ARE YOU BOUND BY THE CODE?
How do I know if my company is bound by the Code?
The revised Telecommunications Consumer Protections (TCP) Code C628:2019 applies to all Carriers and Carriage Service Providers (CSPs or providers) that provide carriage services to Consumers (and this may include small businesses).
Even if you do not own infrastructure you may well be bound by the Code. Under the Telecommunications Act Internet Access Providers (IAPs) and Internet Service Providers (ISPs) are also considered CSPs.
However, not all providers are bound by the TCP Code.
In order to be bound by the Code, your company has to fulfill two criteria:
- You must be providing one or more Carriage Services:
Typical carriage services include (but are not limited to) xDSL services, wifi and dial-up services, mobile services, fixed line services, VoIP services, long distance calling, pre-paid phone cards including calling cards to overseas destinations, 1 300 and 1 800 numbers etc. This includes the resale of those services where a business does not own the infrastructure used to provide the service. Web hosting services are typically not considered carriage services.
- The service(s) must be provided to Consumers, defined in the Code as:
(a) an individual who acquires or may acquire a Telecommunications Product for the primary purpose of personal or domestic use and not for resale [often also called residential customers]; or
(b) a business or non-profit organisation which acquires or may acquire one or more Telecommunications Products which are not for resale and, at the time it enters into the Customer Contract, it:
(i) does not have a genuine and reasonable opportunity to negotiate the terms of the Customer Contract; and
(ii) has or will have an annual spend with the Supplier which is, or is estimated on reasonable grounds by the Supplier to be, no greater than $40,000, or, in the 5 months following Code commencement, an annual spend of $20,000. [This means that from 1 August 2019 – 31 December 2019, the annual spend is no more than $20,000. From 1 January 2020 the annual spend is no more than $40,000.]
- ‘Customer Contract’ in this context does not mean that a customer necessarily enters into an arrangement of a fixed duration, i.e. 6 months, 12 months etc. Customer contracts include services that are sold on the basis of pre-payment, on a month-to-month basis or services that can be cancelled without any notice.
- A “Take it or leave it” offer does not grant a genuine opportunity to negotiate, i.e. the fact that a potential customer can walk away from the offer in itself does not constitute an opportunity to negotiate.
- The terms of the customer contract are not limited to (but usually include) the price or duration of the contract but can relate to various other things such as payment arrangements, conditions, warranties etc. Most custom-built solutions are the result of negotiations. But note that you must provide a genuine opportunity to negotiate, i.e. allowing your customer to seek negotiations when it is clear from the outset that you are not in a position or willing to accommodate any potential change to the previously offered conditions, may not constitue a genuine opportunity to negotiate.
Importantly, the above means that if all your customers are small businesses/non-profit organisations and all are given the genuine opportunity to negotiate the terms of their contract, then your company is not bound by the Code and you are not required to lodge compliance documents with CommCom.
Please note that the Telecommunications Industry Ombudsman (TIO) will accept and, where deemed appropriate, investigate complaints against all providers irrespective of whether or not they are bound by the TCP Code.
If you are still unsure, please contact us.