Commonwealth of Australia
Telecommunications Universal Service Obligation (Payphone Performance Benchmarks) Instrument (No. 1) 2011
I, STEPHEN michael CONROY, Minister for Broadband, Communications and the Digital Economy, make the following instrument under subsections 12EE(1) and 12EE(6) 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 Instrument
This Instrument is the Telecommunications Universal Service Obligation (Payphone Performance Benchmarks) Instrument (No. 1) 2011.
2 Commencement
This Instrument commences on 1 January 2012.
3 Objects
The objects of this Instrument are to:
(a) set out the standards to be complied with by a primary universal service provider in relation to various matters regarding payphones and payphone carriage services, as provided for at subsection 12EE(1) of the Act; and
Note: The relevant standards are set out in Part 2 of this Instrument.
(b) set minimum benchmarks in relation to compliance by a primary universal service provider with those standards, as provided for at subsection 12EE(6) of the Act.
Note: The relevant minimum benchmarks are set out in Part 3 of this Instrument.
4 Definitions
In this Instrument, unless the contrary intention appears:
Act means the Telecommunications (Consumer Protection and Service Standards) Act 1999.
ACMA means the Australian Communications and Media Authority.
fault or service difficulty has the meaning given by subsection 8(5) of this Instrument.
initial benchmark period means the period beginning on 1 January 2012 and concluding at the end of 30 June 2012.
major rural area means an urban centre or other recognised community grouping with a population greater than 2,500 but less than 10,000 people.
minor rural area means an urban centre, locality or other recognised community grouping with a population of greater than 200 but not more than 2,500 people.
payphone has the same meaning as in section 9C of the Act.
payphone benchmark standards has the meaning given by section 7 of this Instrument.
payphone carriage service has the meaning given by subsection 5(2) of the Act.
primary universal service provider has the meaning given by section 12A of the Act.
remote area means a geographic area which is not an urban area, major rural area or minor rural area.
rural area means an area that is either a major rural area or a minor rural area.
subsequent benchmark period means:
(a) a financial year commencing on 1 July 2012; and
(b) each later financial year.
universal service area has the meaning given by section 9G of the Act.
universal service obligation has the meaning given by subsection 9(1) of the Act.
urban area means an urban centre with a population equal to or greater than 10,000 people.
urban centre is a reference to a geographic area defined as an urban centre in accordance with criteria used by the Australian Bureau of Statistics for the most recent Australian Census.
working day in a location, means a day which is not a Saturday, Sunday or public holiday in the location.
Note: Several other words and expressions used in this Instrument have the same meaning as in the Act (see subsection 13(1) of the Legislative Instruments Act 2003).
5 Application of this Instrument
This Instrument applies with respect to a payphone that is:
(a) situated (or proposed to be 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; and
(b) provided (or proposed to be provided) in accordance with paragraph 9(1)(b) and subsection 9(2A) of the Act.
Part 2 - Payphone benchmark standards
Division 1 Compliance with payphone benchmark standards
6 Primary universal service provider must comply with standards
(1) A primary universal service provider must comply with the payphone benchmark standards, unless:
(a) a law of the Commonwealth or a State or Territory prevents the provider from complying with a payphone benchmark standard; or
(b) there are circumstances beyond the control of the provider that prevent the provider from complying with a payphone benchmark standard.
(2) For the purposes of paragraph (1)(b) above, circumstances beyond the control of a primary universal service provider include (but are not limited to) the following circumstances:
(a) damage to a primary universal service provider’s facility that is used in relation to the payphone or the payphone carriage service that is not caused by the provider;
(b) a natural disaster that:
(i) causes mass outages of payphones or payphone carriage services; and
(ii) restricts rectification of a fault or service difficulty;
(c) extreme weather conditions that:
(i) causes mass outages of payphones or payphone carriage services; and
(ii) restricts rectification of a fault or service difficulty;
(d) a primary universal service provider is requested by a public authority to provide emergency communications services to assist in emergency action, and the provision of those services restricts rectification of a fault or service difficulty;
Note: See subsection 6(4) for the definition of ‘public authority’.
(e) a primary universal service provider is prevented from rectifying a fault or service difficulty, because the provider is unable to obtain lawful access to land or a facility;
(f) where a third party fails to provide sufficient power to operate a payphone which prevents a primary universal service provider from complying with a payphone benchmark standard;
(g) the modification, maintenance or upgrade of a facility or network that is used to supply the payphone or a payphone carriage service, where such modification, maintenance or upgrade work occurs in connection with the migration of services to the national broadband network; and
(h) the need to move staff or equipment to an area affected by circumstances beyond the control of the provider.
(3) A primary universal service provider is not exempt from compliance with a payphone benchmark standard unless the primary universal service provider has procedures in place to ensure that it does not rely on the exemption in circumstances that are not beyond its control.
(4) In paragraph (2)(d) above, ‘public authority’ means:
(a) the Commonwealth or a State or Territory; or
(b) a Commonwealth, State or Territory authority, including:
(i) a police force or service; and
(ii) a fire service; and
(iii) an ambulance service; and
(iv) a local government authority.
(5) If a primary universal service provider was prevented from complying with a payphone benchmark standard as a result of:
(a) a law of the Commonwealth, a State or a Territory; or
(b) circumstances beyond the control of the primary universal service provider;
the provider must ensure it complies with the payphone benchmark standard from the time that the provider is no longer prevented from complying with the payphone benchmark standard by the law or the circumstances (as the case may be).
Division 2 Payphone benchmark standards
7 Definition of payphone benchmark standards
The payphone benchmark standards are the standards set out in section 8 of this Instrument.
(1) The standards set out at subsection (2) apply in relation to:
(a) the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone following the making of a report about a fault or service difficulty; and
(b) the maximum period in which a primary universal service provider must rectify a fault or service difficulty relating to a payphone carriage service following the making of a report about a fault or service difficulty.
(2) Subject to subsection (9), a primary universal service provider must rectify a fault or service difficulty within the following timeframes, in relation to the fault or service difficulty where the payphone is located in:
(a) an urban area – 1 working day;
(b) a rural area – 2 working days;
(c) a remote area – 3 working days.
(3) For the purposes of paragraph (2), the timeframe for rectification of the fault or service difficulty commences on the day after the primary universal provider receives, or it produces, a report about the fault or service difficulty (whichever occurs first).
(4) To avoid doubt, a report about a fault or service difficulty can include an automated or electronic report that is generated for the purpose of making the primary universal service provider, or an employee or agent of the primary universal service provider, aware of a fault or service difficulty.
(a) absence of a dial tone or ring tone;
(b) inability to make a call due to:
(i) the individual payphone; or
(ii) a fault with the payphone carriage service supplied to that payphone; or
(iii) a fault with the connection to the individual payphone;
(c) disruption to communications because of excessive noise levels on the line; or
(d) repetition of service cut offs.
(6) For the purposes of subsection (5), a fault or service difficulty does not include a non-critical fault.
Examples of a non-critical fault
A non-critical fault may include a flickering light in a phone box; damage to a payphone booth; or damage to a payphone where at least one calling mechanism is still operating and available to a user to make a call.
(7) To avoid doubt, for the purposes of subsection (5), the useability of a payphone or payphone carriage service includes the ability for the phone or service to be operated by at least one calling mechanism.
(8) For the purposes of subsection (7), any of the following is a calling mechanism:
(a) coin;
(b) phonecard;
(c) credit card;
(d) operator assistance;
(e) reverse charge calling.
(9) If a 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 working day or after 5 pm on a working day, the notification is deemed to be received on the next working day.
Part 3 - Payphone Performance Benchmarks
9 Meaning of performance benchmark
The performance benchmarks are:
(a) with respect to compliance with a payphone benchmark standard in relation to payphones in an urban area in the initial benchmark period and each subsequent benchmark period – 90 per cent of the total number of times that a primary universal service provider is required to comply with the payphone benchmark standard in that period;
(b) with respect to compliance with a payphone benchmark standard in relation to payphones in a rural area:
(i) in the initial benchmark period – 80 per cent; and
(ii) in each subsequent benchmark period – 90 per cent;
of the total number of times that a primary universal service provider is required to comply with the payphone benchmark standard in a rural area in that period;
(c) with respect to compliance with a payphone benchmark standard in relation to payphones in a remote area:
(i) in the initial benchmark period – 70 per cent; and
(ii) in each subsequent benchmark period – 80 per cent;
of the total number of times that a primary universal service provider is required to comply with the payphone benchmark standard in a remote area in that period.