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Telecommunications (Consumer Protection and Service Standards) Bill 1998

Part 7 Protection for residential customers against failure by carriage service providers to provide standard carriage services

   

134   Simplified outline

                   The following is a simplified outline of this Part:

•      The ACA may determine that certain payments received by a carriage service provider from residential customers are protected payments.

•      The ACA may formulate schemes aimed at ensuring that if:

               (a)     a residential customer of a carriage service provider makes a protected payment to the provider; and

               (b)     the provider fails to supply a standard telephone service to the customer;

       the customer is protected.

•      A protection scheme may be enforced by the Federal Court on the application of the ACA or a residential customer.

135   Scope of Part

             (1)  This Part applies to a carriage service provider if the provider supplies, or proposes to supply, a standard telephone service to residential customers.

             (2)  A carriage service provider is exempt from this Part if the provider was a carrier (within the meaning of the Telecommunications Act 1991 ) immediately before 1 July 1997.

             (3)  The ACA may, by notice in the Gazette , declare that a specified provider is exempt from this Part. The declaration has effect accordingly.

Note:          Providers may be specified by name, by inclusion in a particular class or in any other way.

             (4)  In deciding whether a person should be exempt from this Part, the ACA must have regard to the following matters:

                     (a)  the duration of the prior period (if any) during which the person carried on business in Australia as a carriage service provider;

                     (b)  the scale of the person’s prior operations in Australia as a carriage service provider;

                     (c)  the person’s business record;

                     (d)  if the person is a partnership—the business record of each of the partners;

                     (e)  if the person is an incorporated company—the business record of each individual, by whatever name called and whether or not a director of the company, who is concerned, or takes part, in the management of the company.

             (5)  Subsection (4) does not, by implication, limit the matters to which the ACA may have regard.

136   Standard residential customer

             (1)  For the purposes of this Part, if a residential customer, or a proposed residential customer, of a carriage service provider is supplied, or proposed to be supplied, with a standard telephone service by the provider, then:

                     (a)  the customer is a standard residential customer of the provider; and

                     (b)  the service is a standard carriage service .

             (2)  Subsection (1) does not apply to a standard telephone service if:

                     (a)  the service is a public mobile telecommunications service; and

                     (b)  the service is neither supplied, nor proposed to be supplied, to the customer in fulfilment of the universal service obligation.

137   Protected payments

             (1)  The ACA may make a written determination that a specified payment made, or liable to be made, to a carriage service provider by a standard residential customer of that provider is a protected payment for the purposes of this Part. The determination has effect accordingly.

Note:          Payments may be specified by name, by inclusion in a particular class or in any other way.

             (2)  The payment must be received, or proposed to be received, by the provider directly or indirectly in connection with its business as a carriage service provider.

             (3)  The following are examples of payments that may be specified in the determination:

                     (a)  payments for line rental;

                     (b)  payments for equipment rental;

                     (c)  payments by way of connection fees;

                     (d)  a pre-payment for a standard carriage service.

             (4)  For each protected payment, the determination must specify, or specify a means of ascertaining, a period for the purposes of this subsection. That period is called the minimum service period for the payment.

             (5)  The minimum service period for a protected payment:

                     (a)  must begin when the payment is made; and

                     (b)  must not run for longer than 2 years.

             (6)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

138   Compliance with protection schemes for protected payments

             (1)  Before demanding or receiving a protected payment, a carriage service provider must give the ACA a written election to be bound by a specified scheme formulated under this Part.

             (2)  If a carriage service provider gives the ACA such an election, the provider is bound by, and must comply with, the scheme specified in the election.

             (3)  If an election under this section is in force in relation to a particular scheme (the original scheme ), the provider may give the ACA a written notice varying the election by omitting the original scheme and substituting another scheme formulated under this Part. The variation takes effect at the time specified in the notice.

             (4)  Despite the variation, the original scheme continues to apply, in relation to protected payments made before the variation took effect, as if the variation had not been made.

139   Protection schemes for protected payments—alternative supply of standard carriage services

             (1)  The ACA may, by written instrument, formulate a scheme that requires a carriage service provider bound by the scheme to enter into and maintain a legally enforceable arrangement aimed at ensuring that, if:

                     (a)  a residential customer of the provider makes a protected payment to the provider; and

                     (b)  at any time during the minimum service period for that payment, the provider fails to supply standard carriage services to the customer;

the customer:

                     (c)  is supplied, during the remainder of the period, with standard carriage services that are equivalent to the standard carriage services that the provider has not supplied; and

                     (d)  is not required to pay more for the supply of those equivalent services than the customer would have had to pay had the provider supplied them.

             (2)  A scheme formulated under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

140   Protection schemes for protected payments—third party guarantee

             (1)  The ACA may, by written instrument, formulate a scheme that:

                     (a)  makes a carriage service provider that is bound by the scheme liable, in the event that:

                              (i)  a residential customer of the provider makes a protected payment to the provider; and

                             (ii)  at any time during the minimum service period for that payment, the provider fails to supply standard carriage services to the customer;

                            to reimburse the payment on a pro-rata basis in proportion to that part or parts of the period during which the provider fails to supply the services to the customer; and

                     (b)  requires the provider to obtain a guarantee from a third person in respect of the provider’s discharge of that liability.

             (2)  An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

141   Protection schemes for protected payments—insurance cover

             (1)  The ACA may, by written instrument, formulate a scheme that:

                     (a)  makes a carriage service provider that is bound by the scheme liable, in the event that:

                              (i)  a residential customer of the provider makes a protected payment to the provider; and

                             (ii)  at any time during the minimum service period for that payment, the provider fails to supply standard carriage services to the customer;

                            to reimburse the payment on a pro-rata basis in proportion to that part or parts of the period during which the provider fails to supply the services to the customer; and

                     (b)  requires the provider to take out and maintain an insurance policy to indemnify residential customers against a total or partial failure to discharge that liability.

             (2)  An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

142   Protection schemes for protected payments—holding of payments in trust accounts

             (1)  The ACA may, by written instrument, formulate a scheme that:

                     (a)  makes a carriage service provider that is bound by the scheme liable, in the event that:

                              (i)  a residential customer of the provider makes a protected payment to the provider; and

                             (ii)  at any time during the minimum service period for that payment, the provider fails to supply standard carriage services to the customer;

                            to reimburse the payment on a pro-rata basis in proportion to that part or parts of the period during which the provider fails to supply the services to the customer; and

                     (b)  requires the provider to hold protected payments it receives in trust accounts; and

                     (c)  prohibits the provider from transferring any or all of the money in such an account to its beneficial ownership except in accordance with the draw-down rules set out in the scheme.

             (2)  An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

143   Waiver of protection by customers

             (1)  A scheme formulated under this Part may provide for standard residential customers of a carriage service provider to waive their protection and rights under the scheme in relation to a particular protected payment made to the provider.

             (2)  If such a waiver is made, the provider is not bound by, and need not comply with, the scheme in relation to that payment.

             (3)  A waiver must be made in accordance with the rules set out in the scheme concerned.

             (4)  Rules mentioned in subsection (3) may require a carriage service provider to inform a customer about the consequences of a waiver.

             (5)  Subsection (4) does not, by implication, limit the matters that may be dealt with by:

                     (a)  a code registered under Part 6 of the Telecommunications Act 1997 ; or

                     (b)  a standard under Part 6 of the Telecommunications Act 1997 .

144   Incidental rules

             (1)  A scheme formulated under this Part may require carriage service providers to comply with such ancillary or incidental rules (if any) as are set out in the scheme.

             (2)  Those rules include (but are not limited to) requiring carriage service providers to inform their standard residential customers about matters relating to the implementation of the scheme.

145   Enforcement of protection schemes

             (1)  This section applies if a carriage service provider is bound by a scheme formulated under this Part.

             (2)  If:

                     (a)  the ACA; or

                     (b)  a standard residential customer of the provider;

thinks that the provider has:

                     (c)  failed to discharge a liability of the provider under the scheme; or

                     (d)  otherwise breached the scheme;

the ACA or the customer may apply to the Federal Court for an order under subsection (3).

             (3)  If the Federal Court is satisfied that the provider has:

                     (a)  failed to discharge a liability of the provider under the scheme; or

                     (b)  otherwise breached the scheme;

the Court may make all or any of the following orders:

                     (c)  an order directing the provider to discharge a liability under the scheme;

                     (d)  an order directing the provider to comply with the scheme;

                     (e)  an order directing the provider to compensate any person who has suffered loss or damage as a result of the breach;

                      (f)  any other order that the Court thinks appropriate.

             (4)  The Federal Court may discharge or vary an order granted under this section.

             (5)  This section does not, by implication, limit other remedies.

             (6)  A reference in this section to a carriage service provider includes a reference to:

                     (a)  in a case where the provider is an individual or a partnership—the provider’s trustee in bankruptcy; or

                     (b)  in a case where the provider is a body corporate or a partnership—each of the following:

                              (i)  a receiver, receiver and manager, or other controller, of property of the body or partnership;

                             (ii)  an administrator of the body or partnership;

                            (iii)  an administrator of a deed of arrangement entered into by the body or partnership;

                            (iv)  a liquidator or provisional liquidator of the body or partnership;

                             (v)  a trustee or other person administering a compromise or arrangement made between the body or partnership and any other person or persons.