[MLB-WIRELESS] Melbwireless Digest, Vol 12, Issue 14

[gregsonm at aanet.com.au]

Folks,

I'll add my five cents worth here... and let me say I'm no legal expert.

When I was involved many years ago in a fledgling community internet
organisation we came across a similar problem, however we managed to get
around the 'rules' so to speak because we were viewed as a free community
service which was funded by donations.

It has been 'many' years since then and I am sure things have changed
dramatically, but surely the community service bit still applies. But like
I said I am no expert...

Thanks, Mark

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> Today's Topics:
>
>    1. Re: Public internet access (Steven Haigh)
>    2. Re: Public internet access (David Ashburner)
>    3. Re: Public internet access (Mark Aitken)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Thu, 21 Sep 2006 01:35:27 +1000
> From: Steven Haigh <netwiz at crc.id.au>
> Subject: Re: [MLB-WIRELESS] Public internet access
> To: Dan Flett <conhoolio at hotmail.com>
> Cc: melbwireless at wireless.org.au
> Message-ID: <4C96D830-C415-4AF3-9B75-49634D50CCAA at crc.id.au>
> Content-Type: text/plain; charset=US-ASCII; delsp=yes; format=flowed
>
> On 20/09/2006, at 4:07 PM, Dan Flett wrote:
>> My personal preference would be for us to exploit the "non-commercial"
>> exemption.  I feel that it has not been properly explored.  The
>> ultimate
>> goal (I think) would be for us to be able to allow our members to
>> share
>> their personal internet connection on - at most - a cost-recovery
>> basis, and
>> to allow Melbourne Wireless to handle the authenitcation side of
>> things and
>> to provide a unified logon method to any Internet that anyone
>> choses to
>> provide to the network.
>>
>>> The difficulty in obtaining a carrier licence for coverage of
>>> Melbourne
>>> Wireless Group would be that, from my understanding of its
>>> operation, it is
>>> the individual members who own the base stations.  Therefore under
>>> section
>>> 42 requirements each individual owner would need to have a carrier
>>> licence
>>> or a nominated carrier licence in force.
>>
>> Again, they wouldn't if they could satisfactorialy prove they were
>> non-commerical.  One of the tests  of non-commerciality (from the
>> ACMA's own
>> fact sheet) is whether or not a contract has been entered in to -
>> i.e. pay
>> us money, we give you internet.  If the payment of a membership fee
>> could be
>> proved to not be linked to the provision of Internet access, then I
>> believe
>> that no contract has been made and the arrangement is therefore
>> non-commercial.
>
> Interestingly enough, I received a letter back from the minister for
> communications in the past few months. I wrote to them to ask if we
> would qualify for a ministerial exemption for the carrier license as
> we are a non-profit and community group. Below is the reply in full.
>
> ########### BEGIN LETTER ###############
> Dear Mr Haigh,
>
> CARRIER LICENSING AND EXEMPTIONS
>
> Thank you for your email of 5 March 2006 to the Minister for
> Communications, Information Technology and the Arts concerning the
> operations of Melbourne Wireless and seeking advice on carrier
> license exemptions. The Minister has asked me to reply on her behalf.
> I apologise for the delay in responding.
>
> As you would be aware telecommunications licensing is managed by the
> Australian Communications and Media Authority (ACMA). ACMA recommends
> that persons or businesses wishing to apply for a carrier licence, a
> nominated carrier declaration, or operating as a service provider
> should familiarise themselves with these provisions of the
> Telecommuncations Act 1997 and the Telecommunications (Consumer
> Protection and Service Standards) Act 1999.
>
> The Telecommunications Act (Section 51) allows the Minister to grant
> an exemption from the obligation to hold a telecommunications carrier
> license. While this power exists, its use is limited. The obligation
> to hold a carrier license and the related requirements associated
> with being a licensed carrier are important to assure strong law
> enforcement, consumer protection and service standards are met.
>
> As a general rule, carrier license exemptions are only granted in
> exceptional circumstances and where the exemption would not have a
> negative impact on, or would benefit, the long term interested of
> telecommunications users. An important consideration in this regard
> is whether the exempted operator would compete with, and be
> advantaged relative to commercial providers.
>
> To ensure the similar treatment of fixed line and wireless networks
> under the Telecommunications Act, a Ministerial Determination was
> issued in 2002 so that operators of wireless local area networks that
> provide services and single premises did not require a carrier
> license or nominated carrier declaration.
>
> While I appreciate that you consider the service that you provide
> offer community benefits, it would also be offered in competition
> with other licensed operators as a commercial venture. As such, any
> exemption would not be competitively neutral. It is unlikely,
> therefore, that a carrier license exemption would be granted in these
> circumstances.
>
> The Government recognises that license fees should not present an
> unreasonable barrier to entry for telecommunications service
> providers. In line with this, the carrier license charges were
> significantly reduced on 1 July 2004. The carrier license application
> charge was decreased from $10,000 to $2,200 and the fixed component
> of the annual carrier license charge fell from $10,000 to less than
> $1,000. Several small scale service providers have applied for, and
> received, carrier licenses under this reduced fee structure.
>
> Detailed information on carrier licensing and carriage service
> provider obligations is provided by the ACMA at http://
> www.acma.gov.au (licensing), or can be obtained by calling Mr Peter
> Skeen, Assistant Manager, Telecommunications Licensing on 03 9963 6707.
>
> Thank you for bringing your concerns to the Minister's attention.
>
> Yours sincerely
> <signature>
> JEREMY FIELDS
> Assistant Adviser
> ############### END LETTER ##################
>
> In the general drift of this letter, it looks like as we might offer
> a service in the present, or future that would compete with the
> telcos etc, that we would not be granted an exemption from the
> carrier licensing schemes.
>
> I am currently looking at writing a reply, however if anyone would
> like to help out on this to help convey our message to the Minister,
> then please feel free to contact me :)
>
> --
> Steven Haigh
>
> Email: netwiz at crc.id.au
> Web: http://www.crc.id.au
> Phone: (03) 9017 0597 - 0412 935 897
>
>
>
>
> ------------------------------
>
> Message: 2
> Date: Wed, 20 Sep 2006 15:58:30 -0700
> From: David Ashburner <d_ashburner at hotmail.com>
> Subject: Re: [MLB-WIRELESS] Public internet access
> To: Melb Wireless <melbwireless at wireless.org.au>
> Message-ID: <BAY101-DAV527C16F1942EAC503E64A92230 at phx.gbl>
> Content-Type: text/plain; charset=US-ASCII; format=flowed
>
>>
>
> The gist of the letter Steve received is "would we compete with and be
> advantaged relative to a commercial provider".
>
> This is a massive loophole that allows them to deny us an exemption.
>
> If we so much as offer anything for free that is an advantage to us for
> attracting customers ( who may not take up a contract with a commercial
> provider as a result ) and therefore grounds to reject an exemption.
>
> If we charge for anything then we are commercial and don't qualify for
> an exemption
>
> catch-22
>
>> ########### BEGIN LETTER ###############
>>
>
> ---snip ----
>>
>> As a general rule, carrier license exemptions are only granted in
>> exceptional circumstances and where the exemption would not have a
>> negative impact on, or would benefit, the long term interested of
>> telecommunications users. An important consideration in this regard
>> is whether the exempted operator would compete with, and be
>> advantaged relative to commercial providers.
>>
> ---snip ---
>
>> While I appreciate that you consider the service that you provide
>> offer community benefits, it would also be offered in competition
>> with other licensed operators as a commercial venture. As such, any
>> exemption would not be competitively neutral. It is unlikely,
>> therefore, that a carrier license exemption would be granted in these
>> circumstances.
>>
>>
>
> -- snip ---
>
>
>
>
>
> ------------------------------
>
> Message: 3
> Date: Thu, 21 Sep 2006 11:57:34 +1000
> From: Mark Aitken <nodegxt at yahoo.com.au>
> Subject: Re: [MLB-WIRELESS] Public internet access
> To: David Ashburner <d_ashburner at hotmail.com>
> Cc: Melb Wireless <melbwireless at wireless.org.au>
> Message-ID: <4511F18E.1040008 at yahoo.com.au>
> Content-Type: text/plain; charset=us-ascii; format=flowed
>
> David Ashburner wrote:
>
>>
>>The gist of the letter Steve received is "would we compete with and be
>>advantaged relative to a commercial provider".
>>
>>This is a massive loophole that allows them to deny us an exemption.
>>
>>If we so much as offer anything for free that is an advantage to us for
>>attracting customers ( who may not take up a contract with a commercial
>>provider as a result ) and therefore grounds to reject an exemption.
>>
>>If we charge for anything then we are commercial and don't qualify for
>>an exemption
>>
>>catch-22
>>
>>
>>
>
>
> Cant an enterprise like Melb Wireless have a fee for membership to a
> "club" and
>
> "oh yea, you get 'free' internet"
>
> ???
>
> Mark
>
>
>
>
> ------------------------------
>
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>
> End of Melbwireless Digest, Vol 12, Issue 14
> ********************************************
>