Telstra has won in court the right to go ahead with the planned rollout of 1800 new payphones but there is another hurdle to turning them into a true digital street advertising network.
City councils in Sydney, Melbourne and Brisbane had objected to the digital ad-enabled screens attached to the new age telephone boxes, seeing them as an out-of-control advertising network by stealth.
These, they argued, were just a way of bypassing local planning regulations and the permission of the landowners in the name of revenue-generating advertising.
Telstra has a deal with outdoor advertising giant JCDecaux to exploit the electronic billboards with third-party commercial advertising in high foot traffic areas.
The Federal Court has found that Telstra has the right, and an obligation, as it always has had under commonwealth law, to make payphones available across Australia.
But the court says Telstra must seek approval from local councils if it wants to display commercial advertising on the digital screens other than the telco’s own services.
The court case was marked by creative arguments over what constitutes “low-impact facilities” -- payphones -- within the meaning of the Telecommunications Act.
Telstra, predictably, argued that the new payphone “cabinets” are low impact because, at the time of installation, they are not used to display commercial advertising.
The city councils, again predictably, contended that these new payphones are not low-impact facilities because they closely resemble electronic billboards or digital street furniture.
The councils wanted Telstra to apply for planning permission under local regulations, just like any other business.
Telstra, however, says it has a statutory “obligation” to ensure that standard telephone services and payphones are reasonably accessible to all in Australia.
In 2018, about 13 million telephone calls were made using Telstra’s public payphones. Of those, about 200,000 were emergency calls made to triple zero.
Most of Telstra’s existing old style payphone cabinets were designed in the 1970s and 1980s.
The new cabinets will incorporate a payphone, fixed and mobile telecommunications network connections, a mobile device charging port, and front and rear facing electronic LCD screens.
Between June and October 2018, Telstra installed 34 new payphones in Melbourne’s central business district after servicing notice to the Melbourne City Council.The council didn’t object then. These cabinets are 300mm high, 450mm wide with a depth of 312mm.
AdBooth Pty Ltd, a subsidiary of JCDecaux Australia, applied to the council on Telstra’s behalf for permission to display digital third-party commercial advertising on the 34 payphones. The council granted the commercial advertising permit applications.
The 34 new payphones are also capable of being used by local councils and emergency services to deliver safety information to the public, in real-time, via their rear facing electronic screens.
But in March 2019, the Melbourne City Council refused another application for 81 payphones because they were not low impact, they argued, as required by law.
The Melbourne City Council maintains that the structures are built such that they have “nothing to do” with a public payphone and everything to do with the “intended use to display advertising”.
The council told the court: “The specific purpose of a ‘public payphone cabinet’ is to provide a structure in a public place that houses a payphone instrument on which members of the public can make telephone calls. It is not the purpose of a public payphone cabinet to act as an electronic billboard.”
In court, the councils also argued that having a USB charger port was not a function of a payphone.
The council invoked the Macquarie Dictionary definitions of “cabinet” including “a piece of furniture with shelves, drawers, etc., for holding or displaying valuable objects, dishes” or “a piece of furniture holding a record-player, radio, television, or the like” and “a case with compartments for precious objects”.
The Shorter Oxford English Dictionary was also cited: “A secret receptacle, a repository” or a “case or cupboard with drawers, shelves … for storing or displaying objects” or a “small chamber; a private room” or a “small cabin; a tent; a rustic lodging; an animal’s den”.
The council argued that a cabinet is an enclosure with privacy. “Applied to a payphone cabinet, the defining feature of a payphone cabinet should be a private enclosure from which a member of the public can make telephone calls using a public payphone instrument,” the council said.
The judge, Mr Justice O’Callaghan, didn’t agree and nor was he impressed by the USB charger argument.
He allowed the payphones
The judge: “Telstra emphasised that it will not and cannot display commercial advertising on any New Payphone Cabinet unless and until it secures planning permission from a relevant local authority to do so.”
So the question whether a new payphone cabinet will display commercial advertising is one that can only be answered after completion of the planning approval process.
The judge: “Whether the new payphone cabinets will or will not be permitted to display commercial advertising is in the hands of the relevant local authority.”
In the meantime, Telstra can install the payphones and use the digital screens to advertise its own services.
But if the telco applies to run commercial advertising, the case may well return to court. The judge: “ … these issues must await another day, because courts do not grant declarations in relation to circumstances that have not occurred, and might never happen.”
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