ACMA fires off TCP Code ‘preliminary breach’ letters

The Australian Communications and Media Authority is notifying telcos that failed to lodge their TCP Code compliance documentation that they are subject to a ‘preliminary breach finding’.  ACMA’s letters invite any submissions the telco wants to make, to be lodged within a few days.  The letters we’ve seen so far are all dated 20 June 2013 and call for any submissions by 1 July.

What does the letter mean for a telco, and what should you do about it?  We’ll explain.

Why only a ‘preliminary breach’?

ACMA can’t be certain that every company that appears to be a telco actually is.  Basically, ACMA and the Code monitor Communications Compliance are working from the TIO’s membership records, and we’ve previously explained why that’s unreliable.

ACMA has decided that one way to identify ‘real’ from ‘unreal’ telcos on the TIO list is to see which members have been the subject of at least one complaint over the last year.  If there have been any complaints, it would seem that the telco must have been trading.

But even that is not foolproof.  For instance, a telco that ceased trading before 1 September 2012 was never subject to the 2012 TCP Code, even if it did have some TIO complaints after 20 June 2012.  For that and other reasons, ACMA is informing telcos that its preliminary view is that their failure to lodge constitutes a breach, and giving them an opportunity to respond.

What should you do if you have received a letter?

First, urgently work out if you were required to lodge TCP Code compliance documents.  Is your business in fact subject to the TCP Code?  If not, you need to write to ACMA and carefully explain why.  We’d suggest contacting ACMA by phone first, to discuss the matter in advance of your written submission.

Second, if you are subject to the TCP Code lodge your compliance documents as soon as you possibly can.  From a strict legal point of view, once you missed the deadline, you missed it for good.  But from a common sense perspective, it must be better to have lodged late than not to have lodged at all.

Communications Compliance may not have its online lodgement portal open any more.  Then post your documents to CommCom:

Communications Compliance Ltd
P.O. Box 806
North Sydney, NSW 2059

CommCom might shred your papers, but we doubt it.  And it might return them to you, but we doubt that too.  At least you will have done all you could to remedy your breach.

Third, make sure you respond to ACMA’s letter by the deadline.  Hopefully, you’ll be able to say that you’ve now lodged your documents.  If not, at least put your hand up and say you’re an airhead and you recognise that you must now deal with the Code.  If you have, in fact, adopted the Code to any extent, explain that.  Basically, do as much as you can to show ACMA that you aren’t ignoring it and its Code.

Fourth, get serious about TCP Code compliance.  There’s now officially a file inside ACMA with your name on it.  Don’t give the regulator cause to pull it out of the cabinet again.

What if you do nothing in response?

ACMA still has something of a problem, where it gets no reply to its letter.  There could be a small number of cases where there were some TIO complaints within the last year, and no compliance documents were lodged, and no response to the letter is received, but the company still hasn’t breached the TCP Code.  It will be interesting to see how ACMA deals with that issue.

But in most cases, it’s going to be pretty clear which non-responders are in fact selling telco services to residential and small business accounts.  They can expect enforcement action from the Authority.  That will probably start with either a formal warning or a ‘direction to comply’ that binds the telco not to repeat the Code breach.  If a DTC is breached, ACMA can:

  • issue an infringement notice of $6600 per breach;
  • accept an enforceable undertaking;
  • give a remedial direction requiring the telco to take specific steps; or
  • seek a civil penalty of up to $250,000 in the Federal Court.



About Peter Moon

A telco lawyer with a truckload of experience
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