Issue No 25: 17 October 2018

Complaint Numbers Turn the Corner - Data Shows Reforms are Working 

New complaint statistics contained in the TIO’s 2017/18 Annual Report demonstrate that recent industry, government and regulatory initiatives are improving outcomes for individual and small business telco consumers.

The TIO Annual Report shows that complaints dropped by 17.8 per cent in the final quarter of 2017/18 - demonstrating that changes, including new industry initiatives, the ACCC’s Broadband Speeds Guidance, and the Minister’s CEO Forum, are increasingly resolving consumer issues before they feel the need to seek relief via the TIO.

Communications Alliance CEO, John Stanton, said that while the data shows a consistent improvement in complaint volumes since February 2018, the telco industry continues to look at ways it can improve consumer outcomes.

“Recent industry, government and regulatory improvements are starting to deliver a dividend for consumers. These measures, which are either the initiative of or supported by industry, demonstrate how seriously telcos are taking the need to improve consumer outcomes and drive down complaint numbers.

“These positive results continue to demonstrate the efficacy of co-regulation. The ability to respond agilely to changing technologies and market conditions, such as through Communications Alliance’s publication of key Codes and Guidelines to assist with NBN migration, initiatives by individual service providers and nbn, in combination with recent policy and regulatory changes provides better outcomes for consumers.

“The strengthening of the enforceable Telecommunications Consumer Protections (TCP) Code – which is currently underway – will continue to improve service provision for telecommunications consumers.

“We expect that the Communications Alliance’s upcoming Complaints-in-Context Report will shed further light on the performance of the industry”, Mr Stanton concluded.

Communications Alliance, Ai Group, AIIA and AMTA submission on Encryption Bill

Communications Alliance*, the Australian Industry Group (Ai Group), the Australian Information Industry Association (AIIA) and the Australian Mobile Telecommunications Association (AMTA) have made a submission to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, as introduced into Parliament on 20 September 2018.

In their submission, noting the so far truncated consultation process, the Associations call on the PJCIS not to bow to Government pressure and to allow itself adequate time to thoroughly scrutinise the Bill and its effects prior to passage.

The Associations also renew their call for genuine consultation and work on the development of practical measures and their implementation with all relevant stakeholders, including the Associations and their members, over the coming months.

In order to offer solutions-oriented feedback, the submission provides the PJCIS with a list of key requests for consideration:

1. Conduct a ‘common sense review’ of the scope of the legislation as it affects both technology businesses and the broader digitalised industry, including the
   1. feasibility of directing offshore entities;
   2. proportional value of encompassing providers such as component suppliers, facility managers, network installers, etc.;
   3. breadth of acts and things that can be ordered, including the surrendering of source code, the development and testing of surveillance software for use by agencies;
   4. broad range of objectives, including matters that merely facilitate, or are ancillary or incidental, to a function of an agency;
   5. risks that the legislation poses to
      1. Australia’s access to latest technology as overseas providers may be unwilling to supply their services to Australians due to an overly complex and rigorous regime;
      2. Australia’s IT/communications export industry which is likely to be subject to concerns and distrust from overseas organisations; and
      3. general cyber security and civil rights, including privacy.
2. The power to issue a notice must rest with a judicial officer to ensure that any criteria for issuing a notice (e.g. proportionality and reasonableness) are objectively tested and satisfied. This will also provide the ability for the issuing officer to consult with the Designated Communications Provider (DCP) to gather information on reasonableness and proportionality.
3. Ensure that, where requested by a DCP, an expert must (instead of may) be appointed to carry out an assessment of whether a proposed TCN would contravene the provisions that prohibit any notices that would create a systemic vulnerability, and make reimbursement of costs to the DCP mandatory.
4. Add a requirement that a decision to issue a notice and the notice itself are subjected to an ex ante review by an independent agency that possesses sufficient technical expertise to do so.
5. Add a requirement that there be issued a warrant for relevant information on foot before or at the time of the issue of a notice. This will ensure that a notice is actually relevant and give context to judge proportionality.
6. Remove the Technical Assistance Notice (TAN) from the proposed regime on the basis that a TAN is prone to misuse due to its broad remit and the lack of control mechanisms attached to it. More specifically:
   1. The powers under the TAN are far reaching and can be used to request almost anything of a DCP that is, as per the Explanatory Memorandum, supposed to be requested under a Technical Capability Notice (TCN);
   2. The powers under the TAN can be exercised by the head of a security agency – or via delegation by a more junior officer – without Ministerial or judicial oversight;
   3. The TCN has, at least to some extent, control mechanisms attached to it, i.e. it requires consultation with the DCP and authorisation by the Attorney-General, and can achieve everything that a TAN can achieve; and
   4. The removal of the TAN would also lead to a reduction of complexity.
7. Add a requirement to issue a notice to the principal provider of a service to avoid it being ‘hidden in the supply chain’, e.g. a notice must not be provided to the hardware vendor for components but rather to the network operator providing the service to the user.
8. Add a right for DCPs to check and test any device, software etc. that it is requested to use or install at the discretion of agencies prior to using or installing those.
9. Add an immunity mechanism for DCPs that take immediate action to protect their networks and services against any further damage by removing a capability or function without prior notification to or agreement by the agency.
10. Add a right to compensation where a DCP has carried out the requested act or thing, and the execution of that act or thing has caused damage to the DCP’s infrastructure and/or loss of revenue directly attributable to the act or thing.
11. Broaden the disclosure protections so the requirements to protect information extend to information provided to an agency by a DCP.
12. Remove the amendments to the legislation enabling computer access warrants that expressly allow intercepting a communication passing over a telecommunications system.
13. Strengthen the annual reporting regime to include the:
    1. number of Technical Assistance Requests (TARs) that have been ‘complied with’ and how many have been ‘escalated’ to a TAN or TCP;
    2. reasons given by a DCP for not voluntarily providing the assistance;
    3. to add sufficient context, a high-level description of the information or capability sought and the respective category of DCP subject to the notice;
    4. whether or not information under warrant has been obtained in reliance on the notice and if so how many warrants have been used; and
    5. cost information per notice as well as overall costs.

*NOTE: nbn™ is a member of Communications Alliance and the Ai Group but has not been involved in the preparation of this submission.

Communications Alliance and AIIA submission on the Treasury CDR Bill 2018 and the ACCC CDR Rules Framework

Communications Alliance and the Australian Information Industry Association (AIIA) have made a submission to the Australian Consumer and Competition Commission (ACCC) on the Consumer Data Right Rules Framework and to the Department of the Treasury on the revised Exposure Draft and provisions for further consultation of the Treasury Laws Amendment (Consumer Data Right) Bill 2018.

In their submission (and building on a previous submission), the Associations express their in-principle support for the recommendations put forward in the Productivity Commission’s Report on Data Availability and Use but highlight a number of concerns with the proposed draft legislation and Rules Framework. Those relate to:

• the short timeframe for the development of the legislation and the Rules Framework and the resultant risk of adopting a sub-optimal approach for the sectors that are to follow the Open Banking regime;
• the application of a CDR regime to the telecommunications sector and the need to carefully evaluate costs and benefits on a per sector basis including an analysis of alternative approaches that could facilitate the achievement of the declared objectives of a CDR regime;
• pre-conditions, processes and criteria for a designation of a sector to ensure that a sector-specific analysis be undertaken, within a consultative framework and on the basis of adequate information;
• the proposed inclusion of derived and value-added data which threatens to significantly deter investment into data analytics, thereby risking running against the declared objective of fostering innovation;
• a complex dual privacy regime which will be very difficult to implement and is likely to be confusing for consumers and businesses;
• the implications of the extension of personal information to data that relates to an individual, including in the context of metadata and the proposed informed consent provisions; and the extended definition of a CDR consumer.

SAVE THE DATE – Next Gen Satellite Focus

A Communications Alliance Satellite Services Working Group Event.
In conjunction with ACMA RadComms 2018.

When:  Monday 29 October 2018,

Time:    2pm – 5pm

Where: ACMA, 5/65 Pirrama Rd, Sydney

Speakers: 

• Andrew Kerans, ViaSat. The Future of Australian Satellite Services
  
• Tony Azzarelli, OneWeb
  
• Chris Hofer, ViaSat
  
• Patrick Tatum, Iridium Satellite Communications 
  
• Bashir Patel, EMEA Satellite Operator's Association (TBC)