Determinations

TDR Case Note T003430 (2008)

Issue

Customer service and charges for mobile broadband services.

Background

The customer subscribed to the Scheme Member Telecommunications Service Provider (‘the provider’) for mobile broadband service. In April 2008, the customer used the service while spending a weekend in Akaroa, and was charged $339.69. He queried the amount, but the provider did not return his calls. When he later travelled to Fiji in May 2008, he experienced difficulty in using the data roaming service. He sought the provider’s assistance and was advised that the data roaming charges in Fiji were $30.00 per Mb. On 4 July, back in New Zealand, the customer was shocked to receive a bill for $2,572.47. He again called the provider, and again his calls were not returned as promised. On 28 July he eventually received a breakdown of the data usage, which indicated charges of $1,829.61 for roaming in Fiji from 30 May to 14 June. The provider offered a goodwill credit of $900. On 29 July the customer questioned his internet usage charges but did not receive any reply. He contacted the provider again in August 2008, but again it did not return his calls as promised.

The customer lodged a complaint with the TDR about customer service and unreasonable charges for roaming services. The provider responded that it had credited $339.69 for the broadband usage in April, offered a credit of $68.35 for the customer’s calls from Fiji to the provider, and confirmed the earlier goodwill credit of $900 for his overseas roaming charges. The customer did not accept the offer regarding roaming charges and made a payment of $458.95, which is what he would have paid had he bought and used a new data card in Fiji for a month.

The provider responded that it did not have any control over the data downloaded by the customer’s computer programmes via its broadband network and that the customer was aware of data roaming charges before using the services. The provider also argued that the complaint in relation to service charges might be beyond the scope of the scheme.

Adjudicator’s decision

The adjudicator found that there were essentially two issues.

Firstly, the provider breached the Customer Complaints Code (the Code) by failing to reply to the customer as promised and unreasonable delays in responding to the customer’s complaints, as the service standards provided in s 4.1(a) of the Code say “…treat customers with respect and in a fair and courteous manner at all times”.

Section 33.8(a) of the Code clearly excludes consideration of claims for compensation for indirect costs from the jurisdiction of this disputes procedure. In the circumstances applying here, the Customer’s claim for payment for time spent in what he calls the project management of the issue clearly relates to indirect costs. The Customer was not requested or contracted by the Scheme Member to do what he did. Whilst it is understood that the delay of service caused issues which required the Customer to spend time that he felt he should not have had to spend addressing the problem, it is clear that the provisions of clause 33 do not allow for compensation for indirect loss. Claims for payment for loss of time expended dealing with issues relating to the delayed connection and travelling to a WiFi access point fall into that category. That part of the Customer’s complaint and consequent claim for compensation is, therefore, excluded from the scope of this Determination by the specific provisions of the Code.

The Customer’s claims for incidental expenses connected to that travel are also excluded from jurisdiction by the provisions of clause 33.8. They are also excluded from consideration by the contractual arrangements entered into by the parties, with regard to the provision of Residential Line Services to the Customer, and I will refer to this matter later in this determination.

Background

The issues between the parties arose as a result of the Customer’s change of residence in January 2009, and his arrangement with the Scheme Member for broadband and telephone services to be delivered to his new residence. When he moved to his new residence there was no telephone service. He requested technical assistance from the Scheme Member. Problems arose regarding the provision of that assistance and the visit of a technician to his residence.

Secondly, the adjudicator found that the issue of whether the provider had the ability to invoice the customer for roaming services was within the scope of the scheme, although consideration of whether the overseas roaming charges of $30.00 per Mb were reasonable was beyond the scope of the scheme, as provided in s 17 of the Code.

In relation to the roaming service, the Consumer Guarantees Act (the CGA) requires that any product or service provided be of an acceptable quality. There was no evidence suggesting that the provider’s roaming service was unacceptable. Regarding s 8 of the CGA (relating to guarantees as to fitness for purpose) there was no evidence suggesting that the service was unsuitable for use, except the connection difficulties in Fiji which were resolved following the customer’s calls to the provider; and a credit of $63.35 for this contact expense was offered by the provider. The adjudicator, therefore, did not find any breach of s 8 the CGA.

Section 11 of the Fair Trading Act (FTA) prohibits any person in trade from engaging in conduct which may mislead a customer as to the nature, characteristics, suitability for purpose, or quality of services. The customer was advised about the overseas roaming fees prior to using the service in Fiji. The data card installation guide also referred to software that included a panel displaying on-going volumes of data downloaded.

The provider’s website also provided tips on global roaming, including guidance on how to block automatic downloading of information onto the roaming computer, and how to limit potential roaming fees. The adjudicator therefore found that the provider had not misled the customer.

Regarding the terms and conditions of the original contract for service, the provider had the ability to charge the roaming fee it did in this case. Accordingly, the provider was entitled to invoice the customer for $1,829.61 for the roaming charges incurred in Fiji.

Final outcome

The adjudicator concluded that: (1) the provider breached the Code regarding customer service, and the appropriate remedy was a formal written apology to the customer; and (2) there was no breach of the Code or relevant statutory requirements regarding overseas roaming charges, which were charged in accordance with the contract, and the provider had not misled the customer. There was therefore no remedy awarded.