Consumer involvement in telecommunications regulation

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Consumer involvement in telecommunications
regulation

• ACMA International Training Program 2006
• Elizabeth Beal, Director

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Introduction

• Communications Law Centre
• A non-profit research, teaching and public
  education
• organisation specialising in media and
  communications law and policy
• (http//www.comslaw.org.au)
• Oz NetLaw
• An internet legal practice of the CLC providing
  legal information
• and advice on internet and e-commerce related
  issues.
• (http//www.oznetlaw.net)

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Lecture Outline

• The role of NGOs (consumer public interested
  organisations) in current regulatory framework
• Case Study Communications Law Centre
• Consumer protection framework
• Case Study Unfair Terms in Telecommunications
  Consumer Contracts

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• The CLC addresses consumer/public interest issues
  in telecommunications through
• Consultative Co-regulatory forums
• Research
• Expert Advice
• Law Reform
• Public Education Awareness

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Consultative Co-regulatory forums
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Consultative Co-regulatory forums

• The CLC participates in several consultative and
  co-regulatory forums relevant to
  telecommunications consumer issues
• Australian Communications and Media Authority -
  Consumer Consultative Forum
• Australian Consumer and Competition Commission -
  Consumer Consultative Committee
• Australian Communications Alliance (incorporating
  ACIF) - Consumer Council
• Telecommunications Industry Ombudsman - Council
• Telstra - Consumer Consultative Council

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ACMA CCF

• The current Consumer Consultative Forum (CCF) was
  established in 1997 in accordance with the
  Australian Communications Authority Act 1997 and
  continues under the Australian Communications and
  Media Authority Act 2005.
• Previously met twice a year for consumer input
  recent review has proposed a new CCF format
  supplementing the CCF meetings with an annual
  consumer conference.

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ACMA CCF Terms of Reference

• The terms of reference for the ACMA CCF are to
• assist the ACMA with consumer consultation on
  matters relating to its telecommunications
  functions
• ensure that consumer interests are adequately
  considered in ACMA's decision-making and
• assist in informing the community about
  telecommunications service issues and matters
  relating to the industry

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Issues for ACMA CCF Consultation

• Issues to be considered by the CCF are issues
  that ACMA may address under the provisions of the
  Telecommunications Act 1997, and may include-but
  are not limited to
• Access to services
• Quality of service issues
• Regulatory arrangements
• Emergency services
• Technological changes
• Privacy

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ACMA CCF Members

• Consumer Organisations
• Australian Consumers' Association (ACA),
  Consumers' Telecommunications Network (CTN),
  Council on the Ageing (COTA), Federation of
  Ethnic Communities' Councils of Australia
  (FECCA), Isolated Children's and Parents'
  Association of Australia (ICPA-Aust), Australian
  Federation of Disability Consumers (AFDC),
  National Farmers' Federation (NFF), Small
  Enterprise Telecommunications Centre Ltd (SETEL),
  Youth Action and Policy Association (YAPA)
• Government Bodies
• Aboriginal and Torres Strait Islander Commission
  (ATSIC), ACMA (Chair), ACCC, Department of
  Communications, Information Technology and the
  Arts (DCITA)
• Industry/Policy Bodies
• Australian Telecommunications Users Group (ATUG),
  Communications Law Centre (CLC),
  Telecommunications Industry Ombudsman (TIO)

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Consultation with the ACCC

• The Trade Practices Act sets out formal
  procedures for the submission of views and
  information on adjudication matters and
  conferences. Less formal arrangements have been
  established through contact with industry
  associations and consumer groups.
• - ACCC Annual Report 04-05, p 199

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ACCC CCC

• The Australian Competition and Consumer
  Commission Consumer Consultative Committee meets
  to advise the ACCC on issues and trends affecting
  consumers that fall within the scope of the Trade
  Practices Act. It meets quarterly.
• Telecommunications issues have held the position
  of the highest area of consumer complaint to the
  ACCC for several years. The specific expertise
  of the CLC in this field is useful in providing
  information to other consumer representatives as
  well as Commission staff.

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ACCC CCC Members

• Comprises of consumer, community and welfare
  organisations from around Australia. Members
  during 2004/2005 were
• Australian Consumers Association
• National Council on Intellectual Disability
• National Childrens and Youth Law Centre
• Australian Financial Counselling and Credit
  Reform Association
• Tangentyere Council
• Federation of Ethnic Communities Council of
  Australia
• Communications Law Centre
• Consumer Law Centre Victoria
• Consumers Federation of Australia
• Country Womens Association of Australia
• Tasmanian Council of Social Service
• Public Interest Advocacy Centre

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ACIF Consumer Council

• The ACIF Consumer Council (the Council) was an
  initiative to ensure adequate and appropriate
  broad consumer input into ACIF processes and
  activities, particularly, in Code development.
  The Council works in parallel with, and is
  complementary to, the existing ACIF Structure.
• The roles and responsibilities of the Council are
  based upon providing broadly-based consumer input
  to ACIF, including input to the ACIF Strategic
  Plan and input to the ACIF Works Program.
• The scope of the Council is not limited to the
  work and role of ACIF. Council meets with some of
  the other Government and industry departments
  involved in the telecommunications industry
  including ACMA and theTIO.

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ACIF CC Members

• The Council comprises up 14 members as at
  (January 2006) from a wide range of consumer
  representative and public interest
  representative
• Consumers Telecommunications Network
• Outback Digital Network
• Dr Christopher Newell (ACIF Disability Council)
• Australian Council of Social Services
• Australian Seniors Computer Clubs Association
• Australian Telecommunications Users Group
• Communications Law Centre
• Country Womens' Association of Australia
• Ethnic Communities' Council of Victoria
• Internet Society of Australia
• National Council of Women of Victoria
• Small Enterprise Telecommunications Centre
  Limited
• Telecommunications Consumer Group SA
• Collective of Self Help Groups

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Recent ACIF CC Reforms

• Reduced from 14 members to 9
• Reduction in number of meetings
• Each member has to go through an ACIF selection
  process.

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Role of TIO Council

• The Council's role is complementary to that of
  the Ombudsman in that the Ombudsman has
  responsibility for the day-to-day operation of
  the TIO Scheme and the Council's role is to
  provide policy advice to the Ombudsman and to the
  Board.
• The Council's role as an intermediary between the
  Ombudsman and the Board ensures the independence
  of the Ombudsman.

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Responsibilities of TIO Council

• to determine policies and procedures within the
  framework of the Constitution of TIO Limited
• to recommend to the Board a person to be
  appointed as the Ombudsman
• to recommend to the Board the termination of the
  appointment of the Ombudsman if required
• to make recommendations, if it thinks fit, to the
  Board concerning the appointment and termination
  of an Acting Ombudsman and a Deputy Ombudsman
• to monitor the Constitution and make
  recommendations to the Board on amendments
  thereto where necessary
• to receive and consider recommendations from the
  Ombudsman for amendments to the Constitution
• to provide advice to the Ombudsman on resource
  allocation
• to receive and consider the TIO's financial
  budgets and business plans
• to refer financial budgets and business plans to
  the Board with comments and recommendations
• to make recommendations to the Board as to the
  appropriateness, scope and timing of a review of
  the TIO Scheme and
• to provide advice to the Ombudsman on the
  promotion of the TIO Scheme and the preparation
  of the Annual Report.

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TIO Council Composition

• The Council comprises at least seven
  representatives. There are currently five
  industry representatives and five public
  interest/user group representatives (including a
  staff member from the Communications Law Centre),
  with an independent Chairperson.
• The TIO Board appoints an independent Chairperson
  of the Council, who is not associated with any
  Member of TIO Limited. Before appointment of the
  Chairperson, the Board consults with the Minister
  for Communications and the Minister responsible
  for Consumer Affairs Policy.

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Role of TCCC

• The TCCC has the following objectives
• Improve Telstra's knowledge and understanding of
  the interests and concerns of consumers and
  particular groups of consumers
• Improve consumers' knowledge and understanding of
  Telstra's policies and activities and the
  environment in which it operates
• Provide structured opportunities for consumer
  representatives to provide input into Telstra's
  decisions and on specific initiatives
• Provide structured and networking opportunities
  for Telstra and consumer representatives to
  explore initiatives of mutual benefit

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TCCC Member Organisations

• Federation of Ethnic Communities Councils
  Australia
• Isolated Children's Parents' Association
• Small Enterprise Telecommunications Centre
• Councils on the Ageing
• Australian Seniors Computer Clubs Association
• Australian Council of Social Service
• Communications Law Centre
• Indigenous Remote Communication Association
• The Internet Society of Australia
• Australian Financial Counselling Credit Reform
  Association
• Youth Affairs Council of Victoria
• National Council of Women in Australia
• Central Land Council
• Australian Federation of Disability Organisations
• Consumer Telecommunications Network

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TCCC Issues Previously Discussed

• Improving communications services in rural,
  regional and remote Australia
• Consumers and next generation communications
  technologies
• Simplifying Telstras customer contracts
• Remote Indigenous communities understanding the
  user environment in order to develop appropriate
  telephone services
• Consumer codes and consumer protection the
  effectiveness of the self-regulatory regime in
  delivering appropriate consumer protections
• Telstra's Corporate Social Responsibility
  reporting
• Researching the impact of the Access for Everyone
  program for people on low incomes
• New mobile data features and the socially
  responsible use of mobile phones
• Mobile culture investigating the ways in which
  wireless networks are changing our society and
  our use of the home telephone
• The converging regulatory environment for
  broadcasting and communications
• Broadband takeup the technologies, the prices,
  credit management issues, community sector usage

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• The CLC addresses consumer/public interest issues
  in telecommunications through
• Consultative Co-regulatory forums
• Research
• Expert Advice
• Law Reform
• Public Education Awareness

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Research
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CLC Research Includes

• Not So Special Telecommunications Contracts,
  Disability and Unfair Practices (2006)
• Going Going Gone Online Auctions, Consumers and
  the Law (2006)
• Model consumer contract for telecommunications
  (2004)
• Counting the cost low income households and
  telecommunications (2002)
• One size fits none Australian telecommunications
  household profiles (2002)
• Unfair practices and telecommunications consumers
  (2001-02)
• Mobile matters young people and mobile phones
  (1999)

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Expert Advice
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CLC Expert Advice Includes

• ISP Consumer Contracts Compliance with Victorian
  Unfair Terms Legislation commissioned by CAV
  (August, 2006)
• Fair Trading Act 1999 (Vic) Compliance Review
  Unilateral Variation Early Termination Clauses
  (Feb, 2006) commissioned by Consumer Affairs
  Victoria (CAV)
• Mobile Phone Contracts Compliance with Victorian
  Unfair Terms Legislation commissioned by CAV
  (March, 2004)
• Telecommunications Consumer Contracts Compliance
  with the ACIF Consumer Contracts Industry
  Guideline (2003) commissioned by the ACA (now
  ACMA)
• Consumer Experiences with Selling Practices
  (1999) commissioned by Australian Communications
  Industry Forum (ACIF)

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CLC Expert Advice (cont )

• The CLC and its staff regularly receives requests
  to provide an opinion on telecommunications
  issues due to the expertise of the CLC and staff
  in the area. Informal and formal requests for our
  views are received from government, industry and
  consumer organisations including
• DCITA, Senate Committees, (government)
• ACCC, ACMA, CAV (regulators)
• ACIF, TIO, TISSC (industry organisations)
• ACA, CTN (consumer organisations)
• The media also regularly requests the CLC to
  comment on telecommunications issues

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Law Reform
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Independent from industry government

• While the CLC regularly undertakes research and
  other activities in association with industry,
  regulators or other government bodies, its role
  as an independent advocate for the public
  interest is always maintained. The CLC frequently
  provides submissions to public inquiries and
  reviews, arguing for policy outcomes that do not
  necessarily reflect the interests of the industry
  or government entities with which it has been
  involved

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CLC submissions to public inquiries reviews
include

• Australian Communications Industry Forums (ACIF)
  issues paper, A Single Consumer Code for
  Telecommunications (2005)
• Senate Environment, Communications, IT and the
  Arts References Committee, Legislation Committee,
  Inquiry into the Australian Communications and
  Media Authority (January 2005). The CLC Director,
  attended the Senate Committee hearings in
  Canberra and provided oral evidence to support
  the CLCs written submission.
• Internet Industry Association IIA Codes of
  Practice Internet and Mobile Content (December
  2004)
• Office of the Federal Privacy Commissioner -
  Review of the Private Sector provisions of the
  Privacy Act (December 2004)
• Australian Communications Authority (ACA) Interim
  Consumer Protection Principles and Procedures for
  Premium Rate Services (First Submission) (March
  2004)

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CLC submissions (cont)

• ACA Interim Consumer Protection Principles and
  Procedures for Premium Rate Services (Second
  Submission) (March 2004)
• Standing Committee of Officials of Consumer
  Affairs Unfair Contract Terms Working Party
  Unfair Terms Discussion Paper March 2004
• Senate Regional Telecommunications Inquiry
  September 2002
• Senate Select Committee Australian
  Telecommunications Network Inquiry July 2002
• Australian Broadcasting Authority Adequacy of
  Local News and Information Programs on Commercial
  Television Services in Regional and Rural
  Australia February 2002
• Fair Trading Advisory Council, NSW Department of
  Fair Trading Infomercial Inquiry November 2001
• Productivity Commission Inquiry into
  Telecommunications Competition Regulation
  September 2001
• ACA Development of Code for Internet Service
  Providers August 2001

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Public Education Awareness
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Public Education Awareness

• Research and consumer information made publicly
  available
• Public education awareness projects
• Media coverage

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Research consumer information publicly
available

• CLC UNSW press, Australian Telecommunications
  Regulation the Communications Law Centre Guide
  (2004) an in-depth telecommunications law
  publication now in its third edition
• CLC, Communications Update covering news,
  analysis and opinion on media, communications and
  online issues
• Books Chapters eg The Law Handbook (9th ed),
  Redfern Legal Centre Publishing
• Journal articles eg Telecommunications Journal
  of Australia
• Previous research available at www.comslaw.org.au
• Consumer Information available on
  www.comslaw.org.au www.oznetlaw.net

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Public education awareness projects

• CLC Seminars Conferences
• Guest Speakers at other seminars/conferences
• Funded/commissioned public education awareness
  campaigns
• eg TPA Consumer Trust (current)- Public Education
  and Awareness Campaign Consumer Rights and
  Benefits in the Selection and Transfer of
  Telecommunication Service

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Media Coverage

• Media Releases
• Letters to the Editor/opinion pieces

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NGO Funding in Telecommunications

• Government Grants (DCITA Telecommunications
  Representation Grant)
• Commissioned Projects (Regulators Industry)
• Funds for Independent Research (Philanthropic
  Trusts Government Trusts)
• University/Academic Sector (Victoria University
  UNSW)
• Unfunded Work (a large portion is unfunded)
• Other organisations have membership fees to fund
  activities (eg Australian Consumers Association
  (ACA)). ACA also charges a fee for full access to
  its Choice magazine.

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CLC DCITA Grant

• ACIF Consumer Council Sitting Fees (ongoing)
• One size fits none Australian telecommunications
  household profiles (2002) funded primarily by the
  Department of Communications, Information
  Technology and the Arts Telecommunications
  Consumer Representation and Research program
• Unfair practices and telecommunications consumers
  (2001) funded by the Commonwealth through DCITAs
  Telecommunications Consumer Representation and
  Research Program and the Telecommunications
  Industry Ombudsman.

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CLC Commissioned Research

• Fair Trading Act 1999 (Vic) Compliance Review
  Unilateral Variation Early Termination Clauses
  (2006) commissioned by Consumer Affairs Victoria
  (CAV)
• Mobile Phone Contracts Compliance with Victorian
  Unfair Terms Legislation commissioned by CAV
  (March, 2004)
• Model consumer contract for telecommunications
  (2004) commissioned by the Australian
  Communications Authority (ACA) (now replaced by
  ACMA)
• Telecommunications Consumer Contracts Compliance
  with the ACIF Consumer Contracts Industry
  Guideline (2003) commissioned by the ACA (now
  ACMA)
• Consumer Experiences with Selling Practices
  (1999) commissioned by Australian Communications
  Industry Forum (ACIF)

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CLC Projects funded by Philanthropic/Government
Trusts

• TPA Consumer Trust (administered by ACCC)
  Public Education and Awareness Campaign
  Consumer Rights and Benefits in the Selection and
  Transfer of Telecommunication Service (current)
• Not So Special Telecommunications Contracts,
  Disability and Unfair Practices (2006) funded by
  the Reichstein Foundation
• Counting the cost low income households and
  telecommunications (2002) funded by the Victorian
  Consumer Credit Fund (Consumer Affairs Victoria)
• Mobile matters young people and mobile phones
  (1999) funded by the Victorian Consumer Credit
  Trust and the Federal Government.

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Is funding of NGOs in current regulatory
framework a concern?
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Consumer protection framework

• Case Study
• Unfair Terms in Telecommunications Consumer
  Contracts

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2001 (CLC Research)

• CLC, Unfair practices and telecommunications
  consumers (2001) funded by the Commonwealth
  through DCITAs Telecommunications Consumer
  Representation and Research Program and the
  Telecommunications Industry Ombudsman.

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Unfair practices and telecommunications consumers
(2001)

• The Project examined
• EU Directive and UK legislation on unfair terms
• Australian law
• Australian experience in telecoms and other
  industries

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EU Directive and UK legislation on unfair terms

• Focus on Substance and procedure
• Coverage standard form contracts
• Obligations unfair terms not binding plain
  intelligible drafting
• Annex of particular terms grey list
• Adequate and effective means to prevent continued
  use of unfair terms
• Resulted in UK telecoms contract revisions

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Australian law

• Common law doctrine of unconscionable dealing
• Trade practices and fair trading laws
• Contracts Review Act (NSW)
• Industry-specific regulation

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Australian experience in telecoms and other
industries

• Telecoms TIO, ACCC, DFT/FTT complaints data
  provisions in standard agreements
• Other industries real estate, retirement
  villages, consumer finance
• Current consumer remedies strengths and
  weaknesses

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Unfair practices and telecommunications consumers
(2001)

• The Report provided the following options
• Independent amendment of potentially unfair
  contract terms by industry
• Existing regulatory agencies adopt new strategies
• Amend telecoms-specific regulation code?
  standard?
• Amend Federal and State general consumer
  protection legislation

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2002 (Industry Guideline)

• Australian Communications Industry Forum (ACIF)
  developed an industry guideline on the two topics
  of unfair terms and intelligibility and clarity
  of contract information. The ACIF Consumer
  Contracts Guideline (ACIF G6012002) was
  published in December 2002.

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2003 (CLC Submission toACA on Guideline)

• In early 2003 the Australian Communications
  Authority (ACA now ACMA) sought comment from
  industry and consumers on the operation of the
  Guideline. The CLC submitted its Report on Fair
  Terms in Telecommunications Consumer Contracts
  (2003) (unfunded), which concerned unfair terms
  in mobile phone standard forms of agreement,
  measured against the fairness threshold set by
  the ACIF Consumer Contracts Guideline.

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2003 - CLC Report on Guideline Commissioned by
ACA (now ACMA)

• The CLC reviewed consumer contracts for
  compliance with the requirements of the Consumer
  Contracts Guideline for
• fixed line
• mobile services,
• internet (both dial-up and broadband) services.
• The CLC found that all providers and all types of
  services breached the Guideline.
• See, CLC, Telecommunications Consumer Contracts
  Compliance with the ACIF Consumer Contracts
  Industry Guideline (2003) (published by ACA now
  ACMA)

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ACA Request for Industry Code

• Following the completion of the report, the ACA
  wrote to the ACIF requesting that the ACIF
  develop a Code in relation to consumer contracts
  and present it for registration within 180 days.

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2003 VIC Consumer Law Amendment

• In October 2003, the Fair Trading Act 1999 (Vic),
  was amended so that the use of unfair terms in
  consumer contracts is now prohibited (see Part
  2B).

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2004 CLC Model Contract Commissioned by ACA

• To assist with the development of the Code the
  CLC drafted a Model Consumer Contract for the
  telecommunications industry, covering fixed line
  mobile and internet services. This was presented
  to the ACA on 30 January 2004.
• - see Model consumer contract for
  telecommunications (2004) published by ACA (now
  ACMA)

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2004 Mobile Phone Report by CLC Commissioned by
CAV

• In March 2004, Consumer Affairs Victoria (CAV)
  commissioned the CLC to report on the use in
  Victoria of unfair terms in consumer contracts
  for mobile phone services. The report found that
  there was industry non-compliance with the Fair
  Trading Act 1999 (Vic).

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2006 - CLC Reports Commissioned by CAV

• Fair Trading Act 1999 (Vic) Compliance Review
  Unilateral Variation Early Termination Clauses
  (March 2006) commissioned by Consumer Affairs
  Victoria (CAV)
• Fair Trading Act 1999 (Vic) Compliance Review
  ISP Contracts (scheduled to be completed
  July-August 2006)

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Unfair Terms SFOAs

• The use of SFOAs is an important legal issue for
  unfair terms in telecommunications consumer
  contracts. The interpretation of what the effect
  is of the permitted use of SFOAs pursuant to the
  Telecommunications Act is uncertain. This issue
  is important for consumers as it affects whether
  they provide informed consent particularly when
  the contract is varied.

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