Telecommunications Universal Service Obligation (Payphone Complaint Rules) Determination 2011

Link to law: https://www.comlaw.gov.au/Details/F2011L02704

 
Commonwealth of Australia
 
Telecommunications (Consumer Protection and Service Standards) Act 1999
 
Telecommunications Universal Service Obligation (Payphone Complaint Rules) Determination 2011
 
I, STEPHEN michael CONROY, Minister for Broadband, Communications and the Digital Economy, make the following determination under subsection 12EH(1) 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 Determination is the Telecommunications Universal Service Obligation (Payphone Complaint Rules) Determination 2011.
2     Commencement
This Determination commences on 1 January 2012.
3     Definitions
In this Determination, unless the contrary intention appears:
ACMA means the Australian Communications and Media Authority.
Act means the Telecommunications (Consumer Protection and Service Standards) Act 1999.
payphone complaint has the meaning given by subsection 5(3) of this Determination.
payphone complaint process has the meaning given by subsection 5(1) of this Determination.
payphone complaint reference number has the meaning given by section 9 of this Determination.
payphone consultation document has the meaning given by section 13 of the Telecommunications Universal Service Obligation (Public Consultation on the Location or Removal of Payphones) Determination 2011.
working day means a day which is not a Saturday, Sunday or public holiday in the place in which any relevant act is to be or may be done.
Note:      Several other words and expressions used in this Determination have the same meaning as in the Act (see subsection 13(1) of the Legislative Instruments Act 2003). For example:
·         payphone
·         primary universal service provider
·         universal service obligation
 
4      Application of this Determination
This Determination applies to a primary universal service provider with respect to a payphone that is:
                                                          (a)      either:
(i)     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; or
(ii)   proposed to be situated at a site specified in such a register; 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 complaint rules
Division 1 Payphone complaint process
5     Primary universal service provider must develop payphone complaint process
(1)   A primary universal service provider must develop a process for the resolution of payphone complaints (payphone complaint process).
(2)   The payphone complaint process must comply with the rules set out in this Determination.
(3)   For the purposes of subsection (1), a payphone complaint is a complaint that is:
                                                          (a)      about a decision of the primary universal service provider on the location or removal of a payphone; and
                                                         (b)      received by the primary universal service provider;
(i)     by at least one of the means provided in subsection 8(2); and
(ii)   within 20 working days from when the primary universal service provider gave its written notification of a final decision about the location or removal of the particular payphone to which the complaint relates.
(4)   In the circumstance where a complaint is received orally by the primary universal provider, the provider must ensure that the details of the complaint are recorded in writing as soon as practicable after the oral complaint was made.
(5)   For the avoidance of doubt, the payphone complaint process is not required to provide for the resolution of:
                                                          (a)      a complaint in relation to a payphone that is provided by the primary universal service provider other than for the purpose of complying with the universal service obligation; or
                                                         (b)      a complaint in relation to a payphone that is not the responsibility of the primary universal service provider.
(6)   For the purposes of paragraph (5)(a), a payphone is to be taken to be provided by a primary universal service provider for the purposes of complying with the universal service obligation even if the primary universal service provider has entered into, or will enter into an arrangement, with another provider for the supply, management, operation or maintenance of the payphone.
6     Review by the ACMA of payphone removal decision
Where a payphone complaint is received by a primary universal service provider in relation to a final decision to remove a payphone, the payphone complaint process must provide for review of that decision by the ACMA.
Note:       The ACMA will only receive applications for review of a final decision to remove a payphone if a complaint in relation to that decision has been resolved by the primary universal service provider. 
7     Complaint process must be made publicly available
(1) A primary universal service provider must make details of the payphone complaint process publicly available and accessible to all persons who may wish to make a complaint about the location or removal of a payphone, including by publishing details of the payphone complaint process prominently on the first page of the primary universal service provider’s section of its website relating to payphones.
Note:      The requirement to make details of the complaint process publicly available is in addition to requirements to provide notice of the complaint process under subsections 5(3), 7(2), 10(3), 15(3) and 17(2) of the Telecommunications Universal Service Obligation (Public Consultation on the Location and Removal of Payphones) Determination 2011.
(2) For the purposes of subsection (1) above, details of the payphone complaint process must include the following:
                                                          (a)      a statement of the period within which a person who disagrees with the primary universal service provider’s final decision on a payphone removal or location may make a complaint  (being 20 working days from when the primary universal service provider provided its written notification of the final decision); and
                                                         (b)      a statement of the period within which a person, who is dissatisfied with the primary universal service provider’s response to their complaint in relation to a final decision regarding a payphone removal proposal, may lodge an objection with the ACMA (being 10 working days from when the primary universal service provider provided its written response to the complaint).
Note:      The primary universal service provider’s requirements to provide notification of a final decision regarding a payphone removal or location are set out under subsections 7, 16 and 17 of the Telecommunications Universal Service Obligation (Public Consultation on the Location and Removal of Payphones) Determination 2011.
 
Division 2 Receiving complaints
8     Means for receiving complaints
(1)   A primary universal service provider must provide low cost or free, and flexible means by which a complaint may be made orally or in writing by any person who wishes to make a complaint about the location or removal of a payphone.
Examples
1.       Flexible means by which a complaint may be made may include the ability to make a complaint by a range of means, such as by letter, e-mail, telephone or internet web page form.
2.       Low cost means by which a complaint may be made include the ability to make a complaint by means of writing a letter (for the cost of postage) to a specified address.
3.       Low cost or free means by which a complaint may be made include the ability to make a complaint by telephone (freephone or local rate number).
(2)   A primary universal service provider must make details of the means by which a payphone complaint may be made publicly available, including by:
                                                                (a)                        publishing details of those means prominently on the first page of the primary universal service provider’s section of its website relating to payphones;
                                                               (b)                        maintaining freecall general service contact numbers and multi-lingual enquiry lines by which persons who may wish to make a written complaint can obtain information as to the means by which a complaint may be made;
                                                                (c)                        maintaining general service contact numbers and multi-lingual enquiry lines (accessible for free or for low cost) to enable persons who may wish to make an oral complaint to do so; and
                                                               (d)                        publishing details of those freecall general service contact numbers and multi-lingual enquiry lines on the first page of the primary universal service provider’s section of its website relating to payphones.
(3)   If a person requests assistance in making a payphone complaint, a primary universal service provider must provide that person with any reasonable assistance that the primary universal service provider is able to provide to enable that person to make a complaint.
Note:         Reasonable assistance may include a response from a primary universal service provider to a request for assistance from a member of the public that provides:
·         advice on the internal processes the primary universal service provider undertakes in determining a payphone location or removal;
·         information from the public that would assist the primary universal service provider in undertaking a review of  a payphone location or removal decision;
·          the deadline (date and time) by which a member of the public should provide any information to the primary universal service provider;
·         the form in which a complaint may be made, eg oral or written (electronic and non-electronic); and
·         the contact details/address to which a complaint may be sent or directed, as the case may be.
 
9     Allocation of payphone complaint reference number
Where a primary universal service provider receives a payphone complaint, the primary universal service provider must allocate a unique reference number to that complaint (payphone complaint reference number).
10  Primary universal service provider must acknowledge receipt of complaint
A primary universal service provider must provide a person who has made a payphone complaint with an acknowledgement of receipt of the complaint within 5 working days of receiving the complaint.
Division 3 Resolving complaints
11  Principles for the resolution of payphone complaints
A primary universal service provider must investigate and resolve all payphone complaints in an efficient, fair and timely way.
12  Response to complaint
(1)   A primary universal service provider must provide a response (which includes the payphone complaint reference number that has been allocated to the complaint) to a payphone complaint within 20 working days of receiving the complaint.
(2)   The response must be provided in writing.
(3)   If the primary universal service provider is satisfied that no further action is required to be taken to investigate or resolve the complaint, the response must state the reasons why the primary universal service provider is satisfied that no further action is required to be taken.
(4)   If the primary universal service provider proposes to take further action to investigate or resolve a complaint, the response must state what further actions are proposed to be taken and the reasons why the primary universal service provider considers that those further actions should be taken.
(5)   If the primary universal service provider proposes to take further action to investigate or resolve a complaint, the primary universal service provider must continue to keep the person who made the complaint reasonably informed of the steps that are being taken and the outcome of those steps.
(6)   If a payphone complaint relates to a final decision to remove a payphone, the response must state that the person who made the complaint may apply to the ACMA for a review of that decision.
13  Review of payphone removal decision by the ACMA
(1)   If a person has made a payphone complaint in relation to a final decision by a primary universal service provider to remove a payphone, and the person has applied to the ACMA for a review of the decision, the primary universal service provider must comply with directions that the ACMA makes in relation to the decision.
(2)   If the ACMA notifies a primary universal service provider that it has received a written notification from a person that they object to the removal of a payphone, and that the ACMA intends to conduct a review of the primary universal services provider’s decision regarding the payphone removal, the primary universal service provider must, within 10 working days of receipt of the ACMA’s notice, provide the ACMA with the following information:
                                                                (a)                        complete copies of each submission received by the primary universal service provider in relation to the proposal for the removal of the payphone, however, in the case where the complainant is a natural person, and has not provided their consent to the disclosure of their personal information (as contained in the submission), a copy of the submission with the personal information redacted is to be provided;
                                                               (b)           where the complaint is received:
(i)     in writing – complete copies of each complaint received by the primary universal service provider in relation to the decision; or
(ii)   where the complaint is received orally – a complete copy of the primary universal service provider’s written record of the complaint;
                                                                (c)                        the primary universal service provider’s responses to the complaints, however, in the case where the complainant is a natural person, and has not provided their consent to the disclosure of their personal information (as contained in the complaint and response) a copy of the complaint (or record of complaint, as the case may be) and related response with the personal information redacted is to be provided;
                                                               (d)                        the primary universal service provider’s reasons for removing a payphone, including information regarding which criteria (as set out in paragraph 20(1)(b) of the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011), support(s) the payphone removal proposal;
                                                                (e)                        details of what public consultation has occurred in respect of the payphone removal proposal;
                                                                (f)                        a copy of the payphone consultation document;
                                                               (g)                        if the primary universal service provider considers that maintaining the payphone at the payphone site would not deliver a net social benefit to the local community, information about:
(i)     the primary universal service provider’s views on the commercial viability of maintaining the payphone;
(ii)   call usage patterns for the payphone for the most recent 12-month period;
(iii)  the primary universal service provider’s views as to whether the revenues from the payphone would be expected to cover the depreciation and maintenance costs of maintaining the payphone on an annual basis;
(iv)  the primary universal service provider’s views as to the extent to which funding (if any) provided to the primary universal service provider to install or maintain the payphone will contribute to covering the depreciation and maintenance costs of maintaining the payphone on an annual basis; and
(v)   the primary universal service provider’s views on all the circumstances relating to the location of a payphone at the payphone site; and
                                                               (h)                        if the primary universal service provider considers that it cannot continue to reasonably operate the payphone at the payphone site, information about;
(i)     whether the provider continues to hold, or is able to obtain, relevant approvals for the operation of a payphone at the payphone site;
(ii)   whether the provider is able to obtain relevant approvals for access to the payphone site; and
(iii)  the safety of the public, users of the payphone and the provider’s employees and agents.
(3)   For the avoidance of doubt, the obligations set out in section 13 do not apply in relation to the:
                                                                (a)                        temporary removal of a payphone from a site in the circumstances set out in subsection 20(8) of the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011; or
                                                               (b)                        substitution of a payphone supplied by the primary universal service provider with a payphone supplied by the Commonwealth or a Commonwealth Agency (such as the Telecommunications Universal Service Management Agency).
Note :     See section 12EI of the Act concerning the ACMA’s power to give directions about the removal of payphones.
(4)   A primary universal service provider is not required to provide the information specified under paragraphs (2)(f) and (2)(g) above in relation to a proposal to remove a payphone in the circumstance where there would be at least another payphone remaining at the site at which the payphone (which is the subject of the removal proposal) is located.
14  Payphone must not be removed if decision is subject to a complaint or objection
The primary universal service provider must not remove a payphone which is the subject of a final decision by a primary universal service provider unless:
                                                                (a)                        20 working days have lapsed from when the primary universal service provider gave its written notification of the final decision regarding the proposal and no complaints were  received by a primary universal service provider during that period; or
                                                               (b)                        in the case where a complaint has been made to the primary universal service provider, 10 working days have lapsed from when the primary universal service provider gave its written response to the complaint in respect of final decision regarding a payphone removal proposal and no written objection was made to the ACMA (within the notified period) in respect of the primary universal service provider’s final decision; or
                                                                (c)                        where the ACMA has completed its review of the primary universal services provider’s decision (in response to a written notification from a person that they object to the removal of a payphone), and the ACMA has provided its final decision to the objection, and that decision is to allow the payphone to be removed.
Note 1:       See section 12EI of the Act regarding the ACMA’s power to give directions about the removal of payphones.
Note  2:      The timeframe within which the ACMA is expected to make a decision with respect to an objection  to the removal of a payphone is 45 calendar days from notification of the objection. However, this timeframe is general only, and may be extended by the ACMA.
Division 4 Miscellaneous
15  Primary universal service provider must retain material regarding payphone complaint
A primary universal service provider must retain all materials collected and recorded in relation to a payphone complaint for a period of at least two years following the resolution of the complaint.
16  Primary universal service provider must not impose fees, charges or penalties
A primary universal service provider must not impose any fees, charges or penalties in relation to the receipt or handling of a payphone complaint upon a person who has made, or may wish to make, a payphone complaint.
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