Telecommunications Act 1997: Carrier Licence vs CSP and Section 313 Obligations
How the Telco Act distinguishes carriers from carriage service providers, the carrier licensing regime and section 313 law enforcement assistance duties.
Carrier vs CSP
A carrier, as defined under the Telecommunications Act 1997 (Cth), is an entity that owns network units used to supply carriage services to the public. To operate, a carrier must hold a carrier licence from ACMA. A carriage service provider (CSP), on the other hand, supplies carriage services but does not own the network units; therefore, a CSP does not require a carrier licence.
Eligible CSPs are specifically defined within the Telecommunications (Consumer Protection and Service Standards) Act 1999 and focus on supplying standard telephone services to residential or small business customers. These CSPs are required to be members of the Telecommunications Industry Ombudsman scheme TCP Code C628 telco consumer protections.
A ‘nominated carrier’ declaration provides a mechanism whereby a CSP can assume some of the regulatory responsibilities typically held by a carrier regarding the carrier’s network units.
Carrier licensing and annual charges
Carrier licences are granted by the Australian Communications and Media Authority (ACMA) following an application process outlined in section 56 of the Telecommunications Act 1997. ACMA also publishes carrier licensing guidance and maintains a public register of carriers. Standard licence conditions are detailed in Schedule 1 of the Telecommunications Act 1997.
The Telecommunications (Carrier Licence Charges) Act 1997 imposes an Annual Carrier Licence Charge on each carrier licence that is in effect at the beginning of a financial year. Carriers that generate eligible revenue exceeding $25 million are classified as ‘participating persons’ and are subject to additional annual charges. These carriers also have Spam Act 2003 obligations.
Further information regarding carrier licensing and associated obligations can be found within the relevant legislation and guidance materials published by ACMA.
Section 313 obligations
Section 313 obligations place requirements on both carriers and CSPs. These obligations under section 313(1) require them to take reasonable steps to prevent their networks and facilities from being used to commit offences under Commonwealth, state and territory law. This includes taking action to prevent the misuse of telecommunications infrastructure for unlawful purposes. do not call register obligations are one example of the types of offences covered.
Furthermore, section 313(3) mandates that carriers and CSPs provide reasonable assistance to law enforcement officers and authorities in enforcing criminal law and laws imposing pecuniary penalties. This assistance can take various forms, including providing interception services, access to billing records, and call tracing information. These obligations are closely linked to interception warrants issued under the Telecommunications (Interception and Access) Act 1979.
Section 314 outlines the terms and conditions that govern the assistance provided by carriers and CSPs in fulfilment of their obligations under section 313. This section ensures that the provision of assistance is managed appropriately and in accordance with legal requirements.
Other key Telco Act obligations
Carriers and eligible Customer Service Providers (CSPs) have obligations under the Telecommunications Act 1997 beyond those related to licensing. These include adherence to the Telecommunications Sector Security Reforms (Part 14), which mandate the protection of telecommunications networks from unauthorised interference.
Furthermore, carriers and CSPs are required to comply with industry codes registered by the Australian Communications and Media Authority (ACMA). An example of such a code is C628, the Telecommunications Consumer Protections Code.
Breaches of the Telecommunications Act 1997 can result in civil penalties under Part 31 of the Act, as well as licence sanctions. Certain standard telephone service providers also have specific obligations relating to the customer service guarantee, priority assistance, and untimed local call provisions. Universal service obligations are fulfilled by Telstra through statutory contracts with the Commonwealth.
Frequently asked
Do MVNOs and resellers need a carrier licence?
Generally no. Mobile virtual network operators and resellers typically operate as CSPs over a host carrier's network and do not need a carrier licence themselves. They still have CSP obligations including industry code compliance and TIO membership.
Can a carrier refuse a s 313 request from law enforcement?
Section 313(3) compels reasonable assistance to enforce the criminal law. Carriers cannot refuse a properly authorised request, although the scope of 'reasonable' assistance is limited by terms in s 314 and overlapping warrant requirements under the TIA Act.