TCP Code enforcement: CommCom, ACMA detail timelines

TCP Code enforcementThe TCP Code calls on Code compliance monitor Communications Compliance to establish TCP Code enforcement arrangements for cooperation with other compliance stakeholders, including ACMA,  Last week, CommCom and ACMA exchanged a Memorandum of Understanding that describes how the two organisations expect to work together.

Central to the document are the timelines for CommCom to report Code non-compliance to ACMA and ACMA’s responses.

Failure to submit documentation to CommCom

Where a service provider fails to submit any of the following (as and when required):

  • Compliance Attestation
  • Customer Information Compliance Statement
  • Statement of Independent Assessment

the MOU first calls on CommCom to contact the provider and request compliance.

CommCom to notify ACMA which providers have lodged their documents

By 30 July each year, CommCom will provide ACMA with a list of telcos that have lodged their Compliance Attestation, Customer Information Compliance Statement and (if required) Statement of Independent Assessment.

CommCom to warn about non-lodgement, then report to ACMA

If a telco fails to lodge required documents, CommCom may issue a written warning (the Code actually says warnings), and must notify the telco’s details to ACMA no later than 20 days after the telco has failed to respond.

This implies that CommCom written warnings must specify a ‘respond by’ date, otherwise there’s no certainty about when a telco has ‘failed’ to respond, and when the 20 day time limit starts.

CommCom to report failure to comply with Compliance Monitoring Request

If a telco fails to respond to a Compliance Monitoring Request from CommCom, the monitor is obliged under the MOU to report the fact to ACMA within 30 days.

Oddly, this element of the MOU ignores the TCP Code’s direction that there are to be no reports to ACMA without ‘prior written warnings being given to the Supplier and the Supplier being afforded an opportunity to provide the required compliance information’.

CommCom to warn about CAP failures, then report to ACMA

The TCP Code requires a telco that isn’t able to lodge its annual documents (because it doesn’t yet comply with the Code) to lodge a ‘Compliance Achievement Plan’ (CAP).  If CommCom isn’t satisfied with progress under a CAP, it may issue a written warning, must report the matter to ACMA within 20 days after the telco fails to respond.

CommCom to warn about Action Plan failures, then report to ACMA

A telco that gets caught out by a Compliance Monitoring Request can be required to lodge a remedial Action Plan.  If CommCom isn’t satisfied with progress under an AP, it may issue a written warning, and must then report the matter to ACMA within 30 days.

Again oddly, the MOU doesn’t reflect the TCP Code’s position that unsatisfactory progress with an Action Plan should only be reported to ACMA if CommCom has issued a warning and is then not satisfied  that the progress against the Action Plan is being rapidly remedied.

Presumably, that’s how the MOU will work in practice.

CommCom to lodge systemic issues report by 1 September each year

‘CommCom will report to the ACMA by 1 September each year on industry-wide systemic compliance issues and emerging issues identified by CommCom in the previous twelve months.’

ACMA aims to complete investigations in 60 days

ACMA will try to complete referred investigations within 60 days.

ACMA aims to publish investigation reports in 14 days

Unless there’s a legal problem with publishing the result of an investigation, ACMA will report it on its website within 14 days. comments

It’s useful that telcos now have indicative timelines around TCP Code action by CommCom and ACMA but it must be remembered that the MOU doesn’t really limit what either body can do in case of a real issue.  Serious non-compliance can jump the investigation and enforcement queue.



About Peter Moon

A telco lawyer with a truckload of experience
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