Web viewwith respect to the removal of 6 payphones with the Cabinet ID numbers 02428535X2, 03632604X2, 07463956X2, 08839800X2, 07549119X2 and 08835220X2:

Final Investigation ReportFile No. ACMA2013/1098-6

Subject of investigation

Telstra Corporation Limited

ACN 051 775 556

Period under Investigation

1 January 2012 – 31 March 2013 (inclusive)

Relevant Legislation Telecommunications Universal Service Obligation (Payphone Complaint Rules) Determination 2011

Telecommunications Universal Service Obligation (Public Consultation on the Location or Removal of Payphones) Determination 2011

Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011

Telecommunications (Consumer Protection and Service Standards) Act 1999

Telecommunications Act 1997

Summary of findings

After completing the investigation, the Australian Communications and Media Authority (the ACMA) has found that Telstra Corporation Limited (Telstra) has:

(i) with respect to the removal of 6 payphones with the Cabinet ID numbers 02428535X2, 03632604X2, 07463956X2, 08839800X2, 07549119X2 and 08835220X2:

(a) contravened subsection 20(1) of the Telecommunications Universal Service Obligation (Location of Payphones) Determination 2011 (the Payphone Location Determination) and has therefore breached subsection 12EF(2) of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the TCPSS Act) and section 68 of the Telecommunications Act 1997 (the Telecommunications Act); and

(b) contravened its obligations under Division 2 of Part 2 of the Telecommunications Universal Service Obligation (Public Consultation on the Location or Removal of Payphones) Determination 2011 (the Payphone Consultation Determination) and

ACMA Investigation Report – Telstra – Compliance with payphone regulatory obligations

has therefore breached subsection 12EG(3) of the TCPSS Act and section 68 of the Telecommunications Act; and

(ii) with respect to the relocation of 2 payphones with the Cabinet ID numbers 03934772X2 and 07329707X2:

(a) contravened subsection 20(1) of the Payphone Location Determination and has therefore breached subsection 12EF(2) of the TCPSS Act and section 68 of the Telecommunications Act; and

(b) contravened its obligations under Divisions 1 and 2 of Part 2 of the Payphone Consultation Determination and has therefore breached subsection 12EG(3) of the TCPSS Act and section 68 of the Telecommunications Act; and

(iii) with respect to its website, as at 23 July 2013, contravened subsections 7(1) and 8(2) of the Telecommunications Universal Service Obligation (Payphone Complaint Rules) Determination 2011 (the Complaint Rules Determination) and has therefore breached subsection 12EH(2) of the TCPSS Act and section 68 of the Telecommunications Act.

Background

1. This report presents the findings of the ACMA in relation to the investigation into the relocation and removal by Telstra of payphones supplied by it in its role as the primary universal service provider (PUSP) between 1 January 2012 - 4 September 2012 and 5 September 2012 - 31 March 2013.1

2. The investigation was commenced under paragraphs 510(1)(a) and 510(1)(aa) of the Telecommunications Act on 8 April 2013. On 22 April 2013, the ACMA issued Telstra with a notice under subsection 521(2) of the Telecommunications Act requiring the provision of information and documents in relation to payphone removals for the period 1 January 2012 to 31 March 2013 (the ACMA Notice).

3. Telstra provided its response to that notice on 24 May 2013 in the document entitled “Response to the information required by the questions in Schedule B to the Australian Communications and Media Authority’s subsection 521(2) notice dated 22 April 2013” (the First Response).

4. A report containing the preliminary investigation findings and an invitation to Telstra to provide a submission to the ACMA about the matters to which this investigation relates was sent to Telstra on 8 August 2013 (the Preliminary Investigation Report). Telstra provided its submission in response on 29 August 2013 (the Second Response).

1 The findings relate to payphone removals during 1 January 2012 - 4 September 2012 and 5 September 2012 - 31 March 2013 where no payphone remained on site. This report makes no findings with respect to payphone removals where at least one payphone remained at the site.

ACMA Investigation Report – Telstra – Compliance with payphone regulatory obligations 2

Relevant legislative provisions

5. The Payphone Consultation Determination and the Payphone Location Determination set out the obligations of a PUSP with respect to the relocation and removal of payphones. These obligations are discrete but related.

6. Subsection 12EF(2) of the TCPSS Act provides that a PUSP must comply with the Payphone Location Determination. Subsection 12EG(3) of the TCPSS Act provides that a PUSP must comply with the Payphone Consultation Determination.

7. Under section 61 of the Telecommunications Act a carrier licence is subject to the condition that a carrier must comply with, amongst other things, the TCPSS Act (clause 1 of Schedule 1 to the Telecommunications Act). Under section 68 of the Telecommunications Act a carrier must not contravene a condition of its carrier licence.

8. Subsection 19(1) of the Payphone Location Determination provides that a PUSP may only install a payphone at a site which is not an existing payphone site if the provider has complied with the rules in relation to the process for public consultation on the location of payphones set out in the Payphone Consultation Determination.

9. Subsection 20(1) of the Payphone Location Determination provides that if a PUSP must ensure that at least one payphone is located at a site in order to comply with section 6 of the Determination, a payphone may only be removed from that site if the removal decision has been made in accordance with the rules in relation to the process for public consultation on the removal of a payphone set out in the Payphone Consultation Determination and one or more of four specified criteria applies.

10. Subsection 4(3) of the Public Consultation Determination provides that if a PUSP proposes to remove a payphone from a site at which the PUSP must ensure that a payphone is located in order to comply with the rules in the Payphone Location Determination, the PUSP must comply with:

(a) either:

(i) Division 2 of Part 2 where, if that removal were to occur, no payphone would remain at the site; or

(ii) Division 3 of Part 2 where, if that removal were to occur, at least one payphone would remain at the site; and

(b) Division 4 of Part 2.

11. Subsection 4(4) of the Public Consultation Determination provides that if a PUSP proposes to relocate a payphone from one site (current site) to another site (new site) the PUSP must comply with:

(a) in relation to the proposal to install a payphone at the new site - Division 1 of Part 2; and

(b) in relation to the removal of the payphone from the current site, either:


(i) Division 2 of Part 2 where, if that removal were to occur, no payphone would remain at the site and the new site is located more than 200 metres from the current site; or

(ii) Division 3 of Part 2 where subparagraph (i) does not apply to the removal; and

(c) Division 4 of Part 2.

Payphone location rules (installation) – Consultation under Division 1 of Part 2 of the Payphone Consultation Determination

12. Where a PUSP proposes to install a payphone at a site, the PUSP must, unless subsection 5(8) applies, comply with the notification requirements imposed under section 5 of the Payphone Consultation Determination (subsection 5(1) of the Payphone Consultation Determination).

13. Subsection 5(8) provides that the notification requirements do not apply where the payphone is proposed to be installed at a site located at a place specified in paragraph 5(8)(b)2 and the proposal is in accordance with a commercial agreement between the PUSP and the owner of the site at which the payphone is proposed to be located.

Payphone location rules (installation) – Notification requirements

14. Subsection 5(2) of the Payphone Consultation Determination provides that a PUSP must provide written notification of the payphone location proposal to the relevant local government body, and the owners or occupiers of each residential and business premises within 50 metres of the proposed site. The notification must include the following information (subsection 5(3)):

(a) a description of the site where the PUSP proposes to install the payphone;

(b) a description of the exact location on the site upon which the PUSP proposes to install the payphone;

(c) the type of payphone the PUSP proposes to install;

(d) the date by which the PUSP intends to make a final decision regarding the proposal; and

(e) an explanation of how the recipient of the notification, or any other person, may make a submission to the PUSP regarding the proposal before a final decision is made.

15. Subsection 5(4) further provides that the PUSP must send the notification at least 42 days prior to the date specified in the notice as the date by which the PUSP intends to make a final decision regarding the proposal.

2 Paragraph 5(8)(b) specifies the places as an airport, a transport hub, a commercial retail site (including a shopping centre), a campus of a tertiary education institution, a correctional facility or a hospital or other medical facility.


16. Paragraph 5(5)(a) requires a PUSP to publish a notification of the payphone location proposal in a local newspaper at least 42 days prior to the date by which the PUSP intends to make a final decision regarding the proposal.

17. Paragraph 5(5)(b) requires a PUSP to publish a notification of the payphone location proposal on its website at least 42 days prior to the date by which the PUSP intends to make a final decision regarding the proposal. The notification must be maintained on the website until the date of the final decision regarding the installation of the payphone (subsection 5(7)).

18. A notification under subsection 5(5) must include:

(a) the same information specified in subsection 5(3); and

(b) an invitation to persons to make written submissions to the PUSP regarding the payphone location proposal before a final decision is made; and

(c) an explanation of how a person may make such a submission.3

Payphone location rules (installation) – Final decision requirements

19. A PUSP may only make a final decision to install a payphone at a site if the PUSP has given notification of a payphone location proposal in relation to the installation of a payphone at the site in accordance with section 5 (subsection 6(1) of the Payphone Consultation Determination).

20. A final decision may not be made earlier than the date specified in the notifications provided under section 5, being the date by which the PUSP intended to make a final decision in relation to the proposal (subsection 6(2) of the Payphone Consultation Determination).

21. A PUSP must, as soon as practicable after making a final decision on installing a payphone, provide written notification of the decision to the relevant local government body, and any person who made a submission regarding the proposal before the final decision was made (subsection 7(1) of the Payphone Consultation Determination). The notice must include the information specified in subsection 7(2).

Payphone removal rules (no payphone at a site) – Consultation requirements under Division 2 of Part 2 of the Payphone Consultation Determination

22. Where a PUSP proposes to remove a payphone and, if that removal was to occur, no payphone would remain at the site, the PUSP must, unless subsection 8(2) applies, comply with the notification requirements imposed under sections 9-13 of the Payphone Consultation Determination (subsection 8(1) of the Payphone Consultation Determination).4

3 Subsection 5(6) of the Payphone Consultation Determination.4 Where a PUSP proposes to remove a payphone and, if that removal was to occur, at least one payphone would remain at the site, the PUSP must provide notification in accordance with section 15


23. Subsection 8(2) provides an exception from the obligations imposed under Division 2 of Part 2 of the Payphone Consultation Determination where a payphone removal arises as a direct result of the property owner of the site at which the payphone is located having withdrawn its consent to retain the installation of the payphone at the site.

Payphone removal rules (no payphone at a site) – Notification requirements

24. Subsection 9(2) of the Payphone Consultation Determination sets out a number of discrete notification obligations (paragraphs 9(2)(a) to (d)). Failure to comply with any one of these specified obligations constitutes a contravention of subsection 9(1).

25. Paragraph 9(2)(a) of the Payphone Consultation Determination requires a PUSP, in accordance with section 10, to display a notice on the payphone or payphone cabinet, or where reasonably practicable, near the payphone which is proposed to be removed.

26. The display notice under paragraph 9(2)(a) must meet certain placement, readability and visibility conditions and include certain information set out in subsections 10(1) and 10(2). In addition, the notice must contain all of the information specified in subsection 10(3) of the Payphone Consultation Determination.

27. Under subsection 10(3) of the Payphone Consultation Determination the following information must be included in the display notice:

(a) a description of the site from which the payphone is proposed to be removed;

(b) details of the location of the nearest payphone that will be available if the payphone is removed;

(c) the date by which the PUSP intends to make a final decision on the removal proposal;

(d) an explanation of how to make a submission to the PUSP about the removal proposal before the final decision is made; and

(e) details of the website address for downloading the payphone consultation document required under section 13 of the Payphone Consultation Determination.

28. The display notice must be on display at least 42 days prior to the date by which the PUSP intends to make a final decision regarding the payphone removal proposal (subsection 10(4) of the Payphone Consultation Determination).

29. Paragraph 9(2)(b) of the Payphone Consultation Determination also requires a PUSP to provide, in accordance with section 11, written notification of the proposal to remove a payphone to the relevant local government body and the owner of the land or occupier (if the land is not occupied by the owner) from which it is proposed the payphone will be removed.

of the Payphone Consultation Determination. This report makes no findings with respect to payphone removals during 1 January 2012 - 4 September 2012 and 5 September 2012 - 31 March 2013 where at least one payphone remained at the site.


30. The written notification of the proposal must include the information specified in subsection 10(3) and a PUSP must provide this notification at least 42 days prior to the date by which the PUSP intends to make a final decision regarding the payphone removal proposal (subsection 11(2) of the Payphone Consultation Determination).

31. Paragraph 9(2)(c) requires a PUSP to publish, in accordance with section 12, a notification of the payphone removal proposal in a local newspaper and on its website. A notification under paragraph 9(2)(c) must include the same information specified in subsection 10(3) (subsection 12(1) of the Payphone Consultation Determination).

32. In relation to the notification in the newspaper, subsection 12(2) further requires that the notice be published in the local newspaper at least 42 days prior to the date by which the PUSP intends to make a final decision regarding the payphone removal proposal.

33. In relation to the notification on the PUSP’s website, subsection 12(3) requires that the notification be published prominently on the first page of the PUSP’s section of its website relating to payphones at least 42 days prior to the date by which the PUSP intends to make a final decision regarding the payphone removal proposal. The notification must be maintained on the website until the date of the final decision regarding the removal of the payphone.

34. Paragraph 9(2)(d) of the Payphone Consultation Determination requires a PUSP, in accordance with section13, to prepare and publish a payphone consultation document (PCD).5 The PCD must comply with any guidelines prepared by the ACMA that set out the format for such a document and include the information specified in paragraph 13(1)(b) (subsection 13(1) of the Payphone Consultation Determination).

35. Subsection 13(2) further requires the PUSP to publish a copy of the PCD on the first page of the PUSP’s section of its website relating to payphones at least 42 days prior to the date by which the PUSP intends to make a final decision regarding the payphone removal proposal. The PUSP must ensure that a copy of the PCD remains accessible on its website for the duration of that 42 day period.

Payphone removal rules (no payphone at a site) – Final decision requirements

36. A PUSP may only make a final decision to remove a payphone from a site if it has given notification of a payphone removal proposal in accordance with the rules set out in Division 2 of Part 2 (subsection 16(1) of the Payphone Consultation Determination).

37. A final decision must not be made prior to the date notified by the PUSP as the date by which it intends to make a final decision regarding the proposal (subsection 16(2) of the Payphone Consultation Determination).

38. A PUSP must, as soon as practicable after making a final decision on removing a payphone, provide written notification of the decision to the relevant local government body, the owner or occupier of the land on which the payphone is located and any

5 Subsection 9(3) provides that a PUSP is not required to prepare a PCD in relation to a payphone removal proposal in the circumstance where there would be at least another payphone remaining at the site at which the payphone (which is the subject of the removal proposal) is located.


person who made a submission regarding the proposal to remove a payphone prior to the final decision (subsection 17(1) of the Payphone Consultation Determination). The notice must include the information specified in subsection 17(2).

Complaint processes – website requirements

39. The Complaint Rules Determination sets out the obligations of the PUSP with respect to the process for the resolution of complaints about the location or removal of payphones.

40. Subsection 12EH(2) provides that a PUSP must comply with the Complaint Rules Determination.

41. Section 7 of the Complaint Rules Determination provides that the PUSP must make the payphone complaint process publicly available and accessible to all persons who may wish to make a complaint about the location or removal of a payphone, including by publishing details of the process prominently on the first page of the PUSP’s section of its website relating to payphones. The details must include information about the timeframes within which a person may make a complaint to the PUSP about the location or removal of a payphone and to the ACMA if the person is dissatisfied with the PUSP’s response to a complaint about a final decision to locate or remove a payphone (subsection 7(2)).

42. Section 8 of the Complaint Rules Determination requires the PUSP to provide low cost or free, flexible, means by which a complaint may be made by a person about the location or removal of a payphone. The PUSP must make the details of the means by which a person may make a complaint publicly available including by:

(a) publishing the details prominently on the first page of the PUSP’s section of its website relating to payphones;

(b) maintaining freecall general service contact numbers and multi-lingual enquiry lines by which persons who wish to make written complaints may obtain information about the means by which a complaint may be made;

(c) maintaining general service contact numbers and multi-lingual enquiry lines (accessible for free or for low cost) to enable persons who wish to make oral complaints to do so; and

(d) publishing details of those general service contact numbers and multi-lingual enquiry lines on the first page of the PUSP’s section of its website relating to payphones.

Relevant facts

43. Telstra is a PUSP within the meaning of section 12D of the TCPSS Act.

44. Between 1 January 2012 - 4 September 2012 and 5 September 2012 - 31 March 2013 Telstra removed a total of 356 payphones (185 and 171 in each respective period).6

6 See item 1 on page 2 of the First Response and item 1 on page 15 of the First Response.


45. Of the 356 payphones removed between 1 January 2012 and 31 March 2013, the removal of 251 payphones resulted in no payphone remaining at the site from which the payphone was removed.7

46. Telstra advised that it relied upon the exemption in subsection 8(2) of the Payphone Consultation Determination from the requirement to conduct public consultation about the removal of a particular payphone in relation to 229 of the 251 payphones mentioned above.8 In order to remove each of those 229 payphones Telstra would have been required to be satisfied of one or more of the four criteria specified in paragraph 20(1)(b) of the Payphone Location Determination. The ACMA has not made any findings in relation to Telstra’s compliance with paragraph 20(1)(b) in relation to the 229 payphones.

47. Of the 22 payphones in respect of which Telstra did not rely upon the exemption in subsection 8(2) of the Payphone Consultation Determination from the requirement to conduct public consultation about the removal of the payphone, 159 were removed in the period 1 January 2012 – 4 September 2012 and 710 were removed in the period 5 September 2012 – 31 March 2013. Two of the 22 payphones were relocated to a new payphone site.

The ACMA’s Findings

Payphone removals

48. In respect of 8 of the 22 payphones removed between 1 January 2012 and 31 March 2013 the ACMA has found that Telstra failed to comply with specified obligations under the Payphone Consultation Determination and the Payphone Location Determination. As a consequence, Telstra has breached subsections 12EF(2) and 12EG(3) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act.

49. Set out below is a summary of the ACMA’s findings in relation to each of the 8 payphones:

Cabinet ID number 07463956X2 (Payphone 07463956X2)

(a) In relation to Payphone 07463956X2, the ACMA has found breaches of:(i) subsections 9(1), 16(1) and 16(2) of the Payphone Consultation

Determination and subsection 12EG(3) of the TCPSS Act and section 68 of the Telecommunications Act; and

(ii) subsection 20(1) of the Payphone Location Determination and subsection 12EF(2) of the TCPSS Act and section 68 of the Telecommunications Act.

Cabinet ID Number 03632604X2 (Payphone 03632604X2)

(b) In relation to Payphone 03632604X2, the ACMA has found breaches of:

7 See item 2 on page 2 of the First Response and item 2 on page 15 of the First Response.8 See item 4 on pages 6-9 of the First Response and item 4 on pages 18-21 of the First Response.9 The table at item 6(b) on page 13 of the First Response lists the 15 payphones. 10 The table at item 5(b) on pages 21-22 of the First Response lists the 7 payphones.


(i) subsections 9(1) and 16(1) of the Payphone Consultation Determination and subsection 12EG(3) of the TCPSS Act and section 68 of the Telecommunications Act; and



(c) In relation to Payphone 08839800X2, the ACMA has found breaches of:(i) subsections 9(1) and 16(1) of the Payphone Consultation Determination and

subsection 12EG(3) of the TCPSS Act and section 68 of the Telecommunications Act; and



(d) In relation to Payphone 02428535X2, the ACMA has found breaches of:(i) subsections 9(1) and 16(1) of the Payphone Consultation Determination and




(e) In relation to Payphone 07549119X2, the ACMA has found breaches of:(i) subsections 9(1) and 16(1) of the Payphone Consultation Determination and




(f) In relation to Payphone 08835220X2, the ACMA has found breaches of:(i) subsections 9(1) and 16(1) of the Payphone Consultation Determination and




(g) In relation to Payphone 03934772X2, the ACMA has found breaches of:(i) subsections 5(1), 6(1), 6(2), 9(1), 16(1) and 16(2) of the Payphone

Consultation Determination and subsection 12EG(3) of the TCPSS Act and section 68 of the Telecommunications Act; and




(h) In relation to Payphone 07329707X2, the ACMA has found breaches of:(i) subsections 5(1), 9(1) and 16(1) of the Payphone Consultation

Determination and subsection 12EG(3) of the TCPSS Act and section 68 of the Telecommunications Act; and


50. Set out in Attachments A to H is a description of the relevant facts in relation to each of those 8 payphones and the findings of the ACMA in relation to those facts based on information and evidence provided by Telstra in the First Response and the Second Response.

51. After having regard to submissions made by Telstra in the Second Response, the ACMA has not proceeded to make findings in relation to some matters where preliminary breach findings were expressed in the Preliminary Investigation Report. In particular, this report does not find that Telstra was not entitled to rely on the exception in subsection 8(2) of the Payphone Consultation Determination in relation to 57 payphones identified in the table following paragraph 31 of the Preliminary Investigation Report.11

52. More detail in relation to the specific matters where the ACMA has not proceeded to make findings in relation to particular payphones is set out in Attachments A to H. In addition, relevant parts of Attachments A to H also discuss certain aspects of Telstra’s comments in the Second Response in respect of which the ACMA has reached a different view to that expressed by Telstra.

53. However, Attachments A to H do not discuss Telstra’s submissions in the Second Response about preliminary findings made in the Preliminary Investigation Report that Telstra breached subsection 9(1) of the Payphone Consultation Determination in relation to the removal of each of the 8 payphones on the basis that it failed to prepare and publish a PCD in accordance with section 13 of the Payphone Consultation Determination, as required by paragraph 9(2)(d).

54. The ACMA has considered Telstra’s submissions in this regard and notes Telstra’s comments that it was in discussions with the ACMA prior to 5 September 2012 about the development of the Telecommunications (Payphone Consultation Document) Guidelines 2012 and that much of the format and content of the PCD was only determined during the course of that consultation process.12 In the view of the ACMA, Telstra’s submissions in this regard are relevant to the resolution of the investigation and go to what, if anything, the ACMA might decide to do in relation to any failures by Telstra to prepare and publish a PCD prior to 5 September 2012. However, in the view of the ACMA, Telstra’s submissions in this regard do not go to the proper interpretation of the Payphone Consultation Determination.

55. In the view of the ACMA, the requirement in paragraph 9(2)(d) of the Payphone Consultation Determination to prepare and publish a PCD in accordance with section 13

11 Paragraph 32 of the Preliminary Investigation Report; pages 3-5 of the Second Response.12 Page 1 and 6 of the Second Response.


applied regardless of whether or not the ACMA had prepared guidelines for the purposes of paragraph 13(1)(a). In support of this view the ACMA notes the following:

(a) Section 9 of the Payphone Consultation Determination sets out the notification requirements where a PUSP proposes to remove a payphone that is the last payphone at a site, including the display of a notice of intention to remove and the giving of written notifications to that effect (subsection 9(2)). The obligations are cumulative, that is, each one of the requirements under subsection 9(2) must be complied with. It includes that the PUSP prepare and publish a PCD in accordance with section 13 (paragraph 9(2)(d)); and

(b) The display notice referred to in section 10, the written notifications referred to in section 11 and the newspaper and website notifications referred to in section 12 must each include details of the website address for downloading a copy of the PCD (paragraph 10(3)(e)).

56. In the view of the ACMA, the above obligations demonstrate that the preparation and publication of a PCD is a crucial component of the public consultation process established by the Payphone Consultation Determination. Indeed, the manner in which those provisions are drafted and the scheme of the determination, indicate that a PCD must always be prepared and published in the event that the PUSP takes steps to remove the last payphone from a particular site.

57. This view is reinforced by the inclusion of subsection 9(3) in the Payphone Consultation Determination which states that “A [PUSP] is not required to prepare a PCD in relation to a payphone removal proposal in the circumstance where there would be at least another payphone remaining at the site at which the payphone (which is the subject of the removal proposal) is located”. The note to subsection 13(2) of the Payphone Consultation Determination also highlights that subsection 9(3) sets out the circumstance where a payphone consultation document is not required to be prepared. In the view of the ACMA, the inclusion of subsection 9(3) and the note following subsection 13(2) are noteworthy because they suggest that subsection 9(3) sets out the only circumstances in which a PCD is not required to be prepared.

58. The ACMA’s findings in relation to Telstra’s obligation under paragraph 9(2)(d) of the Payphone Consultation Determination to prepare and publish a PCD in accordance with section 13 in relation to relevant payphones are set out in Attachments A to H.

Complaint Rules Determination

59. The ACMA has found that as at 23 July 2013, Telstra failed to comply with subsections 7(1) and 8(2) of the Complaint Rules Determination and has therefore breached subsection 12EH(2) of the TCPSS Act and section 68 of the Telecommunications Act. These findings are set out in Attachment I.

60. The ACMA notes the statement in the Second Response that, following receipt of the Preliminary Investigation Report, Telstra updated its website to ensure that the first page of its payphones website met the requirements of the Complaint Rules Determination. Searches of the first page of Telstra’s payphones website conducted on


16 September 2013 confirmed that the website met the requirements of subsections 7(1) and 8(2) of the Complaint Rules Determination.

List of Attachments

Attachment A - Findings in relation to Payphone 07463956X2 - payphone at 12 Flynn Street, Harlaxton

Attachment B - Findings in relation to Payphone 03632604X2 - payphone at 7 Blackwood Drive, Rocherlea

Attachment C - Findings in relation to Payphone 08839800X2 - payphone on corner of Alexander Road and Skipper Street, Mount Barker

Attachment D - Findings in relation to Payphone 02428535X2 - payphone on the corner of Ball St and Princes Highway, Woonona

Attachment E - Findings in relation to Payphone 07549119X2 - payphone at 89 Bulcock Street, Caloundra

Attachment F - Findings in relation to Payphone 08835220X2 - payphone at 194 Grange Road, Flinders Park

Attachment G - Findings in relation to Payphone 03934772X2 - payphone at 146 Victoria Street, Carlton relocated to 493 Swanston Street, Melbourne

Attachment H - Findings in relation to Payphone 07329707X2 - payphone at 145 Teviot Road, Greenbank relocated to 26 Pub Lane, Greenbank

Attachment I - Findings in relation to Telstra’s compliance with the Complaint Rules Determination


Attachment A

Findings in relation to Payphone 07463956X2 - payphone at 12 Flynn Street, Harlaxton

Matters in respect of which findings have not been made following consideration of the Second Response

A1. In the Preliminary Investigation Report, the ACMA made preliminary findings to the following effect in relation to Payphone 07463956X2:

(a) that Telstra breached subsection 9(1) of the Payphone Consultation Determination on the basis that Telstra did not display a notice on Payphone 07463956X2 for at least 42 days before the date on which it intended to make a decision about the removal of the payphone as required by paragraph 9(2)(a) and subsection 10(4)13;

(b) that Telstra breached subsection 17(1) of the Payphone Consultation Determination in relation to Payphone 07463956X2 on the basis that certain notifications did not include sufficient details of how a person who disagrees with Telstra’s final decision may notify the ACMA through the relevant ACMA contact person and on the basis that Telstra did not provide written notification of the final decision which contained the information required by subsection 17(2)14; and

(c) that Telstra breached section 20 of the Payphone Location Determination in relation to Payphone 07463956X2 on the basis that it did not have regard to the call usage patterns in relation to the payphone as required by paragraph 20(2)(b) of that determination.15

A2. After having regard to Telstra’s comments in the Second Response, the ACMA has not proceeded to make any of the above findings in relation to Payphone 07463956X2 in this report.

Compliance with the Payphone Consultation Determination

Section 9 – notification requirements

13 Paragraphs 38 and 52 of the Preliminary Investigation Report; page 16 of the Second Response. 14 Paragraphs 61-63 of the Preliminary Investigation Report; page 16 of the Second Response.15 Paragraphs 69-70 of the Preliminary Investigation Report; page 18 of the Second Response.


A3. The letter from '''''''' ''''''''''' of Telstra to Toowoomba Regional Council dated 9 May 2012 with respect to Payphone 07463956X2 did not, as required by subsection 11(1) and paragraph 10(3)(e) of the Payphone Consultation Determination, include details of the website address for downloading a copy of the PCD.16 Telstra therefore failed, in accordance with section 11 of the Payphone Consultation Determination, to provide written notification of the proposal to the relevant local government body as required by subparagraph 9(2)(b)(i).

A4. The ACMA Notice required Telstra to provide, in relation to specified payphones removed in the period from 1 January to 4 September 2012 (of which Payphone 07463956X2 was one):

(a) a copy of the notification of payphone removal proposal published on Telstra’s website as required by subparagraph 9(2)(c)(ii) of the Payphone Consultation Determination along with certain other information; and

(b) a copy of the PCD prepared as required by paragraph 9(2)(d) of the Payphone Consultation Determination along with certain other information.

A5. Telstra, with respect to this aspect of the ACMA Notice, confirmed:

(a) in relation to the notifications required to be published by subparagraph 9(2)(c)(ii), “No relevant notifications exist”17; and

(b) in relation to the PCD and other information, “No relevant documents exist”.18

A6. The exception from the requirement to prepare a PCD in subsection 9(3) of the Payphone Consultation Determination does not apply in respect of Telstra’s proposal to remove Payphone 07463956X2.19

A7. In light of Telstra’s response to the ACMA Notice, the ACMA is of the view that Telstra failed:

(a) in accordance with section 12, to publish a notification of its proposal to remove Payphone 07463956X2 on its website as required by subparagraph 9(2)(c)(ii); and

(b) in accordance with section 13, to prepare and publish a PCD in relation to its proposal to remove Payphone 07463956X2 as required by paragraph 9(2)(d).

16 Item 5(b) on page 10 of the First Response.17 See item 5(d) on page 11 of the First Response.18 See item 5(e) on page 11 of the First Response.19 The First Response confirms that Payphone 07463956X2 fell into a class of payphones which was

removed from a site between 1 January 2012 and 4 September 2012 (inclusive), where, after the payphone was removed, no payphone remained at the site. See item 3 on page 5 of the First Response.


A8. The ACMA finds that in respect of the proposal to remove Payphone 07463956X2 Telstra did not comply with subsection 9(1) of the Payphone Consultation Determination as it failed to:

(a) provide written notification of the payphone removal proposal in accordance with section 11 of the Payphone Consultation Determination as required by subparagraph 9(2)(b)(i) of that determination;

(b) publish a notification on its website in accordance with section 12 of the Payphone Consultation Determination, as required by subparagraph 9(2)(c)(ii) of that determination; and

(c) prepare and publish a PCD in accordance with section 13 of the Payphone Consultation Determination, as required by paragraph 9(2)(d) of that determination.


Section 16 – final decision

A9. In addition, the ACMA finds that Telstra has breached subsection 16(1) of the Payphone Consultation Determination by making a final decision on 3 July 2012 when it had not complied with all of the relevant notification requirements in Division 2 of Part 2 of the Payphone Consultation Determination.

A10. In the letters from ''''''''' ''''''''''' of Telstra to ''''' '''''''''' and Toowoomba Regional Council dated 9 July 2012, Telstra stated that its final decision was to proceed with the removal of Payphone 07463956X2. Further information provided in the First Response confirms that this decision was made on 3 July 2012.20

A11. As Telstra contravened subsection 9(1) of the Payphone Consultation Determination in respect of its proposal to remove Payphone 07463956X2, by making the final decision to remove the payphone from the site on 3 July 2012, Telstra contravened subsection 16(1) of the Payphone Consultation Determination.

A12. In addition, the ACMA finds that Telstra has breached subsection 16(2) of the Payphone Consultation Determination by making a final decision on 3 July 2012 which was earlier than the notified date by which Telstra intended to make a final decision.

A13. In the letter from Telstra to ''''' ''''''''' dated 3 May 2012, Telstra advised that a final decision would be made in relation to Payphone 07463956X2 after 19 August 2012. Similarly, in the letter from '''''''' ''''''''''''' of Telstra to Toowoomba Regional Council dated 9 May 2012, Telstra stated that it intended to make a final decision in relation to Payphone 07463956X2 by 19 August 2012. In the letters from Telstra to ''''' ''''''''' and Toowoomba Regional Council dated 9 July 2012, Telstra advised that its final decision was to proceed with the removal of Payphone 07463956X2. By making the final decision to remove the payphone from the site before 19 August 2012 (on 3 July 2012), Telstra contravened subsection 16(2) of the Payphone Consultation Determination.

A14. As Telstra has contravened subsections 16(1) and 16(2) of the Payphone Consultation Determination on 3 July 2012, the ACMA finds that it has breached subsection 12EG(3) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act as at the same date.

Compliance with the Payphone Location Determination

A15. Subsection 20(1) of the Payphone Location Determination provides that if a PUSP must ensure that at least one payphone is located at a site in order to comply with section 6 of the Determination (an eligible site), a payphone may only be removed from that site if:

20 Item 3(b) on page 5 of the First Response in relation to Payphone 07463956X2.


(a) the removal decision has been made in accordance with the rules in relation to the process for public consultation on the removal of a payphone set out in the Payphone Consultation Determination (paragraph 20(1)(a)); and

(b) one or more of four specified criteria applies (paragraph 20(1)(b)).

A16. Payphone 07463956X2 was removed on 14 August 2012.21 Prior to its removal, Payphone 07463956X2 was located at an eligible site.22 It follows that section 20 of the Payphone Location Determination applied in relation to Payphone 07463956X2 and the payphone could only be removed in accordance with that section.

A17. As noted above, the ACMA has found that Telstra’s final decision on 3 July 2012 to remove Payphone 07463956X2 was made in contravention of subsections 16(1) and 16(2) of the Payphone Consultation Determination. Accordingly, Telstra’s decision to remove Payphone 07463956X2 was not made in accordance with the rules in relation to the process for public consultation on the removal of a payphone set out in the Payphone Consultation Determination as required by paragraph 20(1)(a) of the Payphone Location Determination.

A18. The ACMA finds that by removing Payphone 07463956X2 on 14 August 2012, Telstra breached subsection 20(1) of the Payphone Location Determination by failing to satisfy paragraph 20(1)(a).

A19. The ACMA has not reached any concluded view about whether or not there were any additional breaches of subsection 20(1) by reason of any failure to satisfy paragraph 20(1)(b) in relation to Payphone 07463956X2. The ACMA intends to continue to closely monitor Telstra’s compliance with paragraph 20(1)(b) in relation to any future payphone removals.

A20. As Telstra has contravened subsection 20(1) of the Payphone Location Determination on 14 August 2012, the ACMA finds that it breached subsection 12EF(2) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act on that date.

21 See item 3(c) on page 5 of the First Response in relation to Payphone 07463956X2.22 See item 3 on page 5 of the First Response.


Attachment B

Findings in relation to Payphone 03632604X2 - payphone at 7 Blackwood Drive, Rocherlea


B1. In the Preliminary Investigation Report, the ACMA made preliminary findings to the following effect in relation to Payphone 03632604X2:

(a) that Telstra breached subsection 9(1) of the Payphone Consultation Determination on the basis that the display notice on Payphone 03632604X2 did not include a description of the site from which the payphone was proposed to be removed as required by paragraphs 9(2)(a) and 10(3)(a)23; and

(b) that Telstra breached subsection 17(1) of the Payphone Consultation Determination in relation to Payphone 03632604X2 on the basis that certain notifications did not include sufficient details of how a person who disagrees with Telstra’s final decision may notify the ACMA through the relevant ACMA contact person24.

B2. After having regard to Telstra’s comments in the Second Response, the ACMA has not proceeded to make any of the above findings in relation to Payphone 03632604X2 in this report.



B3. The letter from '''''''''''' '''''''''''''''' of Telstra to Launceston City Council dated 14 February 2012 with respect to Payphone 03632604X2, did not, as required by subsection 11(1) and paragraph 10(3)(e) of the Payphone Consultation Determination include details of the website address for downloading a copy of the PCD. Telstra therefore failed, in accordance with section 11, to provide written notification of the proposal to the relevant local government body as required by subparagraph 9(2)(b)(i).

B4. In addition, the letter advised that Telstra intended to make a final decision on the proposal by “30 days from the date of this letter”. Therefore, Telstra did not, as required by subsection 11(2) of the Payphone Consultation Determination, provide notification of the removal proposal at least 42 days prior to the date specified in the notice for the purposes of paragraph 10(3)(c). This meant that Telstra had failed, in accordance with section 11, to provide written notification of the proposal to the relevant local government body as required by subparagraph 9(2)(b)(i).

23 Paragraphs 37 and 52 of the Preliminary Investigation Report; page 9 of the Second Response.24 Paragraphs 62-63 of the Preliminary Investigation Report; page 11 of the Second Response.


B5. As part of the First Response, the ACMA received a copy of an advertisement in relation to the removal of Payphone 03632604X2 (the advertisement). Information provided at item 5(c) on page 11 of the First Response indicates that the advertisement was published in the Launceston Examiner on 17 February 2012. The advertisement did not include details of the website address for downloading a copy of the PCD as required by subsection 12(1) and paragraph 10(3)(e) of the Payphone Consultation Determination.

B6. The advertisement indicated that Telstra intended to make a final decision on the payphone removal proposal by 27 March 2012. This amounted to 39 days notice of Telstra’s intended decision date. Telstra therefore did not meet the requirements of subsection 12(2) in relation to the publication of the advertisement. In order to have met the requirements of subsection 12(2), the advertisement must have been published at least 42 days prior to date specified in the advertisement as the intended decision date, that is 27 March 2012. These facts in relation to the advertisement meant that Telstra had failed, in accordance with section 12, to publish a notification of the payphone removal proposal in a local newspaper as required by subparagraph 9(2)(c)(i).

B7. The ACMA Notice required Telstra to provide, in relation to specified payphones removed in the period from 1 January 2012 to 4 September 2012 (of which Payphone 03632604X2 was one):



B8. Telstra, with respect to this aspect of the ACMA Notice confirmed:



B9. The exception from the requirement to prepare a PCD in subsection 9(3) of the Payphone Consultation Determination does not apply in respect of Telstra’s proposal to remove Payphone 03632604X2.27

25 See item 5(d) on page 11 of the First Response.26 See item 5(e) on pages 11 of the First Response.27 The First Response confirms that Payphone 03632604X2 fell into a class of payphones which was

removed from a site between 1 January 2012 and 4 September 2012 (inclusive), where, after the payphone was removed, no payphone remained at the site. See item 3 on page 5 of the First Response.


B10. In light of Telstra’s response to the ACMA Notice, the ACMA is of the view that Telstra failed:



B11. The ACMA finds that in respect of the proposal to remove Payphone 03632604X2, Telstra did not comply with subsection 9(1) of the Payphone Consultation Determination as it failed to:


(b) publish a notification of the payphone removal proposal in a local newspaper in accordance with section 12 of that determination, as required by subparagraph 9(2)(c)(i) of that determination;

(c) publish a notification on its website in accordance with section 12 of that determination, as required by subparagraph 9(2)(c)(ii) of that determination; and

(d) prepare and publish a PCD in accordance with section 13 of that determination, as required by paragraph 9(2)(d) of that determination.


B12. In addition, the ACMA finds that Telstra breached subsection 16(1) of the Payphone Consultation Determination by making a final decision on 12 April 2012 when it had not complied with all of the relevant notification requirements in Division 2 of Part 2 of the Payphone Consultation Determination.

B13. In the letter from ''''''''''' '''''''''''''''' of Telstra to Launceston City Council dated 12 April 2012, Telstra stated that its decision in relation to Payphone 03632604X2 “did not differ from the original payphone removal proposal”. In the view of the ACMA this was notice to Launceston City Council of a final decision to remove Payphone 03632604X2. Further information provided in the First Response confirms that this final decision was made on 12 April 2012.28

B14. As Telstra contravened subsection 9(1) of the Payphone Consultation Determination in respect of its proposal to remove Payphone 03632604X2, by making the final decision to remove the payphone from the site on 12 April 2012, Telstra contravened subsection 16(1) of the Payphone Consultation Determination.

28 See item 3(b) on page 5 of the First Response in relation to Payphone 03632604X2.


B15. As Telstra has contravened section 16 of the Payphone Consultation Determination on 12 April 2012, the ACMA finds that it has breached subsection 12EG(3) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act on that date.


B16. Subsection 20(1) of the Payphone Location Determination provides that if a PUSP must ensure that at least one payphone is located at a site in order to comply with section 6 of the Determination (an eligible site), a payphone may only be removed from that site if:



B17. Payphone 03632604X2 was removed on 20 July 2012.29 Prior to its removal, the payphone was located at an eligible site.30 It follows that section 20 of the Payphone Location Determination applied in relation to Payphone 03632604X2 and the payphone could only be removed in accordance with that section.

B18. As noted above, the ACMA has found that Telstra’s final decision on 12 April 2012 to remove Payphone 03632604X2 was made in contravention of subsection 16(1) of the Payphone Consultation Determination. Accordingly, Telstra’s decision to remove Payphone 03632604X2 was not made in accordance with the rules in relation to the process for public consultation on the removal of a payphone set out in the Payphone Consultation Determination as required by paragraph 20(1)(a) of the Payphone Location Determination.

B19. The ACMA finds that by removing Payphone 03632604X2 on 20 July 2012, Telstra breached subsection 20(1) of the Payphone Location Determination by failing to satisfy paragraph 20(1)(a).

B20. The ACMA has not reached any concluded view about whether or not there were any additional breaches of subsection 20(1) by reason of any failure to satisfy paragraph 20(1)(b) in relation to Payphone 03632604X2. The ACMA intends to continue to closely monitor Telstra’s compliance with paragraph 20(1)(b) in relation to any future payphone removals.

B21. As Telstra has contravened subsection 20(1) of the Payphone Location Determination on 20 July 2012, the ACMA finds that it breached subsection 12EF(2) of

29 See item 3(c) on pages 2-5 of the First Response in relation to Payphone 03632604X2.30 See item 3 on pages 2-5 of the First Response.


the TCPSS Act and therefore also breached section 68 of the Telecommunications Act on that date.


Attachment C

Findings in relation to Payphone 08839800X2 - payphone on corner of Alexander Road and Skipper Street, Mount Barker


C1. In the Preliminary Investigation Report, the ACMA made preliminary findings to the following effect in relation to Payphone 08839800X2:

(a) that Telstra breached subsection 9(1) of the Payphone Consultation Determination on the basis that Telstra did not display a notice on Payphone 08839800X2 at least 42 days before the date on which it intended to make a decision about the removal of the payphone as required by paragraph 9(2)(a) and subsection 10(4)31;

(b) that Telstra breached subsection 17(1) of the Payphone Consultation Determination in relation to Payphone 08839800X2 on the basis that certain notifications did not include sufficient details of how a person who disagrees with Telstra’s final decision may notify the ACMA through the relevant ACMA contact person32; and


C2. After having regard to Telstra’s comments in the Second Response, the ACMA has not proceeded to make any of the above findings in relation to Payphone 08839800X2in this report.



C3. The letter from ''''''''' ''''''''''''' of Telstra to the District Council of Mount Barker dated 3 February 2012 with respect to Payphone 08839800X2 did not, as required by subsection 11(1) and paragraph 10(3)(e) of the Payphone Consultation Determination include details of the website address for downloading a copy of the PCD. Telstra therefore failed, in accordance with section 11, to provide written notification of the proposal to the relevant local government body as required by subparagraph 9(2)(b)(i).



C4. The ACMA Notice required Telstra to provide, in relation to specified payphones removed in the period from 1 January 2012 to 4 September 2013 (of which Payphone 08839800X2 was such a payphone):



C5. Telstra, with respect to this aspect of the ACMA Notice, confirmed:



C6. The exception from the requirement to prepare a PCD in subsection 9(3) of the Payphone Consultation Determination does not apply in respect of Telstra’s proposal to remove Payphone 08839800X2.36

C7. In light of Telstra’s response to the ACMA Notice, the ACMA is of the view that Telstra failed:



C8. The ACMA finds that in respect of the proposal to remove Payphone 08839800X2 Telstra did not comply with subsection 9(1) of the Payphone Consultation Determination as it failed to:


34 See item 5(d) on page 11 of the First Response.35 See item 5(e) on page 11 of the First Response.36 The First Response confirms that Payphone 08839800X2 fell into a class of payphones which was

removed from a site between 1 January 2012 and 4 September 2012 (inclusive), where, after the payphone was removed, no payphone remained at the site. See item 3 on pages 2-5 of the First Response.





C9. In addition, the ACMA finds that Telstra has breached subsection 16(1) of the Payphone Consultation Determination by making a final decision on 28 March 2012 when it had not complied with all of the relevant notification requirements in Division 2 of Part 2 of the Payphone Consultation Determination.

C10. The letter from '''''''''' ''''''''''''' of Telstra to the District Council of Mount Barker dated 28 March 2012 advised that Telstra’s final decision in relation to Payphone 08839800X2 was to remove the payphone. Further information provided in the First Response confirms that this final decision was made on 28 March 2012.37

C11. As Telstra contravened subsection 9(1) of the Payphone Consultation Determination in respect of its proposal to remove Payphone 08839800X2, by making the final decision to remove the payphone from the site on 28 March 2012, Telstra contravened subsection 16(1) of the Payphone Consultation Determination.

C12. As Telstra has contravened section 16 of the Payphone Consultation Determination on 28 March 2012, the ACMA finds that it has breached subsection 12EG(3) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act on that date.


C13. Subsection 20(1) of the Payphone Location Determination provides that if a PUSP must ensure that at least one payphone is located at a site in order to comply with section 6 of the Determination (an eligible site), a payphone may only be removed from that site if:





C14. Payphone 08839800X2 was removed on 14 May 2012.38 Prior to its removal, Payphone 08839800X2 was located at an eligible site.39 It follows that section 20 of the Payphone Location Determination applied in relation to Payphone 08839800X2 and the payphone could only be removed in accordance with that section.

C15. As noted above, the ACMA has found that Telstra’s final decision on 28 March 2012 to remove Payphone 08839800X2 was made in contravention of subsection 16(1) of the Payphone Consultation Determination. Accordingly, Telstra’s decision to remove Payphone 08839800X2 was not made in accordance with the rules in relation to the process for public consultation on the removal of a payphone set out in the Payphone Consultation Determination as required by paragraph 20(1)(a) of the Payphone Location Determination.

C16. The ACMA finds that by removing Payphone 08839800X2 on 14 May 2012, Telstra breached subsection 20(1) of the Payphone Location Determination by failing to satisfy paragraph 20(1)(a).

C17. The ACMA has not reached any concluded view about whether or not there were any additional breaches of subsection 20(1) by reason of any failure to satisfy paragraph 20(1)(b) in relation to Payphone 08839800X2. The ACMA intends to continue to closely monitor Telstra’s compliance with paragraph 20(1)(b) in relation to any future payphone removals.

C18. As Telstra has contravened subsection 20(1) of the Payphone Location Determination on 14 May 2012, the ACMA finds that it breached subsection 12EF(2) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act on that date.



Attachment D

Findings in relation to Payphone 02428535X2 - payphone on the corner of Ball St and Princes Highway, Woonona


D1. In the Preliminary Investigation Report, the ACMA made preliminary findings to the following effect in relation to Payphone 02428535X2:

(a) that Telstra breached subsection 9(1) of the Payphone Consultation Determination on the basis that Telstra did not display a notice on Payphone 02428535X2 for at least 42 days before the date on which it intended to make a decision about the removal of the payphone as required by paragraph 9(2)(a) and subsection 10(4)40; and

(b) that Telstra breached subsection 17(1) of the Payphone Consultation Determination in relation to Payphone 02428535X2 on the basis that certain notifications did not include sufficient details of how a person who disagrees with Telstra’s final decision may notify the ACMA through the relevant ACMA contact person41.

D2. After having regard to Telstra’s comments in the Second Response, the ACMA has not proceeded to make any of the above findings in relation to Payphone 02428535X2 in this report.



D3. The letter from '''''''''''''' '''''''''''' of Telstra to Wollongong City Council dated 5 June 2012 with respect to Payphone 02428535X2 did not, as required by subsection 11(1) and paragraph 10(3)(e) of the Payphone Consultation Determination, include details of the website address for downloading a copy of the PCD.42 Telstra therefore failed to, in accordance with section 11, provide written notification of the proposal to the relevant local government body as required by subparagraph 9(2)(b)(i).

D4. Attached to the email dated 11 July 2012 from '''''''''''' ''''''''''' to '''''''''''' '''''''''''''' of Telstra was the proof copy of an advertisement (the advertisement) in relation to the removal of Payphone 02428535X2.43 That email indicated that the attached advertisement had been booked for 14 July 2012. It did not contain details of the name of the newspaper in

40 Paragraphs 38 and 52 of the Preliminary Investigation Report; page 21 of the Second Response. 41 Paragraphs 62-63 of the Preliminary Investigation Report; page 22 of the Second Response.42 Item 5(b) on pages 21-22 of the First Response.43 Ibid.


which it would be published, although the advertisement appears to have ultimately been published in the Mercury on 14 July 2012.44

D5. The advertisement did not include details of the website address for downloading a copy of the PCD as required by subsection 12(1) and paragraph 10(3)(e) of the Payphone Consultation Determination. Telstra therefore failed to provide written notification of the proposal to the relevant local newspaper as required by subsection 12(1) of the Payphone Consultation Determination.

D6. The advertisement was, contrary to subsection 12(2) of the Payphone Consultation Determination, published on 14 July 201245, 32 days prior to the date of Telstra’s intended removal decision on 15 August 2012. Telstra therefore failed to provide written notification of the proposal to the relevant local newspaper 42 days prior to the date specified in the advertisement as the intended decision date (that is, 15 August 2012) as required by subsection 12(2) of the Payphone Consultation Determination.

D7. The ACMA Notice required Telstra to provide, in relation to specified payphones removed in the period from 5 September 2012 to 31 March 2013 (of which Payphone 02428535X2 was one):



D8. Telstra, with respect to this aspect of the ACMA Notice, confirmed:



D9. The exception from the requirement to prepare a PCD in subsection 9(3) of the Payphone Consultation Determination does not apply in respect of Telstra’s proposal to remove Payphone 02428535X2.48

44 Item 5(c) on page 22 of the First Response. The Second Response (page 21) provides that the advertisement was published in the Illawarra Mercury newspaper (as opposed to the Wollongong Mercury) but does not dispute the fact that the advertisement was published on 14 July 2012. 45 Ibid.46 See item 5(d) on page 22 of the First Response.47 See item 5(e) on pages 22-23 of the First Response.48 The First Response confirms that Payphone 02428535X2 fell into a class of payphones which was

removed from a site between 5 September 2012 and 31 March 2013 (inclusive), where, after the payphone was removed, no payphone remained at the site. See item 3 on pages 15-16 of the First Response.


D10. In light of Telstra’s response to the ACMA Notice, the ACMA is of the view that Telstra failed:



D11. The ACMA finds that in respect of the proposal to remove Payphone 02428535X2 Telstra did not comply with subsection 9(1) of the Payphone Consultation Determination as it failed to:


(b) publish a notification of the payphone removal proposal in a local newspaper in accordance with section 12 of the Payphone Consultation Determination, as required by subparagraph 9(2)(c)(i) of that determination;

(c) publish a notification on its website in accordance with section 12 of the Payphone Consultation Determination, as required by subparagraph 9(2)(c)(ii) of that determination; and

(d) prepare and publish a PCD in accordance with section 13 of the Payphone Consultation Determination, as required by paragraph 9(2)(d) of that determination.


D12. In addition, the ACMA finds that Telstra has breached subsection 16(1) of the Payphone Consultation Determination by making a final decision on 17 August 2012 when it had not complied with all of the relevant notification requirements in Division 2 of Part 2 of the Payphone Consultation Determination.

D13. In the letter from '''''''''''''' ''''''''''''' of Telstra to Wollongong City Council dated 17 August 2012, Telstra stated that its decision in relation to Payphone 02428535X2 “did not differ from the original payphone removal proposal”. In the ACMA’s view, this was notice to Wollongong City Council of a final decision to remove Payphone 02428535X2. Further information provided in the First Response confirms that this final decision was made on 17 August 2012.49

D14. As Telstra contravened subsection 9(1) of the Payphone Consultation Determination in respect of its proposal to remove Payphone 02428535X2, by making the final decision to remove the payphone from the site on 17 August 2012, Telstra contravened subsection 16(1) of the Payphone Consultation Determination.

49 See item 3(b) on pages 15-16 of the First Response in relation to Payphone 02428535X2.


D15. As Telstra has contravened section 16 of the Payphone Consultation Determination on 17 August 2012, the ACMA finds that it has breached subsection 12EG(3) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act as at the same date.


D16. Subsection 20(1) of the Payphone Location Determination provides that if a PUSP must ensure that at least one payphone is located at a site in order to comply with section 6 of the Determination (an eligible site), a payphone may only be removed from that site if:



D17. Payphone 02428535X2 was removed on 16 November 2012.50 Prior to its removal, Payphone 02428535X2 was located at an eligible site.51 It follows that section 20 of the Payphone Location Determination applied in relation to Payphone 02428535X2 and the payphone could only be removed in accordance with that section.

D18. As noted above, the ACMA has found that Telstra’s final decision on 17 August 2012 to remove Payphone 02428535X2 was made in contravention of subsection 16(1) of the Payphone Consultation Determination. Accordingly, Telstra’s decision to remove Payphone 02428535X2 was not made in accordance with the rules in relation to the process for public consultation on the removal of a payphone set out in the Payphone Consultation Determination as required by paragraph 20(1)(a) of the Payphone Location Determination.

D19. The ACMA finds that by removing Payphone 02428535X2 on 16 November 2012, Telstra breached subsection 20(1) of the Payphone Location Determination by failing to satisfy paragraph 20(1)(a).

D20. The ACMA has not reached any concluded view about whether or not there were any additional breaches of subsection 20(1) by reason of any failure to satisfy paragraph 20(1)(b) in relation to Payphone 02428535X2. The ACMA intends to continue to closely monitor Telstra’s compliance with paragraph 20(1)(b) in relation to any future payphone removals.

D21. As Telstra has contravened subsection 20(1) of the Payphone Location Determination on 16 November 2012, the ACMA finds that it breached subsection 12EF(2) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act on the same date.



Attachment E

Findings in relation to Payphone 07549119X2 - payphone at 89 Bulcock Street, Caloundra


E1. In the Preliminary Investigation Report, the ACMA made preliminary findings to the following effect in relation to Payphone 07549119X2:

(a) that Telstra breached subsection 9(1) of the Payphone Consultation Determination on the basis that Telstra did not display a notice on Payphone 07549119X2 for at least 42 days before the date on which it intended to make a decision about the removal of the payphone as required by paragraph 9(2)(a) and subsection 10(4)52; and

(b) that Telstra breached subsection 17(1) of the Payphone Consultation Determination in relation to Payphone 07549119X2 on the basis that certain notifications did not include sufficient details of how a person who disagrees with Telstra’s final decision may notify the ACMA through the relevant ACMA contact person and on the basis that Telstra did not provide written notification of the final decision which contained the information required by subsection 17(2)53.

E2. After having regard to Telstra’s comments in the Second Response, the ACMA has not proceeded to make any of the above findings in relation to Payphone 07549119X2 in this report.



E3. Attached to the email dated 19 July 2012 from ''''''' ''''''''''''''''''''' to ''''''''' '''''''''''''''''''''' of Telstra was a proof copy of an advertisement (the advertisement) for the Caloundra Weekly in relation to the proposal to remove Payphone 07549119X2. The First Response confirms that the advertisement was published in the Caloundra Weekly on 26 July 2012.54

E4. The advertisement stated that Telstra intended to make a final decision in relation to the removal proposal by 30 August 2012. This amounted to 35 days notice of Telstra’s intended decision date. Telstra therefore did not meet the requirements of subsection 12(2) in relation to the publication of the advertisement. In order to have met the requirements of subsection 12(2), the advertisement must have been published at least

52 Paragraphs 38 and 52 of the Preliminary Investigation Report; page 28 of the Second Response. 53 Paragraphs 61-63 of the Preliminary Investigation Report; page 29 of the Second Response.54 See item 5(c) on page 22 of the First Response in relation to Payphone 07549119X2.


42 days prior to the intended decision date specified in the advertisement (that is, 30 August 2012). These facts in relation to the advertisement meant that Telstra had failed to, in accordance with section 12, publish a notification of the payphone removal proposal in a local newspaper as required by subparagraph 9(2)(c)(i).

E5. The ACMA Notice required Telstra to provide, in relation to specified payphones removed in the period from 5 September 2012 to 31 March 2013 (of which Payphone 07549119X2 was one):



E6. Telstra, with respect to this aspect of the ACMA Notice, confirmed:



E7. The exception from the requirement to prepare a PCD in subsection 9(3) of the Payphone Consultation Determination does not apply in respect of Telstra’s proposal to remove payphone 07549119X2.57

E8. In light of Telstra’s response to the ACMA Notice, the ACMA is of the view that Telstra failed:



E9. The ACMA finds that, in respect of the proposal to remove Payphone 07549119X2, Telstra did not comply with subsection 9(1) of the Payphone Consultation Determination as it failed to:

55 See item 5(d) on page 22 of the First Response.56 See item 5(e) on pages 22-23 of the First Response.57 The First Response confirms that Payphone 07459119X2 fell into a class of payphones which was



(a) publish a notification of the payphone removal proposal in a local newspaper in accordance with section 12 of the Payphone Consultation Determination, as required by subparagraph 9(2)(c)(i) of that determination;




E10. In addition, the ACMA finds that Telstra has breached subsection 16(1) of the Payphone Consultation Determination by making a final decision on 3 September 2012 when it had not complied with all of the relevant notification requirements in Division 2 of Part 2 of the Payphone Consultation Determination.

E11. The letter from '''''''''' ''''''''''''''''''' of Telstra to ''''''''''''''''''''' '''''''''''' '''''''''''' dated 3 September 2012 advised that in relation to Payphone 07549119X2 a final decision had been made by Telstra to remove the payphone. Further information provided in the First Response confirms that this final decision was made on 3 September 2012.58

E12. As Telstra contravened subsection 9(1) of the Payphone Consultation Determination in respect of its proposal to remove Payphone 07549119X2, by making the final decision to remove the payphone from the site on 3 September 2012, Telstra contravened subsection 16(1) of the Payphone Consultation Determination.

E13. As Telstra has contravened section 16 of the Payphone Consultation Determination on 3 September 2012, Telstra contravened subsection 12EG(3) of the TCPSS Act and therefore breached section 68 of the Telecommunications Act as at the same date.


E14. Subsection 20(1) of the Payphone Location Determination provides that if a PUSP must ensure that at least one payphone is located at a site in order to comply with section 6 of the Determination (an eligible site), a payphone may only be removed from that site if:





E15. Payphone 07549119X2 was removed on 29 October 2012.59 Prior to its removal, Payphone 07549119X2 was located at an eligible site.60 It follows that section 20 of the Payphone Location Determination applied in relation to Payphone 07549119X2 and the payphone could only be removed in accordance with that section.

E16. As noted above, the ACMA has found that Telstra’s final decision on 3 September 2012 to remove Payphone 07549119X2 was made in contravention of subsection 16(1) of the Payphone Consultation Determination. Accordingly, Telstra’s decision to remove Payphone 07549119X2 was not made in accordance with the rules in relation to the process for public consultation on the removal of a payphone set out in the Payphone Consultation Determination as required by paragraph 20(1)(a) of the Payphone Location Determination.

E17. The ACMA finds that by removing Payphone 07549119X2 on 29 October 2012, Telstra breached subsection 20(1) of the Payphone Location Determination by failing to satisfy paragraph 20(1)(a).

E18. The ACMA has not reached any concluded view about whether or not there were any additional breaches of subsection 20(1) by reason of any failure to satisfy paragraph 20(1)(b) in relation to Payphone 07549119X2. The ACMA intends to continue to closely monitor Telstra’s compliance with paragraph 20(1)(b) in relation to any future payphone removals.

E19. As Telstra has contravened subsection 20(1) of the Payphone Location Determination on 29 October 2012, the ACMA finds that it breached subsection 12EF(2) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act on the same date.

59 See item 3(c) on page 17 of the First Response in relation to Payphone 07549119X2.60 See item 3 on pages 15-18 of the First Response.


Attachment F

Findings in relation to Payphone 08835220X2 - payphone at 194 Grange Road, Flinders Park


F1. In the Preliminary Investigation Report, the ACMA made preliminary findings to the following effect in relation to Payphone 08835220X2:

(a) that Telstra breached subsection 9(1) of the Payphone Consultation Determination on the basis that Telstra did not display a notice on or near Payphone 08835220X2 for at least 42 days before the date on which it intended to make a decision about the removal of the payphone as required by paragraph 9(2)(a) and subsection 10(4)61;

(b) that Telstra breached subsection 17(1) of the Payphone Consultation Determination in relation to Payphone 08835220X2 on the basis that certain notifications did not include sufficient details of how a person who disagrees with Telstra’s final decision may notify the ACMA through the relevant ACMA contact person62; and


F2. After having regard to Telstra’s comments in the Second Response, the ACMA has not proceeded to make any of the above findings in relation to Payphone 08835220X2 in this report.



F3. The letter from ''''''''' ''''''''''''''' of Telstra to the City of Charles Sturt Council dated 10 May 2012 did not include details of the website address for downloading a copy of the PCD as required by subsection 11(1) and paragraph 10(3)(e) of the Payphone Consultation Determination. Telstra therefore failed, in accordance with section 11, to provide written notification of the proposal to the relevant local government body as required by subparagraph 9(2)(b)(i).



F4. Attached to the email dated 11 May 2012 from ''''''''''''''''''' '''''''''' '''''''''''' to ''''''''' '''''''''''''''''''''' of Telstra was a proof copy of an advertisement in relation to the removal of Payphone 08835220X2 (the advertisement). That email indicated that the advertisement had been booked to be published on 16 May 2012 in the Weekly Times. Information provided at item 5(c) on page 22 of the First Response and on page 31 of the Second Response confirms that the advertisement was published in the Weekly Times on 16 May 2012.

F5. The advertisement was, contrary to subsection 12(2) of the Payphone Consultation Determination, published 36 days prior to the date of Telstra’s intended removal decision of 21 June 2012 specified in the advertisement. Telstra therefore failed to provide written notification of the proposal to the relevant local newspaper at least 42 days prior to the intended date of removal as required by subsection 12(2) of the Payphone Consultation Determination.

F6. The ACMA Notice required Telstra to provide, in relation to specified payphones removed in the period from 5 September 2012 to 31 March 2013 (of which Payphone 08835220X2 was such a payphone):

(a) the notification of payphone removal proposal published on Telstra’s website as required by subparagraph 9(2)(c)(ii) of the Payphone Consultation Determination along with certain other information; and

(b) the PCD prepared as required by paragraph 9(2)(d) of the Payphone Consultation Determination along with certain other information.

F7. Telstra, with respect to this aspect of the ACMA Notice, confirmed:



F8. The exception from the requirement to prepare a PCD in subsection 9(3) of the Payphone Consultation Determination does not apply in respect of Telstra’s proposal to remove Payphone 08835220X2.66

F9. In light of Telstra’s response to the ACMA Notice, the ACMA is of the view that Telstra failed:

64 See item 5(d) on page 22 of the First Response.65 See item 5(e) on pages 22-23 of the First Response.66 The First Response confirms that Payphone 08835220X2 fell into a class of payphones which was





F10. The ACMA finds that in respect of the proposal to remove Payphone 08835220X2 Telstra did not comply with subsection 9(1) of the Payphone Consultation Determination as it failed to:






F11. In addition, the ACMA finds that Telstra has breached subsection 16(1) of the Payphone Consultation Determination by making a final decision on 21 June 2012 when it had not complied with all of the relevant notification requirements in Division 2 of Part 2 of the Payphone Consultation Determination.

F12. The letter from '''''''''' ''''''''''''''' of Telstra to the City of Charles Sturt Council dated 21 June 2012 in relation to Payphone 08835220X2 advised the City of Charles Sturt Council of a final decision by Telstra to remove Payphone 08835220X2. Further information provided in the First Response confirms that this final decision was made on 21 June 2012.67

F13. As Telstra contravened subsection 9(1) of the Payphone Consultation Determination in respect of its proposal to remove Payphone 08835220X2, by making the final decision to remove the payphone from the site on 21 June 2012, Telstra contravened subsection 16(1) of the Payphone Consultation Determination.



F14. As Telstra has contravened section 16 of the Payphone Consultation Determination on 21 June 2012, the ACMA finds that it has breached subsection 12EG(3) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act on the same date.


F15. Subsection 20(1) of the Payphone Location Determination provides that if a PUSP must ensure that at least one payphone is located at a site in order to comply with section 6 of the Determination (an eligible site), a payphone may only be removed from that site if:

(a) the removal decision has been made in accordance with the rules in relation to the process for public consultation on the removal of a payphone set out in the Payphone Consultation Determination (paragraph 20(1)(a));and


F16. Payphone 08835220X2 was removed on 19 September 2012.68 Prior to its removal, Payphone 08835220X2 was located at an eligible site.69 It follows that section 20 of the Payphone Location Determination applied in relation to Payphone 08835220X2 and the payphone could only be removed in accordance with that section.

F17. As noted above, the ACMA has found that Telstra’s final decision on 21 June 2012 to remove Payphone 08835220X2 was made in contravention of subsection 16(1) of the Payphone Consultation Determination. Accordingly, Telstra’s decision to remove Payphone 08835220X2 was not made in accordance with the rules in relation to the process for public consultation on the removal of a payphone set out in the Payphone Consultation Determination as required by paragraph 20(1)(a) of the Payphone Location Determination.

F18. The ACMA finds that by removing Payphone 08835220X2 on 19 September 2012, Telstra breached subsection 20(1) of the Payphone Location Determination by failing to satisfy paragraph 20(1)(a).

F19. The ACMA has not reached any concluded view about whether or not there were any additional breaches of subsection 20(1) by reason of any failure to satisfy paragraph 20(1)(b) in relation to Payphone 08835220X2. The ACMA intends to continue to closely monitor Telstra’s compliance with paragraph 20(1)(b) in relation to any future payphone removals.

F20. As Telstra has contravened subsection 20(1) of the Payphone Location Determination on 19 September 2012, the ACMA finds that it breached subsection



12EF(2) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act on the same date.


Attachment G

Findings in relation to Payphone 03934772X2 - payphone at 146 Victoria Street, Carlton relocated to 493 Swanston Street, Melbourne


G1. In the Preliminary Investigation Report, the ACMA made preliminary findings to the following effect in relation to Payphone 03934772X2:

(a) that Telstra breached subsection 7(1) of the Payphone Consultation Determination in relation to Payphone 03934772X2 on the basis that the letter dated 8 March 2012 from Telstra to Melbourne City Council did not set out the reasons for the final decision regarding the payphone location proposal70;

(b) that Telstra breached subsection 9(1) of the Payphone Consultation Determination in relation to Payphone 03934772X2 on the basis that the letter dated 30 January 2012 from Telstra to Melbourne City Council did not include details of the location of a payphone that is nearest to the payphone that is proposed to be removed71;

(c) that Telstra breached subsection 17(1) of the Payphone Consultation Determination in relation to Payphone 03934772X2 on the basis that certain notifications did not include sufficient details of how a person who disagrees with Telstra’s final decision may notify the ACMA through the relevant ACMA contact person72; and

(d) that Telstra breached section 19 of the Payphone Location Determination in relation to Payphone 03934772X2 on the basis that it installed a payphone at a new payphone site without having complied with the rules in relation to the process for public consultation set out in the Payphone Consultation Determination73.

G2. After having regard to Telstra’s comments in the Second Response, the ACMA has not proceeded to make any of the above findings in relation to Payphone 03934772X2 in this report.


Sections 5 and 9 – notification requirements

G3. The letter from ''''''''''''''' '''''''''''''''' of Telstra to Melbourne City Council dated 30 January 2012 (the 30 January 2012 letter) on the proposed relocation of Payphone 03934772X2

70 Paragraph 26 of the Preliminary Investigation Report; page 12 of the Second Response.71 Paragraphs 42 and 52 of the Preliminary Investigation Report; page 13 of the Second Response.72 Paragraphs 62-63 of the Preliminary Investigation Report; page 14 of the Second Response.73 Paragraph 65 of the Preliminary Investigation Report; page 15 of the Second Response.


from 146 Victoria Street, Carlton, to 493 Swanston Street, Melbourne, did not, as required by paragraph 5(3)(c) of the Payphone Consultation Determination, include the type of payphone proposed to be installed at the new site. Telstra therefore failed to provide written notification of the proposal to the relevant local government body as required by paragraph 5(2)(a).

G4. The ACMA notes the comments made by Telstra in the Second Response that “where the notice refers to a relocation of an existing payphone, it is implicit in the notice that there is no change to the type of payphone”.74 However, in the ACMA’s view, the requirements of paragraph 5(3)(c) of the Payphone Consultation Determination make clear that the relevant notification must include “the type of payphone the [PUSP] proposes to install”. In the view of the ACMA, it is not enough to meet this requirement to refer to the relocation of an existing payphone unless the “type” of the existing payphone is described. The 30 January 2012 letter does not refer to the type of payphone proposed to be installed at 493 Swanston Street, Carlton, other than to describe it as “a Telstra payphone” and therefore did not meet the requirements of paragraph 5(3)(c).

G5. Further, the 30 January 2012 letter did not, as required by subsection 11(1) and paragraph 10(3)(e) of the Payphone Consultation Determination, include details of the website address for downloading a copy of the PCD. Telstra therefore failed, in accordance with section 11, to provide written notification of the proposal to the relevant local government body as required by paragraph 9(2)(b)(i).

G6. The notification of the proposed relocation of Payphone 03934772X2 published in the Classifieds section of the Melbourne Leader newspaper (the advertisement) did not, as required by paragraph 5(6)(a) and paragraph 5(3)(c) of the Payphone Consultation Determination, include the type of payphone proposed to be installed at the new site. Telstra therefore failed to provide written notification of the proposal to the relevant local newspaper as required by paragraph 5(5)(a).

G7. The ACMA notes Telstra’s comments in the Second Response in relation to the advertisement that “As the notice referred to the relocation of an existing payphone, it was implicit in the notice that there was no change to the type of payphone”.75 However, as explained in paragraph G4 above, the notice must include the “type” of payphone. The advertisement did not refer to the “type” of payphone to be installed at 493 Swanston Street, Carlton and therefore did not meet the requirements of paragraph 5(3)(c) of the Payphone Consultation Determination.

G8. Further, the advertisement did not include details of the location of a payphone that is the nearest payphone to the payphone which is proposed to be removed (i.e. the nearest payphone to the payphone at 146 Victoria Street, Carlton) as required by

74 Page 12 of the Second Response in relation to Payphone 03934772X2.75 Ibid.


subsection 12(1) and paragraph 10(3)(b) of the Payphone Consultation Determination. Telstra therefore failed to provide written notification of the proposal to the relevant local newspaper as required by subsection 12(1) of the Payphone Consultation Determination.

G9. The copy of the advertisement did not include the date of publication, although it appears to have been published in the Melbourne Leader on 30 January 2012.76 The advertisement was, contrary to paragraph 5(5)(a) of the Payphone Consultation Determination, published 35 days prior to the date of Telstra’s intended final decision date specified in the advertisement of 5 March 2012. Telstra therefore failed to provide written notification of the proposal to the relevant local newspaper 42 days prior to the date specified for the purposes of paragraph 5(3)(d) as required by paragraph 5(5)(a) of the Payphone Consultation Determination.

G10. The ACMA Notice required Telstra to provide, in relation to specified payphones removed in the period from 1 January 2012 to 4 September 2012 (of which Payphone 03934772X2 was one):



G11. Telstra, with respect to this aspect of the ACMA Notice, confirmed:



G12. The exception from the requirement to prepare a PCD in subsection 9(3) of the Payphone Consultation Determination does not apply in respect of Telstra’s proposal to remove Payphone 03934772X2.79

G13. In light of Telstra’s response to the ACMA Notice, the ACMA is of the view that Telstra failed:

76 Item 5(c) on pages 10-11 of the First Response77 See item 5(d) on page 11 of the First Response.78 See item 5(e) on page 11 of the First Response.79 The First Response confirms that Payphone 03934772X2 fell into a class of payphones which was

removed from a site between 1 January 2012 to 4 September 2012 (inclusive), where, after the payphone was removed, no payphone remained at the site. See item 3 on pages 2-6 of the First Response.




G14. The ACMA finds that in respect of the proposal to install Payphone 03934772X2 at the new site at 493 Swanston Street, Carlton, Telstra did not comply with subsection 5(1) of the Payphone Consultation Determination as it failed to:

(a) provide written notification of the payphone installation proposal in accordance with subsection 5(3) of the Payphone Consultation Determination, as required by subsection 5(2) of that determination; and

(b) publish a notification of a payphone installation proposal in a local newspaper in accordance with subsection 5(3) of the Payphone Consultation Determination as required by paragraph 5(6)(a) of that determination.

G15. The ACMA finds that in respect of the proposal to remove Payphone 03934772X2 from 146 Victoria Street, Carlton, Telstra did not comply with subsection 9(1) of the Payphone Consultation Determination as it failed to:





Sections 6 and 16 – final decision

G16. The letter from ''''''''''''''' '''''''''''''''' of Telstra to Melbourne City Council dated 8 March 2012 notified the council of Telstra’s final decision to proceed with the relocation of Payphone 03934772X2. Further information provided in the First Response confirms that the final decision to remove Payphone 03934772X2 was made on 8 March 2012.80 The

80 Item 3(b) on page 5 of the First Response.


ACMA considers that this evidence indicates that the final decision to install Payphone 03934772X2 at 493 Swanston Street, Carlton was also made on 8 March 2012.

G17. The ACMA finds that Telstra breached subsection 6(1) of the Payphone Consultation Determination by making a final decision on 8 March 2012 to install the payphone at the new site when it had not complied with the notification requirements in section 5 of the Payphone Consultation Determination.

G18. Further, the ACMA finds that Telstra breached subsection 16(1) of the Payphone Consultation Determination by making a final decision on 8 March 2012 to remove Payphone 03934772X2 when it had not complied with the notification requirements in Division 2 of Part 2 of the Payphone Consultation Determination.

G19. In addition, the ACMA finds that Telstra failed to comply with:

(a) subsection 6(2) of the Payphone Consultation Determination by making a final decision on the installation of Payphone 03934772X2 earlier than the date specified in its notification; and

(b) subsection 16(2) of the Payphone Consultation Determination by making a final decision on the removal of Payphone 03934772X2 earlier than the date specified in its notification.

G20. In the 30 January 2012 letter Telstra stated that it intended to make a final decision on the relocation of Payphone 03934772X2 by 21 March 2012. A decision to relocate Payphone 03934772X2 was comprised of a decision to remove the payphone from its existing location and a decision to install it at the intended new location. By making the final decision to relocate Payphone 03934772X2 earlier than 21 March 2012 (on 8 March 2012), Telstra breached subsections 6(2) and 16(2) of the Payphone Consultation Determination.

G21. As Telstra has contravened sections 6 and 16 of the Payphone Consultation Determination on 8 March 2012, the ACMA finds that it has breached subsection 12EG(3) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act on that date.


G22. Subsection 20(1) of the Payphone Location Determination provides that if a PUSP must ensure that at least one payphone is located at a site in order to comply with section 6 of the Determination (an eligible site), a payphone may only be removed from that site if:




G23. Payphone 03934772X2 was removed on 31 May 2012.81 Prior to its removal, Payphone 03934772X2 was located at an eligible site.82 It follows that section 20 of the Payphone Location Determination applied in relation to the removal of Payphone 03934772X2 and the payphone could only be removed in accordance with that section.

G24. As noted above, the ACMA has found that Telstra’s final decision on 8 March 2012 to remove Payphone 03934772X2 was made in contravention of subsection 16(1) of the Payphone Consultation Determination. Accordingly, Telstra’s decision to remove Payphone 03934772X2 was not made in accordance with the rules in relation to the process for public consultation on the removal of a payphone set out in the Payphone Consultation Determination as required by paragraph 20(1)(a) of the Payphone Location Determination.

G25. The ACMA finds that by removing Payphone 03934772X2 on 31 May 2012, Telstra breached subsection 20(1) of the Payphone Location Determination by failing to satisfy paragraph 20(1)(a).

G26. The ACMA has not reached any concluded view about whether or not there were any additional breaches of subsection 20(1) by reason of any failure to satisfy paragraph 20(1)(b) in relation to Payphone 03934772X2. The ACMA intends to continue to closely monitor Telstra’s compliance with paragraph 20(1)(b) in relation to any future payphone removals.

G27. As Telstra has contravened subsection 20(1) of the Payphone Location Determination on 31 May 2012, the ACMA finds that it breached subsection 12EF(2) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act on the same date.



Attachment H

Findings in relation to Payphone 07329707X2 - payphone at 145 Teviot Road, Greenbank relocated to 26 Pub Lane, Greenbank


H1. In the Preliminary Investigation Report, the ACMA made preliminary findings to the following effect in relation to Payphone 07329707X2:

(a) that Telstra breached subsection 9(1) of the Payphone Consultation Determination on the basis that Telstra did not display a notice on Payphone 07329707X2 for at least 42 days before the date on which it intended to make a decision about the removal of the payphone as required by paragraph 9(2)(a) and subsection 10(4)83;

(b) that Telstra breached subsection 17(1) of the Payphone Consultation Determination in relation to Payphone 07329707X2 on the basis that certain notifications did not include sufficient details of how a person who disagrees with Telstra’s final decision may notify the ACMA through the relevant ACMA contact person84;

(c) that Telstra breached section 19 of the Payphone Location Determination in relation to Payphone 07329707X2 on the basis that it installed a payphone at a new payphone site without having complied with the rules in relation to the process for public consultation set out in the Payphone Consultation Determination85; and

(d) that Telstra breached section 20 of the Payphone Location Determination in relation to Payphone 07329707X2 on the basis that it did not have regard to the call usage patterns in relation to the payphones as required by paragraph 20(2)(b) of that determination.86

H2. After having regard to Telstra’s comments in the Second Response, the ACMA has not proceeded to make any of the above findings in relation to Payphone 07329707X2in this report.


Sections 5 and 9 – notification requirements

H3. The letter from ''''''''''' ''''''''''''''''''''''' of Telstra to Logan City Council dated 10 July 2012 (the 10 July 2012 letter) on the proposed removal of Payphone 07329707X2 from 145

83 Paragraphs 38 and 52 of the Preliminary Investigation Report; page 24 of the Second Response. 84 Paragraphs 62-63 of the Preliminary Investigation Report; page 26 of the Second Response.85 Paragraph 65 of the Preliminary Investigation Report; page 26 of the Second Response.86 Paragraphs 69-70 of the Preliminary Investigation Report; page 27 of the Second Response.


Teviot Road, Greenbank and installation of a new payphone at 26 Pub Lane, Greenbank, did not, as required by paragraph 5(3)(c) of the Payphone Consultation Determination, include the type of payphone proposed to be installed at the new site. Telstra therefore failed to provide written notification of the proposal to the relevant local government body as required by paragraph 5(2)(a).

H4. The ACMA notes the comments made by Telstra in the Second Response that “where the notice refers to a relocation of an existing payphone, it is implicit in the notice that there is no change to the type of payphone”.87 However, in the ACMA’s view, the requirements of paragraph 5(3)(c) of the Payphone Consultation Determination make clear that the relevant notification must include “the type of payphone the [PUSP] proposes to install”. In the view of the ACMA, it is not enough to meet this requirement to refer to the relocation of an existing payphone unless the “type” of the existing payphone is described. The 10 July 2012 letter does not refer to the type of payphone proposed to be installed at 26 Pub Lane, Greenbank, other than to describe it as “a new service” and therefore did not meet the requirements of paragraph 5(3)(c).

H5. The 10 July 2012 letter stated that Telstra intended to make a final decision on the proposal by 20 August 2012. The letter was, contrary to subsection 5(4) of the Payphone Consultation Determination, sent 41 days prior to the date of Telstra’s intended final decision as specified in the letter of 20 August 2012. Telstra therefore failed to provide written notification of the proposal to the relevant local government body at least 42 days prior to the date specified for the purposes of paragraph 5(3)(d) as required by subsection 5(4) of the Payphone Consultation Determination.

H6. Further, the 10 July 2012 letter did not, as required by subsection 11(1) and subsection 10(3) of the Payphone Consultation Determination:

(a) include details of the location of a payphone that is the nearest payphone to the payphone which is proposed to be removed (paragraph 10(3)(b)); and

(b) include details of the website address for downloading a copy of the PCD (paragraph 10(3)(e)).

H7. Telstra therefore failed, in accordance with section 11, to provide written notification of the proposal to the relevant local government body as required by subparagraph 9(2)(b)(i).

H8. The notification of the proposed relocation of Payphone 07329707X2 published in the Classifieds and Trade Advertising section of the Jimboomba Times newspaper (the advertisement) did not, as required by paragraph 5(6)(a) and paragraph 5(3)(c) of the Payphone Consultation Determination, include the type of payphone proposed to be

87 Page 24 of the Second Response in relation to Payphone 07329707X2.


installed at the new site. Telstra therefore failed to provide written notification of the proposal to the relevant local newspaper as required by paragraph 5(5)(a).

H9. The ACMA notes Telstra’s comments in the Second Response in relation to the advertisement that “As this notice referred to the relocation of an existing payphone, it was implicit in the notice that there was no change to the type of payphone”.88 However, as explained in paragraph H4 above, the notice must include the “type” of payphone. The advertisement did not refer to the “type” of payphone to be installed at 26 Pub Lane, Greenbank, and therefore did not meet the requirements of paragraph 5(3)(c) of the Payphone Consultation Determination.

H10. Further, the advertisement did not include details of the location of a payphone that is the nearest payphone to the payphone which is proposed to be removed as required by subsection 12(1) and paragraph 10(3)(b) of the Payphone Consultation Determination. Telstra therefore failed to provide written notification of the proposal to the relevant local newspaper as required by subsection 12(1) of the Payphone Consultation Determination.

H11. The copy of the advertisement did not include the date of publication, although the notice appears to have been published in the Jimboomba Times on 18 July 2012.89

H12. The advertisement was, contrary to paragraph 5(5)(a) and subsection 12(2) of the Payphone Consultation Determination, published 33 days prior to the date of Telstra’s intended final decision specified in the advertisement of 20 August 2012. Telstra therefore failed to provide written notification of the proposal to the relevant local newspaper at least 42 days prior to the date specified for the purposes of paragraph 5(3)(d) as required by paragraph 5(5)(a) of the Payphone Consultation Determination.

H13. The ACMA Notice required Telstra to provide, in relation to specified payphones removed in the period from 5 September 2012 to 31 March 2013 (of which Payphone 07329707X2 was one):



H14. Telstra, with respect to this aspect of the ACMA Notice, confirmed:

88 Ibid.89 Item 5(c) on page 22 of the First Response.




H15. The exception from the requirement to prepare a PCD in subsection 9(3) of the Payphone Consultation Determination does not apply in respect of Telstra’s proposal to remove Payphone 07329707X2.92

H16. In light of Telstra’s response to the ACMA Notice, the ACMA is of the view that Telstra failed:



H17. The ACMA finds that in respect of the proposal to install the Payphone 07329707X2 at a new site at 26 Pub Lane Greenbank, Telstra did not comply with subsection 5(1) of the Payphone Consultation Determination as it failed to:

(a) provide written notification of the payphone installation proposal in accordance with subsection 5(3) of the Payphone Consultation Determination, as required by subsection 5(2) of that determination; and

(b) publish a notification of a payphone installation proposal in a local newspaper in accordance with subsection 5(3) of the Payphone Consultation Determination as required by paragraph 5(6)(a) of that determination.

H18. The ACMA finds that in respect of the proposal to remove Payphone 07329707X2 from 145 Teviot Road, Greenbank, Telstra did not comply with subsection 9(1) of the Payphone Consultation Determination as it failed to:


90 See item 5(d) on page 22 of the First Response.91 See item 5(e) on page 23 of the First Response.92 The First Response confirms that Payphone 07329707X2 fell into a class of payphones which was

removed from a site between 5 September 2012 to 31 March 2013 (inclusive), where, after the payphone was removed, no payphone remained at the site. See item 3 on pages 15-18 of the First Response.





Sections 6 and 16 – final decision

H19. The First Response provides the date of the final decision to remove Payphone 07329707X2 as 20 August 2012.93

H20. The ACMA finds that Telstra breached subsection 16(1) of the Payphone Consultation Determination by making a final decision on 20 August 2012 to remove Payphone 07329707X2 when it had not complied with the relevant notification requirements in Division 2 of Part 2 of the Payphone Consultation Determination.

H21. It is not clear from the First Response or from the information provided by Telstra in relation to Payphone 07329707X2, when Telstra made the decision to install the payphone at 26 Pub Lane, Greenbank. Therefore the ACMA does not propose to make any findings in relation to any final decision by Telstra under section 6 of the Payphone Consultation Determination in relation to that payphone.

H22. As Telstra has contravened section 16 of the Payphone Consultation Determination on 20 August 2012, the ACMA finds that it has breached subsection 12EG(3) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act on that date.


H23. Subsection 20(1) of the Payphone Location Determination provides that if a PUSP must ensure that at least one payphone is located at a site in order to comply with section 6 of the Determination (an eligible site), a payphone may only be removed from that site if:



93 See item 3(c) on page 17 of the First Response in relation to Payphone 07329707X2.


H24. Payphone 07329707X2 was removed on 24 September 2012.94 Prior to its removal, Payphone 07329707X2 was located at an eligible site.95 It follows that section 20 of the Payphone Location Determination applied in relation to Payphone 07329707X2 and the payphone could only be removed in accordance with that section.

H25. As noted above, the ACMA has found that Telstra’s final decision on 20 August 2012 to remove Payphone 07329707X2 was made in contravention of subsection 16(1) of the Payphone Consultation Determination. Accordingly, Telstra’s decision to remove Payphone 07329707X2 was not made in accordance with the rules in relation to the process for public consultation on the removal of a payphone set out in the Payphone Consultation Determination as required by paragraph 20(1)(a) of the Payphone Location Determination.

H26. The ACMA finds that by removing Payphone 07329707X2 on 24 September 2012, Telstra breached subsection 20(1) of the Payphone Location Determination by failing to satisfy paragraph 20(1)(a).

H27. The ACMA has not reached any concluded view about whether or not there were any additional breaches of subsection 20(1) by reason of any failure to satisfy paragraph 20(1)(b) in relation to Payphone 07329707X2. The ACMA intends to continue to closely monitor Telstra’s compliance with paragraph 20(1)(b) in relation to any future payphone removals.

H28. As Telstra has contravened subsection 20(1) of the Payphone Location Determination on 24 September 2012, the ACMA finds that it breached subsection 12EF(2) of the TCPSS Act and therefore also breached section 68 of the Telecommunications Act on the same date.



Attachment I

Findings in relation to Telstra’s compliance with the Complaint Rules Determination

I1. On 23 July 2013, ACMA staff reviewed the section of Telstra’s website relating to payphones. On 23 July 2013, the first page of the section of Telstra’s website relating to payphones did not, as required by subsection 7(1) of the Complaint Rules Determination, contain information about the complaints process which included information about the timeframes within which a person must make a complaint to the PUSP about the location or removal of a payphone and to the ACMA if the person is dissatisfied with the PUSP’s response to a complaint about a final decision to locate or remove a payphone.

I2. Further, the first page did not, on 23 July 2013, contain information about the low cost or free and flexible means by which a complaint may be made by a person about the location or removal of a payphone or information about the freecall general service contact numbers and multi-lingual enquiry lines which persons may use to make oral complaints and to obtain information about making written complaints (subsection 8(2)). Accordingly, as at 23 July 2013, Telstra was in contravention of subsections 7(1) and 8(2) of the Complaint Rules Determination by failing to publish the required information on the first page of the section of its website relating to payphones.

I3. As the ACMA has found breaches of subsections 7(1) and 8(2) of the Complaint Rules Determination as at 23 July 2013, it therefore finds Telstra breached subsection 12EH(2) of the TCPSS Act and section 68 of the Telecommunications Act on the same date.


Documents

Web viewwith respect to the removal of 6 payphones with the Cabinet ID numbers 02428535X2, 03632604X2, 07463956X2, 08839800X2, 07549119X2 and 08835220X2: