts Interpretation Act 1901; and see also subsection 13(1) of the Legislation Act 2003 for the application of the Acts Interpretation Act 1901 to legislative instruments.

Note 2:    All Commonwealth Acts and legislative instruments are registered on the Federal Register of Legislation.

Part 2           Keeping of Records

8     Records relating to faults or service difficulties

(1)      A primary universal service provider must, in relation to each report that it receives, or produces, of a fault or service difficulty in respect of:

(a)      an applicable payphone; or

(b)     a carriage service supplied by means of an applicable payphone,

keep a record of the matters prescribed in subsection (2).

(2)   The matters prescribed for the purposes of subsection (1) are:

(a)      if the primary universal service provider produced a report of the fault or service difficulty – the date and time at which the report was produced;

Note:       In some cases, a report of a fault or service difficulty may be automatically generated by a primary universal service provider (see paragraph 13(2)(b) of the Payphones Determination).

(b)     if the primary universal service provider received a report of the fault or service difficulty –

(i)    the date and time at which the report was received; and

(ii)   if known - the name of the person who reported the fault or service difficulty;

Note 1:    Paragraph 13(2)(a) of the Payphones Determination provides that where a primary universal service provider receives or produces a report in respect of a fault or service difficulty, the timeframes stipulated in subsection 13(1) of the Payphones Determination commence on the day after the day of receipt or production (whichever occurs first).

Note 2:    Paragraph 13(2)(c) of the Payphones Determination provides that if the primary universal service provider receives or produces a report that a payphone or a payphone carriage service is affected by a fault or service difficulty on a day that is not a business day, or after 5 pm on a business day, the timeframes stipulated in subsection 13(1) of the Payphones Determination commence on the next business day.

(c)      the location of the payphone or the payphone in respect of which the payphone carriage service is supplied;

(d)     the date and time at which the maximum rectification period expires in relation to the fault or service difficulty;

Note:       In circumstances where paragraph (g) or (h) below apply, the date and time at which the maximum rectification period expires may not be apparent for some time.  The provider should record this information when the date and time become known.

(e)      the date and time at which the primary universal service provider rectified the fault or service difficulty;

(f)      the rectification period in business days;

(g)     if a law of the Commonwealth, a State or Territory prevents the primary universal service provider from complying with a payphone benchmark standard with respect to the rectification of the fault or service difficulty –

(i)                 the name of that law;

(ii)               the reason why that law prevents the provider from complying with the payphone benchmark standard;

(iii)             the date on which the provider became prevented from complying with the payphone benchmark standard by reason of the law;

(iv)             the date by which the provider anticipates that the fault or service difficulty will be rectified (if known); and

(v)               the date and time at which the law ceased to prevent the provider from complying with the payphone benchmark standard; 

(h)     if circumstances beyond the control of the primary universal service provider prevent the provider from complying with a payphone benchmark standard with respect to the rectification of the fault or service difficulty –

(i)                  a description of those circumstances;

(ii)               the reason why those circumstances prevent the provider from complying with the payphone benchmark standard;

(iii)             the date on which those circumstances arose;

(iv)             the date by which the provider anticipates that the fault or service difficulty will be rectified (if known); and

(v)               the date and time at which the circumstances ceased to prevent the provider from complying with the payphone benchmark standard; and

(i)     whether the payphone to which the report relates, is located in:

(i)                 an urban area;

(ii)               a rural area; or

(iii)             a remote area.

9     Records relating to a primary universal service provider’s procedures

A primary universal service provider that claims it is exempt from compliance with the payphone benchmark standards by reason of paragraphs 12(1)(a) or (b) of the Payphones Determination, must keep records of the procedures that the provider has in place to ensure that it does not rely on an exemption in circumstances that are not beyond the provider’s control.

Note:         Subsection 12(3) of the Payphones Determination provides that a primary universal service provider is not exempt from compliance with a payphone benchmark standard unless the provider has such procedures in place.


 

Part 3           Retention of Records

10   Period for retention of records

If, in a financial year, a primary universal service provider is required to keep a record of a matter described in Part 2, the primary universal service provider must retain that record for a period that expires no earlier than two years after the end of that financial year.    

Note:         For example, if in accordance with Part 2, a primary universal service provider keeps a record of a matter in the financial year commencing 1 July 2022 and ending 30 June 2023, that record must be retained until at least 30 June 2025.


 

Part 4           Reporting

11   Requirement to prepare compliance reports

(1)      A primary universal service provider must, in accordance with this section, prepare a compliance report in respect of each financial year.

(2)      A compliance report must:

(a)      include the information specified in Schedule 1; and

(b)     be in the form specified in Schedule 2.

12   Requirement to give compliance reports to the ACMA

(1)      A primary universal service provider must give to the ACMA a compliance report in respect of each financial year no later than 40 business days after the end of the financial year, or such later time as agreed in writing by the ACMA.

(2)      A compliance report must be given to the ACMA by electronic transmission to the email address published for the purposes of this subsection from time to time on the ACMA website.


Part 5           Audit

13   Auditing of compliance with these Rules

(1)      Subject to subsection (4), the ACMA may, in accordance with subsections (2) or (3), by written notice given to a primary universal service provider, require the primary universal service provider to engage, at its own cost, an external auditor to audit the compliance of the primary universal service provider with these Rules.

(2)      The ACMA may require the primary universal service provider to obtain one initial audit in respect of each compliance report which the primary universal service provider is required to give to the ACMA under subsection 12(1).

(3)      The ACMA may require the primary universal service provider to obtain one follow-up audit in respect of each initial audit required under subsection (2) if the ACMA forms a view on reasonable grounds that the initial audit is inadequate.

(4)      The ACMA may only require an audit under subsection (1) if it forms a view on reasonable grounds that an audit is necessary.

14   Audit terms of reference

(1)      This section applies to a primary universal service provider that has received a notice given under subsection 13(1).

(2)      The primary universal service provider must, no later than 21 days after receipt of the notice, or such longer period as the ACMA may agree in writing, give to the ACMA draft terms of reference of the audit.

(3)      The ACMA may, by written notice given to the primary universal service provider:

(a)      approve the draft terms of reference; or

(b)     require the primary universal service provider to make changes to the draft terms of reference.

(4)      Within 14 days after receipt of a notice given under paragraph (3)(b), or such longer period as the ACMA may agree in writing, the primary universal service provider must provide to the ACMA revised terms of reference.

(5)      The ACMA may, by written notice given to the primary universal service provider:

(a)      approve the revised terms of reference; or

(b)     specify the terms of reference of the audit, provided that it has formed the view on reasonable grounds that the revised terms of reference do not give effect to the changes notified under paragraph (3)(b).

(6)      The terms of reference of the audit must include:

(a)      the objectives of the audit;

(b)     the format of the auditor's opinion;

(c)      the auditing standard or standards in accordance with which the audit must be conducted; and

(d)     a timetable for the conduct of the audit, including the date by which the audit report is to be provided by the auditor to the primary universal service provider.

Note:       Section 16 sets out requirements relating to the provision of audit reports to the ACMA.

(7)      The objectives of the audit must include determining whether the primary universal service provider:

(a)      has prepared a compliance report required under section 11; and

(b)     kept any records of a kind described in Part 2 required under these Rules,

in accordance with the requirements of these Rules.

15   Nomination of auditor

(1)      This section applies to a primary universal service provider that has received a notice under paragraph 14(3)(a), 14(5)(a) or 14(5)(b), as the case may be.

(2)      The primary universal service provider must, no later than 21 days after receipt of the notice, or such longer period as the ACMA may agree in writing, notify the ACMA in writing of its choice of auditor.

(3)      The ACMA may, by written notice given to the primary universal service provider:

(a)      approve the choice of auditor; or

(b)     reject the choice of auditor.

(4)      Within 14 days after receipt of a notice given under paragraph (3)(b), or such longer period as the ACMA may agree in writing, the primary universal service provider must notify the ACMA in writing of a new choice of auditor.

(5)      The ACMA may, by written notice given to the primary universal service provider:

(a)      approve the new choice of auditor; or

(b)     require the primary universal service provider to contract with a specified auditor or any auditor from a specified group of auditors.

(6)      The primary universal service provider must take all necessary steps to ensure that the auditor:

(a)      complies with the applicable terms of reference under section 14; and

(b)     is able to form an opinion in relation to the achievement of the objectives of the audit referred to in subsection 14(7).

16   Requirement to provide audit report to the ACMA

(1)      This section applies to a primary universal service provider if sections 13, 14 and 15 apply to the primary universal service provider.

(2)      Upon receipt by the primary universal service provider of the audit report from the auditor, the provider must, within 14 days, or such longer period as the ACMA may agree in writing, give the audit report to the ACMA.

(3)      The primary universal service provider must take all necessary steps to ensure that the auditor provides an audit report meeting the description in subsection (4).

(4)      For the purposes of this section, an audit report must include:

(a)      an audit plan outlining the scope and coverage of the audit;

(b)     an audit memorandum stating how the audit scope and objectives have been applied; and

(c)      an expression of opinion as to whether the primary universal service provider has:

(i)                 prepared a compliance report required under section 11; and

(ii)               kept any records of a kind described in Part 2 required under these Rules,

in accordance with the requirements of these Rules.

 


Schedule 1  Information to be included in a compliance report

1   Information relating to the primary universal service provider and financial   year

A compliance report must include:

                     (a)  the name of the primary universal service provider;

                     (b)  the ABN of the primary universal service provider;

                     (c)  the date on which the compliance report was prepared; and

                     (d)  the start and end dates of the financial year.

2   Performance information relating to faults or service difficulties

(1)        A compliance report must include, in respect of the financial year covered by the report, the following information in relation to each area described in subclause (2):

(a)     the number of times that the primary universal service provider was required to comply with a payphone benchmark standard during the financial year;

Note:    This number would include all of those faults or service difficulties in respect of which the provider was required to comply with a payphone benchmark standard before the expiration of the financial year.

(b)     of those times referred to in paragraph (a) –

(i)      the number of times that the provider complied with that payphone benchmark standard; and

Note:    This number would include the number of times (if any) that the provider complied with that payphone benchmark standard following a period (in this or a previous financial year) during which the provider was exempt from compliance with that standard because of paragraph 12(1)(a) or 12(1)(b) of the Payphones Determination.

(ii)     the number of times that the provider did not comply with that payphone benchmark standard; and

Note:    This number would include the number of times (if any) that the provider did not comply with that payphone benchmark standard following a period (in this or a previous financial year) during which the provider was exempt from compliance with that standard because of paragraph 12(1)(a) or 12(1)(b) of the Payphones Determination.

(c)     the number of times that the provider was not required to comply with a payphone benchmark standard in relation to a fault or service difficulty reported during the financial year or a previous financial year, because of an exemption under paragraph 12(1)(a) or 12(1)(b) of the Payphones Determination.

Note:    This number would include all instances in which the provider was not required to comply with a payphone benchmark standard, irrespective of whether or not the provider has subsequently become required to comply with that standard.

(2)        For the purposes of subclause (1), the areas are:

(a)      the nominated area; and

(b)     each of the following areas within the nominated area:

(i)     remote areas;

(ii)     rural areas; and

(iii)    urban areas.

3   Exemptions – information about whether procedures in place

If the provider claims that it was not required, during the financial year, to comply with a payphone benchmark standard in relation to a fault or service difficulty reported during the financial year or a previous financial year, because of an exemption under paragraph 12(1)(a) or 12(1)(b) of the Payphones Determination – a compliance report must specify whether the provider has procedures in place to ensure that the provider does not rely on the exemption in circumstances that are not beyond its control.


Schedule 2  Form of compliance report

Instructions for completion of this form -

·           All fields in the tables must be completed (nil returns must be specified where appropriate).

 

Table 1 - Information relating to the primary universal service provider and the financial year

 

Name of primary universal service provider

 

ABN of primary universal service provider

 

Date on which compliance report was prepared

 

Start and end dates for the financial year

 

Note:          The information to be included in Table 1 is the information referred to in clause 1 of Schedule 1.

Table 2 – Performance information relating to faults or service difficulties

For financial year ending [insert]

Nominated area

Schedule 1 reference

Description

Urban areas

Rural areas

Remote areas

Total

Australia

2(1)(a)

Number (required to comply)

 

 

 

 

 

2(1)(b)(i)

Number (complied)

 

 

 

 

 

2(1)(b)(ii)

Number (did not comply)

 

 

 

 

 

2(1)(c)

Number (not required to comply – exemption)

 

 

 

 

Note:          The information to be included in Table 2 is the information referred to in clause 2 of Schedule 1.


 

Table 3 – Information confirming existence of procedures (where exemptions relied upon)

For financial year ending [insert]:

Does the provider have procedures in place to ensure that the provider does not rely on an exemption under paragraph 12(1)(a) or 12(1)(b) of the Payphones Determinations in circumstances that are not beyond its control? 

 

Note:          The information to be included in Table 3 is the information referred to in clause 3 of Schedule 1.