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Open Letter: An independent what?

In CommsDay today the new Telecommunications Industry Ombudsman, Cynthia Gebert, has been quoted as seeking greater regulation on the Telecommunications Sector, reportedly to bring it in line with other industry sectors, such as Energy, Water and Gas.

As a member of the TIO, we fund part of the TIO’s operations every year. We agree to a complaints process where individuals and small business customers can make complaints to the ombudsman, and we agree that in return for funding this, they will provide a fair and impartial mediation process for the consumer. We appreciate that an independent body is often necessary in disputes – particularly in cases when telecommunications providers get things wrong; and we may be blind to our own faults.

Gebert comments that in her experience in other critical infrastructure sectors, direct regulation has seen better outcomes for consumers – as has been clearly seen in the recent power shortages in NSW, Queensland and Victoria. It seems a clear signal from the TIO that they see their role moving to being a “rule enforcer” – at a time when their remit and policy are currently under review – and is a clear signal of their desired intention of the outcome of the review. Gebert’s comments (for example “Where’s the protection for consumers?”) indicate the view of the TIO that consumers are the party in these negotiations that require representation – and that it’s the “big bad telcos” who need to be brought into line.

Of course, it’s not like telecommunications is unregulated.

Carriage Service Provides and Carriers must sign up to the TIO and become members of the scheme. They must comply with all required determinations within the Telecommunications Act, including security, operational standards and other matters. They must comply with independent industry codes developed with Government and Industry as approved by the ACMA. They must attest their compliance with the Telecommunications Code of Practice (TCP) with Communications Compliance Ltd, and pay the fees as required. The ACMA enforces these guidelines, and has been known to take enforcement action against suppliers – large and small – who have failed to comply. In addition, the ACCC regularly investigates Telecommunications Service Providers for behaviour and conduct, and issues directives and fines as required.

And in the midst of all of this, the TIO is supposed to be a fair and independent arbitrator in disputes where a telco has got it wrong.

Most smaller service providers (like us) think they aren’t.

Today, many TIO complaints for fixed carriage services are in fact the fault of the underlying network – provided most commonly by nbn or Opticomm at present. The TIO appears to have limited power — or at the very least, an extreme unwillingness — to consider whether complaints are the fault of the carriers who have failed to meet their performance standards and obligations; and will not intervene to help a CSP who has been trying – and failing – to get the underlying network to meet their obligations.

Equally, even acknowledging that a provider is the subject of vexatious or incorrect complaint, the TIO more often than not recommend the provider settles the complaint in the favour of the consumer (and provide substantial cash compensation) rather than acting independently and fairly towards the provider and ruling the complaint as invalid.

In both of these scenarios, the CSP is being unfairly penalised by the independent body; rather than being supported to achieve a fair and correct outcome for the consumer.

While it’s true that reform is needed for the TIO – it would seem that the reform should be focused on providing resources to the TIO to effectively understand the complexity of telecommunications complaints and supply, and to enable better and smoother relationships between RSPs, their aggregators, and their carriers – rather than simply creating more sticks with which to beat Telcos – who by and large are doing the right things by consumers.

This would deliver better outcomes to consumers.

The TIO’s independent review closed for public submissions on the 15th May 2022 and is being completed by the Queen Margaret University in the UK. We responded to this review as part of a joint industry submission.

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