Legal News & Analysis – Asia Pacific – Australia – TMT

WHAT YOU NEED TO KNOW

• The Integrated Public Numbering Database (the IPND) is a database containing the details of all customers of telecommunication services in Australia, including a customer’s number, name, service address and location. All carriage service providers must contribute to the IPND, which is used for certain limited purposes, such as assisting enforcement agencies or safeguarding national security.
• The recent enforceable undertaking given by Lycamobile Pty Ltd (Lycamobile) demonstrates that the Australian Communications and Media Authority (the ACMA) is prepared to use its enforcement powers to ensure that service providers comply with the Telecommunications Act 1997 (Cth) (the Telecommunications Act), particularly in focus areas such as those relating to national safety and security. Contraveners may be subject to penalties or may be required to give enforceable undertakings to correct their non-compliance.
• An enforceable undertaking may require service providers to implement processes within a short period, which can be costly and impact on their standard processes.

WHAT YOU NEED TO DO

• Carriage service providers should proactively implement any compliance programs to ensure they adhere to their obligations under the service provider rules in the Telecommunications Act, before they are required to do so by the regulator.

The ACMA, as the regulator of the telecommunications industry, has recently accepted an enforceable undertaking from Lycamobile, in relation to Lycamobile’s failure to comply with its obligation to provide accurate information for the IPND. The enforceable undertaking, as well as the steps leading up to the enforceable undertaking, demonstrates the importance of ensuring accurate data in the IPND.

What Is The IPND?

The IPND is a database of all residential and business telephone numbers (both listed and unlisted) and associated customer information, including name and address information, the customer’s service location, the name of the carriage service provider, and whether the telephone is to be used for government, business, charitable or private purposes. Telstra, as a condition of its carrier licence, maintains the IPND, as the “IPND Manager”.

Although the IPND does hold a significant amount of personal information, it may only be used for the limited purposes set out under Part 13 of the Telecommunications Act. One of those purposes is to assist public interest uses, such as emergency services and law enforcement.

The Role Of The IPND In National Safety And Security

The ACMA has identified national safety and security as one of its focus areas in its 2013-2014 Budget Statement. In this context, the IPND is often relied upon when implementing an emergency response or telephone-based emergency warning systems.
Since inaccurate data in the IPND can adversely the investigations and duties of law enforcement and national security agencies, the ACMA has initiated an IPND compliance program that involves monitoring and investigating service providers in order to improve the quality of address data provided to the IPND.

Lycamobile’s Obligations In Respect Of The IPND

Lycamobile is a provider of mobile telephone services, including standard emergency telephone services. As a carriage service provider, Lycamobile is required to comply with the Service Provider Rules, including the obligations set out under:

• the Telecommunications Act;
• the Telecommunications (Consumer Protection and Service Standards) Act 1999 (and its regulations), Part 6 of the Telecommunications Universal Service Management Agency Act 2012 and Chapter 5 of the Telecommunications (Interception and Access) Act 1979; and
• any applicable determination, relevantly, the Telecommunications (Emergency Call Service) Determination 2009 (Cth) (Determination), which imposes requirements in relation to emergency call services for carriers, carriage service providers and emergency call persons.

Under the section 41(a) and 42 of the Determination, Lycamobile is required to ensure that:

• the IPND Manager receives a record of the public number, name and service address of each of its customer; and
• the information in the customer’s record is received before the end of the next business day after starting to supply the service to the customer.

Compliance With The IPND Obligations

In 2011, as part of the IPND compliance program, the ACMA commenced an investigation into Lycamobile’s compliance with the Determination, specifically, its obligation to provide information to the IPND Manager.

The ACMA found that between 25 January 2011 and 21 October 2011, Lycamobile:

• on 46 occasions, did not provide a proper “service address” to the IPND Manager, as the address information was inaccurate or nonsense data; and
• in respect of 29 of those 46 occasions, did not provide an accurate customer name to the IPND Manager, as the customer details were incorrect.

Consequently, on 20 April 2013, the ACMA first issued a formal warning to Lycamobile, stating that Lycamobile had failed to comply with the Determination and therefore had failed to comply with the Service Provider Rules.

Lycamobile’s Enforceable Undertaking

Following the formal warning, Lycamobile acknowledged that the ACMA’s findings of its noncompliance were based on reasonable grounds. Lycamobile then offered to the ACMA an enforceable undertaking, effective until 2 September 2015, that it would comply with its obligations under the Telecommunications Act. This was accepted by the ACMA on 2 September 2013.

Under the enforceable undertaking, Lycamobile must:

• ensure that all new customer records will be entered correctly, using appropriate address validation software, and also implementing error correction processes at the point of entry, or by no later than 24 hours of entry;
• report to the ACMA every six months any discrepancies as a result of the new processes implemented, with a description of any steps taken to correct the discrepancy;
• correct any errors in the existing customer records in the IPND;
• implement a staff-wide training and education program in respect of the collection, provision and correction of customer data (and ensuring that all relevant employees attend such training); and
• notify its distributors and retailers of the need to comply with the legal requirements in respect of the IPND.

If Lycamobile does not comply with the conditions of the enforceable undertaking, the ACMA would be able to apply to the Federal Court for an order requiring Lycamobile to comply with the undertaking, or to do anything the Federal Court considers appropriate (including payment of any damages).

It is also relevant to note that the ACMA could have also chosen to issue an infringement notice for a breach of the Service Provider Rules under the Telecommunications Act. For corporations, a breach of the Service Provider Rules for a breach of the IPND obligation can attract a penalty of up to 60 penalty units ($10,200) for each contravention.

For further information, please contact:

Khai Dang, Partner, Ashurst
[email protected]

Charlene Ko, Ashurst
[email protected]

Ashurst TMT Practice Profile in Australia