Infringement notices | ACMA

Infringement notices

The new Part 31B of the Telecommunications Act 1997 (the Tel Act) enables the Australian Communications and Media Authority (the ACMA) to give infringement notices for alleged contraventions of certain civil penalty provisions relating to telecommunications. This is an alternative to the institution of court proceedings.

Under Part 31B, the ACMA can list provisions in a declaration which are eligible for an infringement notice.

An infringement notice (IN) offers a person a chance to avoid being subject to lengthy and potentially costly court action over an alleged contravention by paying the penalty specified in the notice.

An IN is given by an Authorised Infringement Notice Officer. It sets out the brief details of the alleged contravention, the penalty and the period in which the penalty is to be paid.

If a person pays the penalty by the time specified (or such other period agreed by the ACMA),

  • civil penalty proceedings cannot be initiated in relation to the alleged contravention; and

  • the matter is disposed of without an admission of guilt or a conviction.

If a person does not pay the penalty, court action may be initiated for civil penalties in relation to the alleged contravention.

The following instruments now operate together to form the new telecommunications infringement notice scheme:

Listed infringement notice provisions

Part 31B conferred upon the ACMA the power to declare, by legislative instrument, provisions that are 'listed infringement notice provisions'.

The ACMA has made the Telecommunications (Listed Infringement Notice Provisions) Declaration 2011 which commenced on 16 November 2011. The IN Declaration identifies particular provisions that are 'listed infringement notice provisions' that apply to certain contraventions of sections 68 and 101 of the Tel Act. If a listed infringement notice provision has been breached the ACMA may issue an IN. The default penalty amount for a body corporate is 60 penalty units (currently $6,600). Areas covered include:

  • payphones performance standards and benchmarks

  • payphone location criteria and related public consultation and complaints-handling rules

  • customer Service Guarantee benchmarks

  • eligible revenue return requirements

  • compliance with the Telecommunications Industry Ombudsman Scheme

  • compliance with the Numbering Plan, record keeping rules and information provision requirements

  • mobile premium services determinations

The Declaration and the accompanying explanatory statement can be found on the Comlaw website.

Penalty amounts

The Minister for the Department of Broadband, Communications and the Digital Economy is responsible for determining the penalty amounts for certain INs above the default penalty amount (60 penalty units for a body corporate).

On 6 February 2012 the minister made the Telecommunications (Infringement Notice Penalties) Determination 2012 (IN Penalties Determination) which commenced on 11 February 2012. The IN Penalties Determination and Explanatory Statement can be found on the Comlaw website.

The IN Penalties Determination sets out new IN penalty amounts for breaches of specified obligations that are listed infringement notice provisions:

  • introducing a graduated scale of IN penalties in relation to CSG and USO (payphones) performance benchmarks ranging between $630,000 and $1,890,000;

  • setting IN penalties, ranging between $126,000 to $189,000, relating to the breach of location and removal of payphones obligations; and

  • setting IN penalties, ranging of $42,000 and $63,000 for certain breaches of recent Mobile Premium Services Determinations.

The following tables are derived and adapted from the schedules in the IN Penalties Determination, and are provided as a guide. [Please note: TCPSS Act means the Telecommunications (Consumer Protection and Service Standards) Act 1999]

Payphones

Item

Column 1

Column 2

Type of contravention of section 68 of the Tel Act (breach of the carrier licence condition set out in Part 1 of Schedule 1) or section 101 of the Tel Act (breach of the service provider rules set out in Part 1 of Schedule 2)

Number of penalty units

1

Subsection 12EE(9) of the TCPSS Act:

Failure of a primary universal service provider to meet a minimum payphones benchmark by less than 2 percentage points.

Note: The relevant minimum benchmarks are set out in Part 3 of the Payphone Benchmarks Instrument.

3 000

($630,000)

2

Subsection 12EE(9) of the TCPSS Act:

Failure of a primary universal service provider to meet a minimum payphones benchmark by 2 percentage points or more but less than 5 percentage points.

Note: The relevant minimum benchmarks are set out in Part 3 of the Payphone Benchmarks Instrument.

6 000

($1,260,000)

3

Subsection 12EE(9) of the TCPSS Act:

Failure of a primary universal service provider to meet a minimum benchmark by 5 percentage points or more.

Note: The relevant minimum benchmarks are set out in Part 3 of the Payphone Benchmarks Instrument.

9 000

($1,890,000)

4

Subsection 12EF(2) of the TCPSS Act:

Non-compliance with the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011

600

($1,260,000)

5

Subsection 12EI(6) of the TCPSS Act:

Failure of a primary universal service provider to comply with a written ACMA direction in relation to the removal of payphones from particular locations.

900

($1,890,000)

Customer service guarantee (CSG)

Item

Column 1

Column 2

 

Type of contravention of section 101 of the Tel Act (breach of the service provider rules set out in Part 1 of Schedule 2)

Number of penalty units

6

Subsection 117C(2) of the TCPSS Act:

Failure of a CSP to meet a minimum benchmark by less than 2 percentage points

Note: The relevant minimum benchmarks are set out in Part 2 of the CSG Retail Benchmarks Instrument.

3 000

($630,000)

7

Subsection 117C(2) of the TCPSS Act:

Failure of a CSP to meet a minimum benchmark by 2 percentage points or more but less than 5 percentage points.

Note: The relevant minimum benchmarks are set out in Part 2 of the CSG Retail Benchmarks Instrument.

6 000

($1,260,000)

8

Subsection 117C(2) of the TCPSS Act:

Failure of a CSP to meet a minimum benchmark by 5 percentage points or more

Note: The relevant minimum benchmarks are set out in Part 2 of the CSG Retail Benchmarks Instrument.

9 000

($1,890,000)

Mobile premium services

Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 1) [MPS Determination No. 1] and Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 2) [MPS Determination No. 2].

Item

Column 1

Column 2

Type of contravention of section 101 of the Tel Act (breach of the service provider rules set out in Part 1 of Schedule 2)

Number of penalty units

9

Section 6 of MPS Determination (No. 1):

Failure of a mobile CSP to implement a service that is capable of barring all premium SMS and MMS services on the public mobile telecommunications services it supplies to its customers.

300

($63,000)

10

Subsection 13(3) of the MPS Determination (No. 1):

Failure of a mobile CSP to comply with a notice issued under subsection 13(2) by the ACMA setting out how the service must be improved and/or the information that must be provided to customers to comply with the Determination.

300

($63,000)

11

Subsection 2.1(1) of the MPS Determination (No. 2):

Content service provider contracts with another content service provider for the supply of premium SMS and MMS services to a customer where the other content service provider is not listed in the register maintained by Communications Alliance Ltd under the Mobile Premium Services Industry Code.

200

($42,000)

12

Subsection 2.1(2) of the MPS Determination (No. 2):

Mobile CSP contracts with a content service provider for the supply of premium SMS and MMS services to a customer where the content service provider is not listed in the register maintained by Communications Alliance Ltd under the Mobile Premium Services Industry Code.

200

($42,000)

13

Section 3.8 of the MPS Determination (No. 2):

Failure of a mobile CSP to comply with a do not bill order (or a variation to a do not bill order) from the ACMA within 1 business day after the day on which the order or variation comes into force.

300

($63,000)

14

A contravention of section 3.13 of the MPS Determination (No. 2):

Failure of a mobile CSP to comply with an interim do not bill order (or a variation to an interim do not bill order) from the ACMA within 1 business day after the day on which the order or variation comes into force.

300

($63,000)

Infringement notices guidelines

The ACMA has made the Telecommunications (Infringement Notices) Guidelines 2011 (the IN Guidelines) which commenced on 17 November 2011.

The IN Guidelines contain further information and detail on the operation and application of the new Infringement Notice Scheme. The IN Guidelines outline the kind of factors that will be considered when deciding whether to give an infringement notice. Regard must be had to these guidelines when exercising a power under Part 31B.

The IN Guidelines and the accompanying Explanatory Statement can be found on the Comlaw website.

Last updated: 25 August 2017