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Words from our Public Policy frontier

IAA’s Public Policy Advisory Panel met for its third quarter meeting on 7 September. While two panellists were unfortunately unable to attend, the Panel had a very spirited meeting, getting into the nitty gritty of telco legislation and the policy context. Sophia (IAA Policy Officer) gave an update on the consultations IAA have responded to since the last meeting (no less than 9!), as well as an overview of other work the policy team have been up to, including meetings with regulatory bodies and NBN Co, forums the team have participated in and publications that have been released. The Panel then discussed upcoming consultations and provided much guidance; sharing their knowledge on the various policy areas that will be of relevance in the coming months, and perspectives on where IAA should devote its focus.  

IAA is extremely grateful to the Panel members who dedicate their time to guide IAA’s advocacy work.  

Have you submitted your asset information?

The last chance to complete your asset registration under the new carrier licence condition and determination for eligible CSPs is 8 October 2022. Under this new determination, telcos must provide the Department of Home Affairs’ Cyber and Infrastructure Security Centre (CISC) with operational information in relation to their telecommunications assets. Where an entity holds a direct interest of at least 10% or a controlling stake in the asset, information about the interest and control in the asset must also be reported.   

An ‘asset’ is defined to be a tangible asset owned or operated by a carrier/eligible carriage service provider and is used to supply a carriage service. It does not refer to typical termination equipment on customer premises. An asset can be thought of by way of an analogy – the entire car as opposed to the individual components that make up the motor vehicle. Please visit the CISC website for further information. We have also created this helpful guide to assist you.  

September’s Advocacy Corner Update

IAA’s policy team have had another busy month, meeting with regulatory bodies and NBN Co mostly to reinforce IAA’s position within Australia’s Internet industry landscape. We’ve also engaged in consultations that are of relevance to our members, and prepared an educational guide to assist members in complying with new critical infrastructure obligations.

Recent submissions:

Discussion Paper – NBN Co Revised SAU Variation Proposal | NBN Co
The IAA policy team continued its involvement in the revised Special Access Undertaking after the NBN Co’s withdrawal of its previous proposal in late July. In this process, we participated in the industry forum, as well as met with the ACCC and NBN Co to express our concerns and seek greater clarity on the proposed SAU. In our response, we noted that although the Discussion Paper suggested the SAU was stepping in the right direction, lack of transparency seems to be a key issue. In particular, as NBN Co indicates that trade-offs will be necessary between service standards, and price to RSPs, we emphasised that NBN Co must be transparent in these decisions and seek industry collaboration to better inform their decisions. We will continue to be involved in this process as NBN Co seeks to lodge its revised SAU to ACCC by the end of the year.

Stage 2 Review of the Model Defamation Provisions – Part A | COAG
We also continued to be involved in the review of the model defamation provisions, with Stage 2 reflecting perspectives and suggestions made by IAA during the Stage 1 consultations held last year. IAA continued to argue for a statutory exemption to apply to ISPs, recognising that telcos are not involved in the content layer of the Internet and therefore should have assurance that they will not be liable for defamatory material published online. We’ve also argued that DNS registries, registrars and DNS cache operators should not be liable for the domain names people (registrants) register. 

Open submissions:

Exposure Draft—Telecommunications Legislation Amendment (Statutory Infrastructure Providers and Other Measures) Bill 2022 | DITRDCA | 30 September 2022
The Department of Communications is seeking feedback on proposed amendments to the Statutory Infrastructure Provider regime. The Bill indicates changes to various telecommunications laws to enhance the operation of the SIP regime. Overall, IAA approves of the principles and objectives guiding the amendments and will seek greater clarity on areas that require further explanation.

Industry Codes of Practice for the Online Industry (Class 1A and Class 1B Material) | 2 October 2022
Industry representatives have collaborated to draft the Industry Codes relating to Online Safety for the different sections of the Internet sector. This approach recognises the unique functions and roles of the various sections and thus the different responsibilities that should apply. IAA will predominately respond to Schedule 7 for Internet Carriage Services and make recommendations that will better ensure an appropriate balance between protecting end-user safety online, cost and limiting unnecessary burdens for ISPs.

5 Year Productivity Inquiry: Australia’s Data and Digital Dividend | Productivity Commission | 7 October 2022
The second interim report for the Productivity Inquiry has been released, focusing on data and the digital economy in Australia. The Commission has made various recommendations, including changes to government funding allocations for telecommunications services such as those within the Universal Service Obligation and Mobile Black Spot funding.

August’s Advocacy Corner Update

The Public Policy team has continued to be busy this past month. From participating in a panel on Lawful Interception to attending an industry forum on the revised Special Access Undertaking from NBN Co, while also keeping on top of the various consultations that are currently underway.

Shortly after the IAA event regarding Open LI, which included the IAA Policy Officer’s brief introduction to Australian lawful interception obligations, there have been some changes made, meaning the Telecommunications (Interception and Access) Act will now be overseen by the Attorney-General’s Department. The Department of Home Affairs will now only oversee the use of interception powers by ASIO.

The Department of Home Affairs has been asked by the new Labor government to revisit the 2020 Cyber Security Strategy in the context of the contemporary growing threat landscape. One of the criticisms of the previous strategy was that it failed to take on industry recommendations and lacked wider industry collaboration, and this is said to be a focus of the revamped approach. A timeline for the update has not yet been announced, but we look forward to participating in the consultations once they begin, as developments in cyber security and critical infrastructure have increasingly been focused on the telecommunications sector.

The Minister for Home Affairs also recently designated 82 of the nation’s most critical infrastructure assets as ‘systems of national significance’ (SONS), activating powers that were granted to the Minister under recent critical infrastructure legislation. The designated assets, including some from the communications sector, may now be subject to heavier obligations. Under law, these assets also cannot be publicly named as being a SONS.

On that note about critical infrastructure, remember that as a carrier or CSP, you will need to report operational information to the Register of Critical Infrastructure by 7 October 2022!

Check out our work from the past month as well as responses we are working on for the month(s) ahead.

Recent Submissions:
Treasury Laws Amendment (Competition and Consumer Reforms No. 1) Bill 2022 | Treasury | 25 August 2022

The Treasury has fast-tracked draft amendment to legislation that would see greater penalties for telecommunications providers who engage in anti-competitive conduct. Increased penalties could be as high as 30% of a telco’s revenue, and the maximum penalty amount could rise from $10 million to $50 million. The explanatory note claims the increases are to ensure they are a sufficient deterrent to larger telco providers.

In our response, IAA supported the commitment to ensuring providers do not engage in behaviour that is anti-competitive, but raised our concerns with the extremely short notice and consultation period (only 1 week!), as well as the lack of explanatory justification provided for an amendment of this scale.

 

Open Submissions

Revised NBN Co SAU Variation | NBN Co | 2 September 2022
Following its withdrawal of the Special Access Undertaking Variation proposal in July, NBN Co has released its revised SAU and is seeking feedback. Many changes have been made, such as to pricing structure, service standards and the ACCC’s powers, reflecting feedback on its previous proposal and the last SAU. The ACCC also held a two-day industry forum which IAA attended, and the team is committed to continuing to engage in this area of importance to our members.

Stage 2 Review of the Model Defamation Provisions | COAG | 9 September 2022
This stage of the review of the Model Defamation Provisions will focus on Internet intermediaries and what level of liability intermediaries should have for third-party publication of defamatory material online. A workshop will be held in early September by the NSW Department of Communities and Justice which is coordinating the consultation. We will continue our strong advocacy that ISPs providing vanilla internet access should not be liable for defamation by users.

5-year Productivity Inquiry: Australia’s Data and Digital Dividend | Productivity Commission | 7 October 2022
The second interim report for the Productivity Inquiry has been released, focusing on data and the digital economy in Australia. The Commission has made various recommendations, including changes to the government’s funding allocations for telecommunications services, such as those within the Universal Service Obligation and Mobile Black Spot funding.

 

 

REMINDER: Prepare Asset Information Under New Obligations

Under a new carrier licence condition and determination for eligible CSPs, telcos must provide the CISC with operational information in relation to their telecommunications assets, so it can be included in a register by 7 October 2022. Where an entity other than a carrier or eligible CSP holds a direct interest of at least 10% or a controlling stake in an asset, information about the interest and control in the asset must also be reported.

An ‘asset’ is defined to be a tangible asset owned or operated by a carrier/eligible carriage service provider and is used to supply a carriage service. It does not refer to equipment on customers’ premises. According to industry de-briefs, an asset can be thought of by way of an analogy – the entire car as opposed to the individual components that make up the motor vehicle.

Please visit the CISC website for further information.

NBN Co Revised SAU Seems More Promising, but Concerns Still Remain

NBN Co is now working on the revised Standard Access Undertaking after withdrawing its previous SAU, which was met with industry-wide criticism in late July.

Its discussion paper released earlier this month is a lot more promising and includes a number of changes that which industry has been largely supportive of, notwithstanding remaining concerns on issues such as potential price rises, transparency surrounding NBN Co’s costs, and industry’s expectations for service standards commensurate to capex and thus increase in prices for RSPs.

The ACCC held an industry forum from 18-19 August to which IAA and various other industry representatives were invited. The forum allowed for open and frank discussions and was a great chance for industry to address remaining issues.

NBN Co hopes to release its revised SAU in late October. Submissions for its discussion paper outlining its proposed changes are due on 2 September.

Check out IAA’s media release in response to NBN Co’s SAU withdrawal in July, highlighting our position.

Internet Association of Australia calls for an nbn framework that prioritises fit-for-purpose internet for all Australians

28 July 2022

The Internet Association of Australia Ltd (IAA) today supports Communications Minister Michelle Rowland in rejecting NBN Co’s proposed variation to the Special Access Undertaking (SAU). As NBN Co looks to re-start the process, IAA calls for a new approach to the framework that prioritises providing all Australians with internet access that is affordable and fit-for-purpose.

IAA welcomes the Minister’s call that the SAU variation should reflect changes in the policy landscape where NBN Co will remain in public ownership for the foreseeable future.

“This is a good opportunity to hold NBN Co to its fundamental purpose for existence and create the SAU accordingly,” said IAA CEO, Narelle Clark. “This national resource should be geared appropriately to providing high-speed, high-quality broadband to sustain Australian lives and economy.”

The Minister’s letter to ACCC expressed the view that consumers and businesses are primarily concerned with the quality and service of NBN.

“NBN Co’s proposed SAU did not add any commitment to improve its performance against standards,” said Clark. “This would hurt both RSPs and the broader Australian public as prices for NBN would have kept rising despite failure deliver service and sub-par technology choices. RSPs have long been blamed for NBN Co’s shortcomings. NBN Co should take a more holistic consideration of end-user reliability to fulfil its role.”

IAA acknowledges a SAU variation is necessary given the changes to the technological landscape. “We look forward to continue engaging with NBN Co, the ACCC, industry and other stakeholders to ensure an SAU variation that best serves Australians and our economy,” said Clark.

July’s Advocacy Corner Update

The recent activation of the Telecommunications Sector Security Instruments on 7 July came as a surprise to the public policy team. The unexpected commencement of new obligations took up much of our attention this month, attending industry debriefs and preparing material to assist members with compliance. We have also continued consulting with members to prepare our submission on the NBN Co Standard Access Undertaking (SAU).

Recent Submissions:
Proposed NBN Co SAU Variation | ACCC
Given the recent change in government, our submission addressed this as an opportunity to reassess NBN Co’s reason for existence and argued that the proposed SAU variation should be considered in this light. We emphasised the purpose of NBN Co is to provide high-quality, reliable and accessible broadband, rather than NBN Co’s seeming focus of not mere cost recovery but going beyond to make even more revenue. Thus, we recommended the ACCC not accept the proposed variation on the grounds that it does not promote the long-term interests of the end user, as well as negatively affecting RSPs. 

Proposed Fees for Service 2022-23 | ACMA
We noted the significant increase in costs for a carrier licence application as well as charges for the telecommunications sector and requested further explanation and breakdown to justify any increase in ACMA’s fees. 

Open Submissions:
Incorporating QR codes into the telecommunications labelling arrangements | 19 August 2022
ACMA is proposing to amend the Telecommunications Labelling Notice to include QR codes to align labelling requirements with those under the Radiocommunications Act. This is to provide consistency and flexibility for suppliers in the Australian market and enable suppliers to comply with the requirements.

ACMA has also identified three telecommunications technical standards that relate to outdated technology, or withdrawn industry standards, which they are also proposing to be repealed.

 

June’s Advocacy Corner Update

Completed Submissions
Telstra-TPG Merger Authorisation | ACCC
In our response to the Commission’s consultation regarding the merger authorisation requested by Telstra and TPG, we noted our general support for the principle of open access provided at a fair cost, while bringing attention to the potential risk of adversely hindering competition through entrenching dominant players in the market. Overall, IAA believes that any infrastructure built with public money should be open to all relevant and qualified telecommunications providers to access. 

National Data Security Action Plan | Department of Home Affairs
The National Data Security Action Plan is in a very early stage of development. In our response, we focused on the need for government to clarify the policy context surrounding data security for the telecommunications sector. We called for greater meaningful engagement with the sector, and support for businesses to encourage collaboration.  While we acknowledge the need to ensure Australia’s data security, it is imperative that this takes a multistakeholder approach, and that the Action Plan is cohesive, clear and effective. 

Open Submissions
NBN Co. SAU Variation | ACCC | 8 July 2022
The ACCC is seeking submissions to its report on NBN Co.’s SAU Variation. The proposed variation from NBN Co includes product and pricing commitments, changing the framework for NBN Co’s cost recovery, and incorporating fibre-to-the-node and other copper-based technologies to create a single regulatory framework for all technologies. We are still keen to hear from any members with views on this important topic, as we know it is a highly contentious matter! 

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