Introduction -
The Australian Communications and Media Authority (International Mobile Roaming Industry Standard) Direction (No. 1) 2012 (the Direction) was made1 by the Minister for Broadband, Communications and the Digital Economy (the Minister) on 23 August 2012. This Direction requires the Australian Communications and Media Authority (ACMA) to make a new industry Standard for telecommunications providers of international mobile services to implement certain specified consumer awareness measures.
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In accordance with the Direction the ACMA is developing an International Mobile Roaming Industry Standard (Standard) that relates to the setting of minimum requirements that providers must adhere to when facilitating IMR services. The minimum requirements in the Standard are stated within the Direction and its explanatory statement, and further requirements are proposed as a result of an eight week consultation process involving industry, industry representative bodies, consumers and consumer representative bodies. The proposed provisions in the Standard are intended to build on and complement the recent changes in the Telecommunications Consumer Protections Code which already contains some requirements to provide specified information about IMR services.
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In developing the Standard, the ACMA has considered the regulatory impact of the policy proposals. The ACMA is aiming to strike a balance between the interests of consumers who use IMR services and the practicalities of introducing new regulatory obligations for mobile telecommunications services.
Background International mobile roaming charges -
In March 2008, the Department of Broadband, Communications and the Digital Economy (DBCDE) engaged KPMG as consultants to investigate international roaming charges. In its Report of findings on International mobile roaming charges published in August 2008, KPMG concluded that the price of international mobile roaming is excessive, there was a lack of consumer clarity around roaming plans and prices and that there were limited market incentives for roaming prices to decrease.
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The House of Representatives Standing Committee on Communications announced a Parliamentary Inquiry into international mobile roaming charges on 19 June 2008. The release in March 2009 of Phoning Home: Inquiry into international mobile roaming included a recommendation supported by the Government that the ACMA facilitate a meeting of the Communications Alliance to discuss the development of a minimum Standard for consumer information and awareness of roaming and potential costs. This meeting has subsequently been superseded by the Minister’s Direction to make a Standard.
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In addition, the Department of Broadband, Communications and the Digital Economy (DBCDE), in conjunction with its New Zealand counterpart, the Ministry of Business, Innovation and Employment (MBIE) undertook a joint market investigation to establish whether there is market failure in the Trans-Tasman roaming market.
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DBCDE and MBIE released the final report on Trans-Tasman roaming on 9 February 2013. This report largely focused on the options for price monitoring and regulation which is complementary to the Direction under which the ACMA will make the IMR Standard. However, the Trans-Tasman report notes that regulatory pressure in the form of a full market investigation by DBCDE in Australia and MBIE in New Zealand has caused a reduction in IMR pricing for Australians and New Zealanders travelling between the two countries.
Regulation of international mobile roaming -
Existing consumer protection measures in place for IMR are the specific provisions in the TCP Code, and the general protections offered by Australian Consumer Law 2011. The TCP Code includes:
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A requirement to include information about IMR on a supplier’s website, including whether it needs to be activated prior to departure, basic pricing information and information about higher charges that may apply (including advice that there may be a cost in receiving a call when overseas) (clause 4.1.3(i)); and
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The provision of a Critical Information Summary which includes warnings about roaming costs (including international roaming charges)2 (clause 4.1.2(a)(iii)B).
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The IMR provisions in the TCP Code are focussed on domestic pre-departure information provided at point of sale and available via a website. The rules concerning IMR are a small element of the TCP Code which contains a range of provisions to protect consumers in their interaction with providers within Australia.
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However, the IMR provisions in the TCP Code do not require any information to be provided to consumers when they actually roam internationally at which point in time both the financial risks associated with international roaming and the need for information about costs and usage are most acute. The timely, targeted, and country specific IMR information proposed under the IMR Standard reflects the magnitude of the financial risk to consumers when they travel.
The Direction on international mobile roaming -
The Direction made by the Minister requires the ACMA to make an industry Standard under section 125AA(1) of the Telecommunications Act 1997 (the Act). The Direction specifies that two minimum requirements must be included in the Standard, as follows:
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The industry Standard must set minimum requirements for all Providers to:
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give consumers information, on arrival at an overseas destination, about the charges applicable for the Providers’ international roaming services at that destination; and
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permit consumers to decline continued provision of those international roaming services, at any time, while at that overseas destination.
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The Direction (and associated explanatory statement) makes it clear that the above requirements are only the minimum measures for the ACMA to introduce. The ACMA has the power to include further measures as follows:
(2) The industry Standard may deal with any other matter:
(a) related to international mobile roaming services that the ACMA regards as appropriate including, without limitation, measures which will enable consumers to monitor and manage the cost and their use of international roaming services; or
(b) that the ACMA considers ancillary or incidental to a matter specified in clause 6(1) above.
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As per the Explanatory Statement to the Direction, examples of possible measures that are captured by subclause 6(2) are included below:
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Example of possible measures
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On purchase and before departure overseas
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Information about a consumer’s ability to opt in or opt out of particular IMR services or IMR services for particular countries.
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On arrival and while overseas
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On arrival, a SMS or similar messaging alerting consumers to the ‘premium’ nature of IMR services (i.e., that IMR services are charged at a premium rate), including provision of specific relevant pricing information in easy to understand language, and details of where to obtain additional information, such as a freecall service, and a capability to opt-in or opt-out of the service.
Examples of matters about which a consumer might be notified might include the cost of a 2 minute call in the overseas country, the cost of a 2 minute call to Australia, the cost of a SMS and the cost of a measure of data.
Development of user friendly tools to manage IMR services and where more information can be obtained while overseas. Measures might include, but need not be limited to:
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Instructions on how to turn off roaming services for one or more of voice, SMS and data services;
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enabling end users to choose between a cap or extending the service. If the latter, pricing information should be provided to facilitate a decision by the end user as to a pricing plan;
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to the extent technically feasible, for post paid services, alerts relating to percentage or dollar limit warnings and progressive total spends totals for voice, SMS and data;
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to the extent technically feasible, for prepaid, alerts based on remaining credit; and
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alerts would include a note on the accuracy and timeliness of information if relevant (recognising that some information relies on systems of overseas providers).
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The Ministerial Direction implies that any regulation should combine the minimum consumer safeguards required to protect consumers with other measures which would facilitate consumer empowerment in this area. It also mirrors the requirements on providers domestically to ensure that consumers can manage their own expenditure through the provision of spend management tools.
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