CARRIAGE QUESTION BY PANDELIS PETER TILIAKOS z3253182 Question 1 Foreword This scenario typically describes the situation where

Hayphone is attempting gain legal advice on the infrastructural and service developments in the Hay area. The basis of completing this question requires classifying Hayphone as a carrier or carriage service provider. On the basis of numerous assumptions on the facts, Hayphone may be considered either a carrier (if they invest in a network unit) or a carriage service provider (using Telphones towers). From a reasonable point of view, this analysis will imply Hayphones status as a carriage service provider but nonetheless a short description will be allocated to describing the legal/regulatory requirements imposed on carrier providers if Hayphone invested in a network unit and transmitting its own services. This will be showcased at the end of the analysis as a sidenote.

1) Legal/Regulatory Requirements as Carriage Service Provider With regards to the factual scenario presented by Hayphone it can be argued that the newly formed company should be categorised as a carriage service provider. Under section 7 of the Telecommunications Act 1997 (TA), a carriage service is one which carries communications by means of guided and/or unguided electromagnetic energy. With regards to this, it is clear that Hayphone would fall under s86 and 87(1)(a) TA as an organisation which is proposing to supply a listed carriage service to the public (s88 TA) by means of using a network unit owned by a carrier. The company would thus fulfil the criterion of s88 TA as its proposed service will communicate between 2 or more users and consists of individuals outside the companys immediate circle (s23 TA). In this sense the company would act as an intermediary (s87(5) TA) between the carrier and a 3rd party. In accordance with the common law principles established in Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd (2000), carriage service providers are under an obligation to adhere to a standard regulatory scheme which governs their formulation and subsequent commercial practices: (i) Standard Service Provider Obligations Schedule 2 TA Compliance with the Act Hayphone will be obliged to adhere to the statutory provisions set out in the Telecommunications Act 1997 as well as those expressed in the Telecommunications (Consumer Protection and Service Standards) Act 1999 etc. Compliance with Service Provider Rules Within Schedule 2 of the TA, Hayphone would be obliged to comply with service provider rules and any service provider determinations under s99. Adherence to the rules is a prerequisite under s101 with the potential of breach penalties (s102) and formal warnings (s103). Operator Services As the Hay area is experiences poor voice service it may be assumed that Hayphone will provide telephony and internet services. For this reason, the company must make operator service available to each end user. 2

Directory Assistance Services Hayphone must make directory assistance services available to each end user either providing it itself or through a third party.

Integrated Public Number Database Must give Telstra any information required for the maintenance of an IPND. Itemised Billing Standard itemised bill consisting of all phone calls made by users.

(ii)

Consumer and Community Obligations

Part 6 of the TA, and specifically s117 and 123 require Hayphone to comply with any industry codes or standards registered with ACMA. Section 128(3) provides civil penalty provisions by which may be handed down if the company fails to adhere to these rules. (iii) Obligations under the TCPSS Act Telecommunications Industry Ombudsman Scheme Part 6 of the TCPSS Act and specifically s126 requires Hayphones compliance with the IOS as a result of its desire to provide end users with internet access and standard telephone services. Emergency Service Arrangements Section 146 of the TCPSS Act allows ACMA to make arrangements for the provision of direct access by end users to free of charge emergency call services. Customer Service Guarantee Part 5 of the TCPSS Act allows ACMA to make performance standards with regards to customer service under s113. Continued Access to untimed local calls Under s103 of the TCPSS, Performance Standards Section 12EB of the TCPSS Act allows the all untimed local calls must be free of charge. Minister to make written declarations highlighting the standards that must be followed by Hayphone in their commercial dealings. Contribution to USO Section 9 requires that services provided by Hayphone are reasonably accessible to consumers within their geographic confines.

(iv)

Competition Regulation

Under the Trade Practices Act 1974, with specific reference to Parts XIB and XIC, Hayphone will be under a general obligation to adhere to provisions that regulate anti-competitive conduct within the telecommunications industry. Part XIB provides the ACCC to issue competition notices to telecommunications corporations if anti competitive conduct is alleged (s45, 45B, 46, 47 or 48). Part XIC provides a specific access regime within the telecommunications industry and is aimed at protecting the long term interests of end users (s152AB TPA). This section specifically aims at encouraging efficient use of infrastructure, promoting any-to-any connectivity and competition in markets for listed services. (v) Additional Regulatory Requirements Part 13 section s270 of the TA prohibits carriage service providers from realising information in the course of business so as to ensure a protection of communication. Section 311 requires carriage service providers to do all within their Hayphone is required to supply service for defence purposes or for Adhere to technical standards (s373 TA), standard agreements powers to remove the management of natural disasters: s333 TA. (s478) as well as provide the numbering of carriage services, their use and number portability (454 TA).

2) Legal/Regulatory Requirements as Carrier Provider Under s42 TA, if Hayphone invested in a network unit, the company could be considered a carrier provider which disseminates telecommunication services to the public (s44). With regards to s25-7 & 30, the company could integrate single or multiple line links to distribute its services to distinct places (s36) within a specified network boundary (s7) which would be the area of Hay. Subject to s52ff and the requisite licensing conditions that need to be satisfied, alternate licensing conditions under Schedule 1 s61 must be adhered to. These include access to facilities/information and operational independence. Hayphone must not contravene carrier licence conditions (s68-9) and other regulatory objectives under the TPA XIC (s62). Legislative requirements, including contribution to USO, membership to TIO and provision of emergency services are similar to those discussed above in the carriage service provider section. Alternatively, obligations under the TCPSS Act, competition regulation and additional regulatory requirements discussed above similarly apply for Hayphone as a carrier provider.

3) Legal/Regulatory Requirements for providing Infrastructure a. Broadband through fibre/cable connection The initial standpoint of Hayphone was providing fast broadband sooner rather than later by installing fibre optic cables which have huge bandwidths. In addition to this positive criterion, fibre connection alternatively provides an extremely quick service with little interference1. In order for Hayphone to begin installation of cable networking to provide such a service numerous legislative requirements and obligations must be adhered to. Part 20A, and specifically s372A, provides numerous obligations when deploying and/or installing fibre ready facilities to building lots or units2. The technical requirements for the proposed infrastructure development can be explored in Part 21 (s373) TA which acts as the guideline for prospective installation of cables etc. Section 20 &21 TA act as a catch all phrase for the cabling that is required by Hayphone to install the necessary equipment and provide the service. The cabling process consequently is regulated under ACMAs power to formulate technical standards which must be adhered to (s376). These include network integrity (s376(2)(a), network interoperability (s376(2)(d) and health/safety requirements (s376(2)(b). Division 6 highlights the procedural course of action Hayphone must undergo to gain a connection permit, as well as the subsequent rules it must abide by to negate civil penalties: Under s390, Hayphone is required to apply for a connection permit as well as provide written submission as to the reasons why this connection is desired. Section 394 allows ACMA to take into consideration the application. Specified conditions may be set under the connection permit through s398 of which a breach may constitute civil penalty under s399-400.

1 2

Tobin, R & Richards, D. (2009) Fibre Connection at Home, Penguin Press: Melbourne, Australia. S372B,C: Deployment of optical fibres to building lots/units & 372E,F: Installation of fibre ready facilities to building lots/units.

Section 407(1) & s408 require the appliance of appropriate labels upon the cables of which they must be authorised from a competent body (s409).

Division 9 of the TA acknowledges the requirements for cabling providers before/after work has been carried out. Section 418-9 classifies the type of work Hayphone is attempting to undergo, that is, the installation of customer cabling for connection to a telecommunications network. Any unauthorised cabling work is governed under s420 TA with remedies for any unauthorised work stemming from Division 10 of the TA. Furthermore, s423 & s426 require the cabling provider to hold a valid cabling licence before undergoing cabling work. b. Broadband through wireless connection Wireless connection is perceived as the orthodox method to connecting to high speed networks through a wireless transmitter/receiver. Whilst it maintains relatively short range and sometimes encounters difficulties when penetrating through buildings, it represents a cheap process compared to that of wiring. Hayphone should be encouraged to engage in wireless carriage service through accessing external facilities as the rectification of its own towers has been described in the scenario as far too expensive a measure. This can be achieved through two avenues: 1.Schedule 1, TA If Hayphone fell within the definition of a carrier in s42 of the TA it could summon Schedule 1 Parts 3&4 as a means of imposing access to facilities of other carriers. This would be seen as a positive movement towards taking advantage of standard carrier licence conditions. This however seems to be out of the question seeing that Hayphone falls more appropriately within the carriage service provider definition. 2.Competition and Consumer Act Part XIC As a carriage service provider, Hayphone may be able to gain access to Telphones 7

(carrier) transmitter towers providing that the service that Telphone supplies falls under the definition of a domestic transmission capacity service in 152AA CCA. This should not present any difficulties to Hayphone taking into consideration the definition alluded to above. The internet communication arising from the transmitter towers towards receiver dishes installed on properties represent domestic transmission capacity service. Under the s152AR(3) of the CCA, category A standard access obligations require Telphone to provide access to these facilities and take all reasonable steps to ensure that the technical and operational quality of the active service is equivalent to that which the access provider provides itself.