Disputed (voice) calls to adult services

Part 9A of the Telecommunications (Consumer Protection & Service Standards) Act 1999 ('the Act') regulates telephone sex services. The legislation requires a telephone company to comply with the following steps before it is permitted to bill a customer for access to a telephone sex service:

• The Customer must agree in writing to the use of their telephone service to supply telephone sex service calls (i.e. they must 'opt-in').
• The carriage service provider must issue the customer with a PIN that allows access to telephone sex services.
• The sex service call must be made to a number with an approved prefix (1901).

The legislation makes telephone companies liable for breaches of the legislation, but only where they bill a customer for the content of the service, not just for the carriage of the call.

Accordingly, where a customer complains about the billing of sex services, the TIO will expect a provider to waive all associated call costs where the legislative requirements have not been met. However, the TIO must first be satisfied that a sex service is in fact a sex service according to the definition outlined by the legislation; that is, that it would be concluded that most persons who call the service are likely to do so with the sole or principal objective of deriving sexual gratification from the call.

Where there is any dispute over whether or not a content service is a sex service as defined by the Act, the Australian Communications & Media Authority has the ultimate power to make a judgement about the content of a content service, and to issue a written certificate stating that a specified service is, or was, a telephone sex service.

In disputes relating to international calls to alleged sex services, Part 9A does not apply. The only exception may be where the rates charged are not in accordance with those outlined in the provider's Standard Form of Agreement (SFOA). Under Part 9A, there is a requirement that 'a charge for the supply of a telephone sex service is expected to be included in a bill sent by or on behalf of a carriage service provider'. For international calls, the phone company usually charges for the carriage of the call only; i.e. the charge for the content of the call is not included on the bill sent to the customer.

Where Part 9A does not apply, the TIO will consider complaints about disputed calls to adult services on the basis of what is fair and reasonable in all the circumstances.

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