Standard form telecommunications services agreements

Too often carriage service providers neglect to ensure that their standard form of service agreement (SFA) comply with the telecommunications law regulatory regime.   This can lead to consumer complaints to the Telecommunications Industry Ombudsman (TIO) and orders for compensation to be paid to the consumer and fines.   Below we set out some of the key requirements that need to be complied with for carriage service providers comply with the telecommunications law.

Regulatory framework

There are over 500 telecommunications carriers and over 800 carriage service providers in Australia.   Each one is subject to certain obligations under the Telecommunications Act 1997 (Cth) (Act), Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth), Competition and Consumer Act 2010, Schedule 2 The Australian Consumer Law, C628:2019 Telecommunications Consumer Protections Code (TCP Code) and Telecommunications (Consumer Complaints Handling) Industry Standard 2018 in respect to what must be in its SFA.

Information for consumers

Carriage service providers must ensure that any information provided or made available to consumers, including the SFA is clear, accurate, free of material omissions, relevant, current, readily available, and, in cases where information is provided, timely.

Under the TCP Code, ‘Readily available’ includes:

• available via a search tool on the Supplier’s website using common search terms;
• from the homepage of a Supplier’s website; or
• by request from consumer service representatives in a format or method of access appropriate for a particular consumer.

Misleading consumers in one of the main complaints against carriage service providers and is an area with high visibility and reputational risk.   For example, internet provider iiNet Limited and Internode Pty Ltd had to compensate more than 11,000 consumers who could not reach the internet speeds they were promised in their NBN contracts, following an investigation by the Australian Competition and Consumer Commission (ACCC) in 2018.

Therefore all advertising, marketing and sales material must be carefully checked for accuracy.

Critical Information Summary (CIS)

The SFA must include the provision of a CIS in a separate document no longer than 2 A4 pages on the carriage service provider’s website to allow consumers to compare offers that includes the following information:

• a description of the telecommunications service to be provided under the offer, including inclusions;
• the minimum monthly charge payable under the offer (where calculable);
• the maximum monthly charge payable under the Offer (where calculable);
• the maximum charge payable for early termination of the offer;
• the minimum term applicable in respect of the telecommunications product set out in the offer;
• early termination fees;
• details of bundling services;
• where applicable, the exclusions and any important conditions, limitations, restrictions or qualifications for that offer, such as mobile data auto top-ups; and
• a link to the area on the carriage service provider’s website where the consumer can obtain call and data usage information or instructions.

These are just a small number of the CIS requirements and careful attention must be paid to ensure that all the requirements for a compliant CIS are included.

Supplier identity

If a carriage service provider does not own the network(s) over which they are supplying the telecommunications service, they must provide the consumer with the name of the principal carrier(s) whose network(s) is/are used to provide the telecommunications services and ensure it is clear to the consumer that the carriage service providers is responsible for the service to the consumer and is not affiliated or related to the principal Carrier(s) unless it in fact is.

Carriage service provider resellers

Resellers of telecommunications services are considered carriage service providers under section 87(5) of the Act and are therefore bound by the same legal obligations as all other carriage service providers.

Many resellers do not realise this and fall foul of the law.   A further area a reseller must cover is their supply agreement.   For example, a reseller may resell Telstra or AAPT services, in which case the reseller must ensure that its SFA contains the relevant service schedules and CISs and is back to backed with its reseller agreement.   If the reseller takes on more liability and or obligations to the consumer than the supplier takes on to the reseller, the reseller will have no upstream recourse against the supplier and be liable to perform those obligations that it may not be able to do which could result in a complaint.

Complaints handling policy

Under the Telecommunications (Consumer Complaints Handling) Industry Standard 2018 (Complaints Standard), service providers must also include a complaints handling policy which forms part of their SFA.

The Complaints Standard is very prescriptive, like the TCP Code, and requires carriage service providers to clearly document the complaints handling process and consumers rights to make a complaint and follow strict deadlines for responding to and resolving complaints.

Fair use and acceptable use policies

If a carriage service provider imposes fair use and acceptable use as conditions for using the service, it must document these and make them available on its website and ensure that they form part of the SFA.

Takeaways

Telecommunications law imposes many compliance obligations requirements for SFAs to be legally complaint.  The failure to comply with these requirements can have adverse financial and reputational risk for carriage service providers.   Therefore it is important to have SFAs drafted or reviewed by a telecommunications lawyer

Links and further references

Legislation

Telecommunications Act 1997 (Cth)
Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth)
Competition and Consumer Act 2010, Schedule 2 The Australian Consumer Law
C628:2019 Telecommunications Consumer Protections Code
Telecommunications (Consumer Complaints Handling) Industry Standard 2018

Cases

ACCC customer compensation order against iiNet and Internode

Further information about telecommunications law

If you need advice on drafting or complying with a carriage service providers obligations under the Telecommunications Law feel free to contact me for a confidential and obligation free discussion.

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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