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Introduction
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The ACCC is an independent Commonwealth statutory authority established in 1995. The ACCC is responsible for the economic regulation of the telecommunications sector, including enforcement of the carrier separation rules in Part 8 of the Telecommunications Act.
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Section 3 of the Telecommunications Act states that the main object of the Telecommunications Act, when read together with Parts XIB and XIC of the Competition and Consumer Act 2010, is to provide a regulatory framework that promotes:
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the long-term interests of end-users of carriage services or of services provided by means of carriage services;
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the efficiency and international competitiveness of the Australian telecommunications industry; and
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the availability of accessible and affordable carriage services that enhance the welfare of Australians.
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These guidelines are made under subsection 572M(5) of the Telecommunications Act which provides that the ACCC may formulate guidelines for the purpose of the exercise of infringement notice powers by authorised infringement notice officers under Part 31B of the Telecommunications Act. These are the guidelines in force for the purposes of subsections 572M(4) and (6) of the Telecommunications Act.
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The guidelines set out the discretionary matters which an authorised infringement notice officer would generally consider in the exercise of their powers conferred under Part 31B of the Telecommunications Act. The guidelines also set out the process for payment of an infringement notice penalty and the effect of such payment.
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The guidelines take into account the objects of the Telecommunications Act.
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While the guidelines provide general guidance to industry in relation to the ACCC’s approach to exercising its infringement notice powers, the ACCC will determine the most appropriate outcome on a case-by-case basis, taking into consideration the alleged contravention, the business or the individual involved and the impact of the conduct.
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Infringement notice provisions in the Telecommunications Act
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Infringement notices are designed to provide a timely and cost-efficient enforcement outcome in relation to relatively minor alleged contraventions of the civil penalty provisions in the Telecommunications Act, without the need for litigation.
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Under the Telecommunications Act, an authorised infringement notice officer has the power to give an infringement notice in respect of contraventions of certain civil penalty provisions.
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An authorised infringement notice officer may give an infringement notice if they have reasonable grounds to believe that a person has contravened one of the following civil penalty provisions in Part 8 of the Telecommunications Act:
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the wholesale-only requirements and ancillary conduct in subsections 142C(2) and (4) and 143(2) and (5);
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the requirement to comply with conditions and limitations of determinations under subsection 143A(1) or (2) (class exemptions) and ancillary conduct under subsections 143B(1) and (2);
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the requirement to comply with functional separation undertakings (standard, joint, or deemed) and ancillary conduct in subsections 151ZD(1) and (2);
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the non-discrimination obligations and ancillary conduct in subsections 151ZF(1), (4) and (5) and 151ZG(2), (3) and (4);
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reporting obligations following the giving of a revocation notice in relation to a standard or joint functional separation undertaking and ancillary conduct in subsections 151ZA(3) and (4);
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the requirement to notify changes in control of a person who gave an undertaking and ancillary conduct in subsections 151ZB(1), (3) and (5);
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the requirements to publish offers and a statement of differences between an access agreement (including variations) and the offer, and ancillary conduct in subsections 151ZH (1), (2), (2A) and (3); and
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the prohibition on anti-avoidance schemes and ancillary conduct in subsections 151ZI(1) and (2).
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In some circumstances, an authorised infringement notice officer may also give an infringement notice if they have reasonable grounds to believe that a person has contravened section 68 (compliance with carrier licence conditions) or section 101 (compliance with service provider rules) insofar as the condition/rule relates to the civil penalty provisions in sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI of the Telecommunications Act.
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An infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.
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The ACCC’s approach to the use of infringement notices
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Generally speaking, an authorised infringement notice officer will only consider issuing an infringement notice where the ACCC is likely to seek a court-based resolution should the recipient of the notice choose not to pay. Before an authorised infringement notice officer gives an infringement notice, the ACCC will have turned its mind to the prospect of non-compliance and be prepared to proceed to court as a likely alternative.
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There are a range of factors which an authorised infringement notice officer may consider in determining whether an infringement notice should be given. These will include the objects underpinning the Telecommunications Act. The authorised infringement notice officer may also consider:
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the nature, circumstances and seriousness of the conduct;
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the duration of the conduct and whether it is ongoing;
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the impact of the conduct, and whether it has caused significant harm or detriment;
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the corporate culture of compliance of the person; and
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the need for specific and general education and/or deterrence.
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Examples of circumstances where an authorised infringement notice officer may be more likely to give an infringement notice in respect of an alleged contravention include where:
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the alleged contravening conduct is relatively minor or less serious;
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there have been isolated or non-systemic instances of non-compliance;
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there have been lower levels of harm or detriment;
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the facts are not in dispute or where the authorised infringement notice officer considers the circumstances giving rise to the allegations are not controversial; and
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infringement notices form part of a broader telecommunications industry compliance and enforcement program following ACCC concerns about industry wide conduct.
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Examples of circumstances where an authorised infringement notice officer may be less likely to give an infringement notice, and other forms of enforcement action may instead be considered appropriate, in respect of an alleged contravention include where:
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the alleged conduct is more serious in nature and warrants consideration by the court;
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there has been significant harm or detriment arising from the alleged conduct;
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a person has obtained a significant financial or other advantage from the alleged conduct;
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multiple alleged contraventions have occurred and/or where the alleged contraventions occurred over an extended period of time;
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there are concerns that the alleged conduct may be continuing;
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there are questions about whether the alleged conduct occurred within the 12-month period in which an authorised infringement notice officer may give an infringement notice;
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the matter raises complex questions about the interpretation of a provision of Part 8 of the Telecommunications Act; and
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the ACCC has previously taken action against the person involved in the alleged contravention – particularly when recent or very similar.
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In each case, all the relevant facts and circumstances will be taken into account in determining whether an infringement notice should be given.
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An authorised infringement notice officer may give multiple infringement notices, each relating to a separate alleged contravention, where they consider it appropriate to do so, taking into account all of the circumstances. In deciding whether to give more than one infringement notice, the authorised infringement notice officer will take into account a range of considerations including whether:
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the authorised infringement notice officer believes that there have been systemic instances of non-compliance;
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the alleged contraventions have occurred in a number of states or territories; and
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there are circumstances which make it desirable to give multiple notices to deter similar conduct by the specific business or individual involved or the broader industry.