5. JURISDICTION

5.1 Matters within jurisdiction

Clause 3.1 of the TIO's Constitution specifies that the function of the Ombudsman is to receive, investigate and facilitate the resolution of:

1. complaints about billing, or the manner of charging, for the supply of carriage services
2. complaints as to the provision or supply of (or the failure to provide or supply) telecommunications services by a Member, other than complaints in relation to general telecommunications policy or commercial practices of a Member
3. such other complaints as may, by agreement with the complainant, be referred to the TIO by a Member.

Clause 4.1 states that the functions of the TIO include, but are not limited to, investigating and facilitating the resolution of complaints as to the following:

• the standard telephone service
• the provision of access to the Internet or another public electronic communications network (including complaints relating to billing for such a service)
• public mobile telecommunications services
• operator services
• directory assistance
• fault reporting and repair and maintenance services
• printed and electronic white pages
• billing not in accordance with a tariff or terms and conditions which are, under Part 23 of The Telecommunications Act 1997, applicable
• failure to supply a good or service in accordance with a tariff or terms and conditions which are, under Part 23 of the Telecommunications Act 1997, applicable, and
• interference with the privacy of an individual in terms of noncompliance with the Information Privacy Principles contained in s.14 of the Privacy Act 1988 or any industry specific privacy standards which may apply from time to time. (Since 21 December 2001, the TIO also considers complaints about noncompliance with the National Privacy Principles by companies with a turnover of $3 million or more).

Clause 4.2 of the TIO's constitution states that the functions of the TIO in relation to complaints from owners or occupiers of land include, but are not limited to, investigating and facilitating the resolution of complaints as to the following:

• failure by a carrier to give notice of its intention to exercise its statutory rights
• failure to take all reasonable steps to cause as little detriment, inconvenience and damage as reasonably practicable, in accordance with any applicable statutory or contractual requirement, and
• inadequate compensation where compensation is required by any applicable statute or contract to be paid.

5.2 Matters outside jurisdiction

Clause 4.3 of the TIO's constitution states that the functions of the TIO do not extend to complaints relating to:

1. the provision or supply of customer premises equipment, other than the non-switching handset that terminates the standard telephone service and auxiliary goods supplied under a tariff or in accordance with terms and conditions applicable under Part 23 of The Telecommunications Act 1997
2. cabling beyond the network termination point, other than cabling from the network termination point to the first telephone and, in the case of residential carriage services, cabling to other extensions of that service within the residential premises
3. business directories, including but not limited to "Yellow Pages"
4. commercial activities which do not include the provision of carriage services
5. the setting of tariffs
6. the 000 emergency service
7. Universal Service Obligation policy matters
8. matters of telecommunications policy
9. matters which may involve anti-competitive behaviour or restrictive practices potentially in breach of the Trade Practices Act 1974
10. matters which are specifically under consideration by the Australian Communications & Media Authority, the Australian Competition and Consumer Commission or any court or tribunal, or which have been considered by any of those bodies previously
11. the content of a content service (as defined in The Telecommunications Act 1997), and
12. an alleged breach of an industry code or industry standard by a Member of the Telecommunications Industry Ombudsman Limited, where the complaint is made by a Member of the Telecommunications Industry Ombudsman Limited or another industry Member.

5.3 Definition of small business

The TIO investigates complaints by residential and small business users of telecommunications and Internet services.

As a guide, the TIO generally regards a business as small if it employs less than 20 people.

However, the TIO may also exercise its discretion to investigate complaints by businesses that have more than 20 employees.

When deciding whether a business is small, the TIO also takes into account the following factors:

• whether the company's average annual expenditure on carriage/content services with the supplier is $20,000 or less (excluding any significant capital outlay)
• the company's annual turnover
• any amount in dispute
• the issue in dispute, e.g. is it about complex technologies not generally purchased by residential/small business users?

TIO members that are small businesses

The TIO may investigate complaints from one TIO member against another TIO member if the TIO member making the complaint is a small business and the complaint relates to services for which the provider is the end user, e.g. administration lines.

The TIO cannot investigate a complaint from a TIO member that is also a small business if the complaint relates to services for which the TIO member is not the end user, e.g. lines used to provide carriage services to customers. This is because 3.2(b) of the TIO’s Constitution says, 'Complaints may not be made by an intermediate user of a carriage service except where the complaint relates to a carriage service provided or supplied for the complainant’s own use.'

5.4 Time limit to jurisdiction

A complaint must have arisen from events that became known to the complainant less than one year prior to the complaint being made to the TIO. However, the TIO has the discretion to extend this period to two years. [Constitution Cl.3.2(e)]

5.5 Commencement of Legal Proceedings

Clause 4.3(j) of the TIO's Constitution states that the functions of the TIO do not extend to complaints relating to matters which are specifically under consideration by the Australian Communications & Media Authority, the Australian Competition and Consumer Commission or any court or tribunal, or which have been considered by any of those bodies previously.

However, Clause 6.9 of the TIO's Constitution places some restrictions on TIO members from commencing legal proceedings. Specifically, subject to paragraph 6.8(a) of the Constitution, between the time when member is notified of a complaint to the TIO and the time when that complaint is settled, withdrawn or resolved or otherwise ceases being handled by the TIO, the member complained against must not commence proceedings in any court, tribunal or alternative dispute resolution forum in relation to the subject matter of the complaint. Some exceptions are listed in Clause 6.9 of the Constitution.

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