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Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 1)

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Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 1) 1
Telecommunications Act 1997
The AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY makes this Determination under section 99 of the Telecommunications Act 1997.
Dated 5 March 2010
Chris Chapman
[signed]
Member
Member/General Manager
Brendan Byrne
[signed]
 
Australian Communications and Media Authority
Contents
                        1     Name of Determination                                                                         2
                        2     Commencement                                                                                  2
                        3     Definitions                                                                                           2
                        4     Application                                                                                          3
                        5     Object                                                                                                4
                        6     Requirement to implement service capable of barring all premium SMS and MMS services        4
                        7     Requirements if customer requests premium SMS and MMS services to be barred       4
                        8     Requirement to provide customer-convenient service                               5
                        9     Requirements if potential customer requests premium SMS and MMS services to be barred      5
                       10     When mobile carriage service provider must stop barring premium SMS and MMS services       6
                       11     Requirement to give information about barring premium SMS and MMS services           6
                       12     Occasions for giving information to a customer about barring premium SMS and MMS services 7
                       13     Ensuring compliance with this Determination                                         8
 
 
 
1              Name of Determination
                This Determination is the Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 1).
Note   This Determination is made in accordance with:
(a)   paragraph 3.12 (1) (c) of the Telecommunications Regulations 2001; and
(b)   section 4 of the Premium Service Determination 2004 (No. 1).
2              Commencement
                This Determination commences on:
                (a)    1 July 2010; or
                (b)    the day after this Determination is registered;
                whichever is the later. 
3              Definitions
                In this Determination:
Act means the Telecommunications Act 1997.
business day means a day other than a Saturday, Sunday or a public holiday in the Australian Capital Territory.
customer means a person who has an agreement with a mobile carriage service provider for the supply of a public mobile telecommunications service from the mobile carriage service provider to the person or another person.
customer-convenient service has the meaning given by subsection 8(2).
eligible prefix means a prefix of 191, 193, 194, 195, 196, 197 or 199.
first year means a period of one year commencing on the day on which the mobile carriage service provider most recently complied with either of subsection 12 (1) or subsection 12 (3).
mobile carriage service provider means:
                (a)    a carriage service provider that supplies a public mobile telecommunications service; or
               (b)    a carriage service intermediary that arranges for the supply of a public mobile telecommunications service by a carriage service provider.
potential customer means a person who requests that a mobile carriage service provider supply a public mobile telecommunications service to the person or another person.
premium SMS and MMS service means:
                (a)    a carriage service supplied by way of a call to or from a number with an eligible prefix; or
               (b)    a content service supplied by way of a call to or from a number with an eligible prefix.
pre-paid public mobile telecommunications service means a public mobile telecommunications service that is supplied on terms requiring that any payment that may be required to use the service is made before the service is used.
subsequent years means each consecutive period of one year occurring after the expiry of the first year.
Note   The following terms used in this Determination are defined in the Act:
·      carriage service
·      carriage service intermediary
·      carriage service provider
·      content service
·      public mobile telecommunications service.
4              Application
                This Determination applies to a mobile carriage service provider:
                (a)    that supplies a public mobile telecommunications service to a customer; or
               (b)    that proposes to enter into an agreement with a potential customer to supply a public mobile telecommunications service.
5              Object
                The object of this Determination is to protect the interests of customers and potential customers of premium SMS and MMS services by assisting them to control the use of, or expenditure for, public mobile telecommunications services by requiring mobile carriage service providers:
                (a)    to implement a service that enables the barring of the supply of all premium SMS and MMS services to a customer; and
               (b)    to bar all premium SMS and MMS services to a customer if requested to do so by the customer; and
                (c)    to provide a convenient method for making such requests; and
               (d)    to give to customers certain information about the barring of all premium SMS and MMS services.
6              Requirement to implement service capable of barring all premium SMS and MMS services
                The mobile carriage service provider must implement a service that enables the barring of all premium SMS and MMS services in relation to a public mobile telecommunications service supplied by it to a customer.
7              Requirements if customer requests premium SMS and MMS services to be barred
         (1)   This section applies to the mobile carriage service provider if the mobile carriage service provider supplies a public mobile telecommunications service to a customer and the customer makes a request to the mobile carriage service provider to bar all premium SMS and MMS services in relation to the public mobile telecommunications service.        
         (2)   The mobile carriage service provider:           
                (a)    must, as soon as practicable, activate the barring service mentioned in section 6 for the relevant public mobile telecommunications service it supplies to the customer; and
               (b)    must not charge the customer a fee for supplying a premium SMS and MMS service after 6 pm on the business day after the day on which the customer makes the request; and
                (c)    must not charge the customer a fee for barring the premium SMS and MMS services; and
               (d)    must not cease supplying, commence supplying, or fail to supply, any other service to the customer as a consequence of the customer’s request.
         (3)   In this section, a reference to a request from a customer is a reference to a request which is made using a customer-convenient service or any other reasonable means.
8              Requirement to provide customer-convenient service
         (1)   Without limiting subsection 7(3), the mobile carriage service provider must provide a customer-convenient service that assists a customer to request the barring of all premium SMS and MMS services in relation to a public mobile telecommunications service supplied by it to the customer.
         (2)   A customer-convenient service means a service which:     
(a)    ensures that a request mentioned in subsection (1) is received promptly by the mobile carriage service provider; and
(b)    is convenient for the customer to use; and
(c)    does not require the customer to use a postal service or to attend at any location in person; and
(d)    can be accessed by each of the methods by which the mobile carriage service provider ordinarily enables the customer to communicate with the mobile carriage service provider in relation to the customer’s public mobile telecommunications service.
Note   For example, if the mobile carriage service provider ordinarily allows a customer to communicate with it in relation to their public mobile telecommunications service by sending a particular keyword by SMS from the customer’s handset, by making a call to a designated number or by clicking on a button or icon on a designated Wireless Application Protocol (WAP) or internet page, then the mobile carriage service provider must also allow the customer to request the barring of all premium SMS and MMS services by each of those same methods.  
9              Requirements if potential customer requests premium SMS and MMS services to be barred
         (1)   This section applies to the mobile carriage service provider if:
                (a)    a potential customer of the mobile carriage service provider requests the supply of a public mobile telecommunications service in relation to which all premium SMS and MMS services are barred; and
               (b)    the potential customer then becomes a customer of the mobile carriage service provider.
         (2)   The mobile carriage service provider:
                (a)    must supply the customer with a public mobile telecommunications service in relation to which all premium SMS and MMS services are barred; and
               (b)    must not charge the customer a fee for supplying a premium SMS and MMS service; and
                (c)    must not charge the customer a fee for barring the premium SMS and MMS services; and
               (d)    must not cease supplying, commence supplying, or fail to supply, any other service to the customer as a consequence of the request referred to in paragraph (1)(a).
10            When mobile carriage service provider must stop barring premium SMS and MMS services
         (1)   If the mobile carriage service provider is supplying a customer with a public mobile telecommunications service in relation to which all premium SMS and MMS services have been barred at the election of the customer, the mobile carriage service provider must not stop barring those services unless the customer requests that the mobile carriage service provider stop the barring of all premium SMS and MMS services.
         (2)   If a customer makes a request mentioned in subsection (1), the mobile carriage service provider must stop barring all premium SMS and MMS services as soon as practicable after the customer makes the request.    
11            Requirement to give information about barring premium SMS and MMS services
         (1)   The mobile carriage service provider must give the information in subsection (2) to a customer in accordance with section 12.
         (2)   The information is:
                (a)    a description of what premium SMS and MMS services are and how charges for them are incurred;
               (b)    that a customer may request the barring of all premium SMS and MMS services;
                (c)    a description of the methods by which a customer may request the barring of all premium SMS and MMS services;
               (d)    how long it will take for barring to be activated after a customer makes a request;
                (e)    that there is no charge for activating barring;
                (f)    that a customer will not be charged for premium SMS and MMS services after barring is activated;
                (g)    that barring will not affect a customer’s continued use of any service other than premium SMS and MMS services;
                (h)    a description of how, and to whom, a customer may make a complaint about the supply of a premium SMS and MMS service including the availability of any industry dispute resolution mechanisms.          
Giving information in a prominent way
         (3)   The mobile carriage service provider must give the information required by this section in a clear, concise, effective and prominent way.            
Giving information to pre-paid customers
         (4)   The mobile carriage service provider will be taken to have complied with this section if, in relation to a customer to whom the mobile carriage service provider supplies a pre-paid public mobile telecommunications service, the mobile carriage service provider:
                (a)    gives the information in paragraph 11 (2) (b) to the customer; and
               (b)    gives notice to the customer that information about:
(i)                  what premium SMS and MMS services are; and
(ii)                how to bar premium SMS and MMS services;
                        can be obtained by the customer if they access a designated web-page or call a designated number; and
               (c)    makes available to the customer the other information referred to in subsection 11(2) by a method that is made known to customers and is reasonably accessible to them free of charge.
                        Note    For example, the mobile carriage service provider might comply with paragraph 4(b) by sending an SMS message to a customer, who has given their consent to receiving information by that method, to the following effect:
                        “     You can bar all premium SMS and MMS services. For more about these services and barring, phone [insert number] or visit [insert website address].”
12        Occasions for giving information to a customer about barring premium SMS and MMS services
On commencement of this Determination
(1)     The mobile carriage service provider must give the information in subsection 11 (2) to each customer to whom it supplies a public mobile telecommunications service in relation to which all premium SMS and MMS services are not barred by the deadline set out in subsection (2).
         (2)   For the purposes of subsection (1) the deadline is 30 days after the commencement of this Determination unless, before the expiry of that 30 days, the mobile carriage service provider initiates a communication with the customer in the ordinary course of its business in which case the deadline in relation to that customer is the time at which that communication takes place.
When a public mobile telecommunications service is acquired
         (3)   The mobile carriage service provider must give the information in subsection 11 (2) to a customer no later than 5 business days after entering into an agreement with that person for the supply of a public mobile telecommunications service in relation to which all premium SMS and MMS services are not barred.
Ongoing provision of information
         (4)   The mobile carriage service provider must give the information in subsection 11 (2) to a customer to whom it is supplying a public mobile telecommunications service in relation to which all premium SMS and MMS services are not barred, at least once in each period of:
                (a)    3 months in the first year; and
               (b)    6 months in all subsequent years.          
When a customer receives a bill
         (5)   The mobile carriage service provider must give:
                (a)    the information in paragraph 11 (2) (b); and
               (b)    a description of one or more of the methods mentioned in paragraph 11 (2) (c),
                to a customer when the mobile carriage service provider gives a bill to the customer that contains a charge for a premium SMS and MMS service.
When a customer makes an inquiry or complaint
         (6)   The mobile carriage service provider must give the information in paragraph 11 (2) (b) to a customer as soon as practicable after receiving an inquiry or complaint from the customer, if the inquiry or complaint relates to:
                (a)    the financial risks associated with premium SMS and MMS services; or
               (b)    the charges associated with premium SMS and MMS services; or
                (c)    whether the customer consented to receive a premium SMS and MMS service; or
               (d)    the barring of premium SMS and MMS services.
13            Ensuring compliance with this Determination
         (1)   The ACMA may make enquiries about the mobile carriage service provider’s compliance with this Determination.
                     Note   The ACMA has information gathering powers under Part 27 of the Act.
         (2)   If the ACMA determines that:
                (a)    the customer-convenient service provided by the mobile carriage service provider under this Determination; or
               (b)    any information the mobile carriage service provider gives or gave to a customer under this Determination; or
                (c)    any method by which the mobile carriage service provider gives or gave information to a customer under this Determination;
                did not comply with this Determination (including, in the case of the giving of information, by way of it being provided outside the timeframes required by this Determination), the ACMA may give a notice to the mobile carriage service provider setting out any or all of the following:
               (d)    how the customer-convenient service provided by the mobile carriage service provider must be improved; 
                (e)    the specified information the mobile carriage service provider must give to customers;
                (f)    the methods by which the mobile carriage service provider must give specified information to customers;
                (g)    when the mobile carriage service provider must give specified information to customers.
         (3)   The mobile carriage service provider must comply with a notice given to it under subsection (2).
 
Note
1.         All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.