TPG Internet Fined $400,000 for Failing to Ensure Users Can Dial 000

The Federal Court has fined TPG Internet Pty Ltd $400,000 for failing to ensure all of its users had access to the emergency call services 000 and 112 in the case of Australian Communications and Media Authority v TPG Internet Pty Ltd [2014] FCA 382. 

The users in question had home phone services that were treated by TPG as "suspended" or "inactive".  Justice Bromberg found that by failing to give this access, TPG contravened ss 13 and 19 of the Telecommunications (Emergency Call Service) Determination 2009 ("the Determination") and consequently the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) ("the Act").

The chief executive of the Australian Communications Consumer Action Network, Teresa Corbin, told the Sydney Morning Herald:

Facts

TPG offered a home phone service product that was a prepaid landline using Voice Over Internet Protocol (VOIP) technology.   Mr John Vernon was a 'voice network engineer and architect' who was responsible for designing the software necessary for the technology to operate.  As part of the pre-paid system, customers with an insufficient balance were given a week’s notice before calls were "barred" to their service, and TPG would refer to these services as "suspended" or "inactive". 

When the service was originally launched, tests were carried out to ensure that calls to emergency lines would be carried from all phone services, whether or not they were successful.  However, following an upgrade to increase capacity, the software was rewritten and the tests were overlooked.  As a result, calls to emergency services from "suspended" or "inactive" services simply failed. 

Although the software change took place in March 2011, TPG only became aware of the problem on 20 September 2011, in what His Honour called "extremely unfortunate circumstances".  TPG had "suspended" the home phone service of a couple, who had been overseas and did not realise that TPG had been attempting to contact them.  Shortly after returning, the husband became ill, and his wife attempted to contact 000 from her home phone, which did not connect.  She instead had to contact the emergency services from her mobile, but due to poor coverage could not do this inside her house.  She was also unable to convey all the necessary information to the recipient, and could not immediately act on the information and instructions she received.  An ambulance arrived 27 minutes after the successful mobile call, but sadly the husband passed away a few days later.

This incident alerted TPG to the problem.  Both parties agreed that between 15 March and 21 September 2011, 193 calls were made to the emergency call service that did not connect due to accounts being "suspended".

Legislation

The Australian Commmunication and Media Authority (ACMA) is required under section 147 of the Act to make a determination imposing obligations on carriers and carriage service providers in relation to emergency call services.  The Determination applies to a carriage service provider who provides a “emergency telephone service”, defined in the Dictionary as including “a standard telephone service”.  In turn, the Act defines this as telephony that passes the “connectivity test”.

Under section 6(2) of the Act:

TPG’s argument turned on whether a "suspended" service met this connectivity test.

Decision

TPG argued that because of the suspension, users were not being "supplied with a service" since the account holders had failed to comply with their contractual obligations.   Alternatively, they argued that account holders were not “ordinarily able to communicate” as the suspension meant they could not “ordinarily” make calls.

His Honour dismissed these arguments and sided with the ACMA who brought the case in their role as regulators, finding that:

While His Honour found that Mr Vernon’s programming error was "inadvertent", he considered that TPG’s failure to implement policies to ensure 000 connectivity was serious, and that TPF had a "lax approach to compliance with important regulations" [at 65].  He acknowledged that there was no evidence on the facts that TPG had directly contributed to the husband’s death in the incident that had led to the discovery of the error.  However, he considered that "TPG’s failure could easily have led to the death of a person who might otherwise have been saved" [at 65].  His Honour also highlighted the fact that TPG did not take steps to ensure that the problem would not recur until 2013 as a factor that increased his desire to impose the "meaningful penalty" of $200,000 for contravening s 13 of the Determination and $200,000 for contravening s 19.

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Australian Communications and Media Authority v TPG Internet Pty Ltd [2014] FCA 382 (available from TimeBase)

TPG fined $400,000 for denying access to emergency numbers (Sydney Morning Herald, 16/04/2014)