iiNet judgment day: 4 February 2010
The Federal Court has confirmed that the AFACT v iiNet judgment will be handed down on Thursday, 4 February 2010.
The decision is surprisingly quick given the trial only concluded at the end of November last year.
At that time, iiNet CEO, Michael Malone, said in a press release that he was confident the Court would find that the ISP had no case to answer and dismiss AFACT’s claims.
We’ll find out on Thursday if Malone’s confidence was well placed.
More Posts Coming Soon – Seasons Greetings
We have more new posts coming soon.
The government’s recent decision to push ahead with its internet filtering plan is raising great concern among the Australian public for a number of reasons, including what the potential ramifications of this filtering will be. We hope to bring you more on this story soon.
In the meantime we wish our readers seasons greetings, and a safe and prosperous new year.
The CSP Central Team
iiNet board may face governance questions
‘iiNet has of course got a policy for disconnecting repeat offenders. It was written to match the language in the safe harbour provisions. It has of course also been reviewed by Herbert Geer.’
iiNet CEO Michael Malone on Whirlpool, 13 December 2008
In December 2008, iiNet CEO Michael Malone wrote on broadband forum Whirlpool that ‘iiNet has of course got a policy for disconnecting repeat offenders. It was written to match the language in the safe harbour provisions. It has of course also been reviewed by [lawyers] Herbert Geer.’
On Tuesday, in his evidence to the Federal Court on the AFACT case, AFACT’s barrister asked Malone: ‘[iiNet’s repeat offender policy is] not actually written down anywhere, don’t you agree ?’ Malone’s answer: ‘Yes’.
The apparent discrepancy is critical for two reasons.
ACCC takes aim at mobile internet
The ACCC has announced the launch of an Information Paper entitled “Mobile and Other Wireless Internet Speed Claims and the Trade Practices Act 1974″.
The Information Paper has been developed to assist ISPs and Telcos in ensuring that their advertising for mobile and wireless internet is compliant with the Trade Practices Act 1974, and in particular the consumer protection provisions such as s52.
In launching the Information Paper, ACCC Chairman, Graeme Samuel said that:
“The ACCC is concerned by companies over-promising and under-delivering the speeds available on mobile and wireless internet, particularly in the context of network upgrades and increasing wireless internet subscriptions,” “This Information Paper is intended to assist the whole industry – mobile and wireless internet retailers, resellers, and network owners – to comply with the law.”
The ACCC has warned ISPs/Telcos not to advertise terms such as ‘maximum’, ‘up to’ or ‘peak network’ speeds, “if those speeds are not generally achievable or likely to be achieved by consumers using the network.”. The ACCC warning indicates that it is taking a similar approach to that previously taken with ADSL2+ advertising.
The ACCC has expressed the view that ISPs/Telcos should:
- only make speed claims based on ‘appropriate tests of network performance’ to show speeds that can generally be achieved; and
- prominently state the factors affecting mobile and wireless internet speeds such as congestion, location, and other variables.
The Information Paper also contains an Industry Checklist to assist with compliance – ISPs/Telcos are reminded that they should also remember to ensure compliance with CommsAlliance Code C628:2007 TCP Code (Prices Terms and Conditions). Significant effort must be applied in light of the ACCC’s warnings and recent actions in securing enforceable undertakings against some of Australia’s largest ISP/Telcos.
ACCC executes perfect hit on Telstra, Optus and Vodafone
After months of secret negotiations, Telstra, Optus & Voda have rolled over and ‘offered’ ACCC a court enforceable undertaking … equivalent to court injunctions … to stamp out false advertising in the broadband and telephony industry.
When legal advisers warn second and third tier telcos and ISPs about advertising content, the single most common retort is ‘Telstra gets away with it’ and ‘We saw an Optus ad like that’ and ‘But Voda says the same thing’.
It’s a pretty good argument. If the giants can do it, why can’t we ?
No mistake, this is the biggest telco-truth-in-advertising hit ever landed by the national regulator. Like all good commando raids, it seemed to come from nowhere. Only yesterday morning did rumours start to circulate that ’something big’ was coming out of Canberra in the next 24 hours.
If Tiers 2, 3 & 4 don’t get their act together now, they can’t complain they’re being picked on. And ACCC has made sure that Telstra, Optus & Voda are motivated to keep their networks honest.
Senate Committee rubber stamps draft unfair contracts law
The Senate Standing Committee on Economics has received, and noted, strong submissions that part of the proposed new unfair contracts law can’t be right.
But so what ? The Committee majority finds no fault with the reasoning of law Professor Frank Zumbo, or the Consumer Action Law Centre … but it has still rubber stamped the Bill, virtually guaranteeing its passage into law.
And yes, the problem wording is the part we described as the Bill’s ‘bonkers bit’ back in June 2009. It’s disappointing that the Senate Committee system hasn’t been able to deliver a sensible outcome.
Chariot fined $10,000 for failing to lodge eligible revenue return
OK, that’s a March 2006 headline, but it makes the point: failing to comply with the approaching 28 September deadline for carriers to lodge their annual Eligible Revenue Return is not a good idea.
The ERR is used to determine each carrier’s proportionate liability to contribute to funding the Universal Service Obligation, and one late return holds up the whole exercise.
As ACMA Chairman Chris Chapman said at the time:
‘This court decision highlights that ACMA is comfortable with taking action in appropriate circumstances against carriers that fail to meet their regulatory responsibilities.’
CSP Central has previously backgrounded the return and its requirements.
ISPs: Be careful what you say to media about copyright case
Online tech magazine IT News could have inadvertently lured ISPs into legal disaster with a recent article on copyright issues.
By publishing broadband provider comments about legal advice they may have obtained, the mag could have led them to waive the right to keep the details secret.
It’s vital for CSPs to understand the risk they may create if they publicly refer to legal advice they have received.
Web Ace aced by ACMA
The Australian Communications and Media Authority has flexed its Telecommunications Act muscles against ISP Web Ace, directing it to comply with the billing rules under the Telecommunications Consumer Protections Code.
Web Ace is the trading name of Jason Kenneth McKay of Perth, WA. ACMA says that McKay has been extracting payments from customer credit cards without authority, and failing to refund.
The issue was first publicised on Whirlpool, the Australian internet users’ town square. In May 2008, Whirlpool user ‘yabbitboy’ posted:
I am signed up to webace’s email only plan ( $60 a year ), I get unauthorized billings by webace 4 times already, 4*$60. I had contacted them by email – never got replied and also tried contacting them by phone – I do speak to them by person to person but they said they are ‘busy’ and say they will call me back which is *******.
ACMA has now used its power to direct McKay not to extract payments without issuing a bill and in accordance with customer authorisation.
Mythbuster: ‘Entire agreement’ clauses lock out misrepresentation claims
People are often confused about the effect of clauses that say ‘You acknowledge that we have made no other promises or representations to you.’
Often you see such clauses quoted in support of an argument that a claim for misrepresentation cannot succeed where a contract contains this clause.
But that ain’t necessarily so. In fact, it ain’t normally so.