Jurisdiction

The customer lodged a complaint about the scheme member raising its broadband prices during a 12-month contract.

The scheme member refers to its contract terms and exclusion 2 of the Terms of Reference as below:

2. relating to the composition or level of charges (price) a Scheme Member sets in respect of Telecommunications Services (provided that a Consumer shall not be prevented from basing a Complaint on the Scheme Member engaging in misleading conduct regarding its pricing).

The customer’s complaint is on the basis that they have been ‘mislead’ when they entered into the contract.

The customer stated: “They have mislead me regarding the price per month as they agreed on the phone and in writing to $ [REDACTED] per month for 12 Months”.

It is therefore appropriate for this matter to proceed to mediation and adjudication for the substance or merit of the complaint to be considered.

Dispute

  1. This complaint arises from the scheme member’s increase of $6 per month to its [REDACTED] plan in October 2023.  The customer alleges that the scheme member has engaged in misleading conduct or breached the contract by changing the price.

Dispute outcome

  1. TDR’s determination is that the customers complaint is not upheld. The terms and conditions of the plan outline that the scheme member has the ability to change the pricing, provided it gives notice of this change.

Final determination

  1. In making this determination TDR has considered the information provided by the customer and the scheme member, and
  • Fairness in all the circumstances
  • Any relevant legal requirements
  • The Code and its service standards, including position statements; and
  • Any other relevant telecommunications code.
  1. The customer and the scheme member’s positions are such that there is no settlement of the dispute. 
  2. The reasons for the decision, along with the background to the dispute and the positions of the parties, are set out below.
  3. TDR also provided the parties with an opportunity to comment on the proposed determination. The customer responded, but the scheme member did not.

The dispute

  1. During August 2023, the customer took out a 12-month [REDACTED] plan with the scheme member.
  2. The scheme member emailed the customer confirmation of the plan details. This email contained reference to the scheme member’s Consumer Terms (the terms).

[REDACTED]

  1. On 16 August, the scheme member changed its Consumer Terms.

[REDACTED]

  1. The scheme member’s records show it sent the customer an email on 24 August 2023 which advised the customer that his [REDACTED] plan would increase by $6 from 2 October 2023.
  2. The customer’s bill dated 15 September 2023 also noted that changes were being made to some broadband plans and referred to the scheme member’s website for more information.
  3. On 15 October, the scheme member sent the customer an invoice that showed the higher plan charge.
  4. The customer contacted the scheme member on 16 October to dispute the higher charge, saying he believed it was contractually required to retain the original price until the end of the contract.
  5. The scheme member agreed to credit the customer for one month. The customer has requested a similar credit for each month of the remaining term of the contract. The scheme member has declined the customer’s request.

Positions of the respective parties

The customer’s position
  1. The customer says that the scheme member has engaged in misleading and deceptive conduct by claiming it can increase the plan’s price because fixed plan prices cannot be changed.
  2. The customer also says that a change of price was not mentioned in the phone call or email when he entered the contract.
The scheme member’s position
  1. The scheme member says the price change is valid because its consumer terms allow it to change its charges, and it met the notification requirements.

Reasons for the decision

  1. The email the scheme member sent the customer on 14 August referred to the Consumer Terms. The Consumer Terms were thus disclosed to the customer and form part of his contract with the scheme member. These provide that the scheme member can change its charges.
  2. The terms require the scheme member to provide 30 days notification of the price change. The scheme member met this requirement in the email it sent to the customer on 24 August.
  3. In terms of the customer’s concerns about misleading and deceptive conduct, the scheme member was correct that it has the ability to change the charges. It is thus not misleading nor deceptive to say or do so.
  4. TDR have also considered whether the scheme member contributed to the customers incorrect belief that the price could not change for the duration of the contract. None of the material provided by the scheme member to the customer indicated that the price was fixed for 12 months. Indeed, the Consumer Terms outlined that this is not so.

Responses of the respective parties to my proposed determination

The customer’s response
  1. The customer reiterated that the scheme member did not mention the possibility of a price change in the telephone call.
  2. The customer also said that the information provided by the scheme member does not demonstrate their agreement to the Consumer Terms.
  3. The customer said the scheme member misled them by hiding important conditions and because the cost was higher than expected.
The scheme member’s response
  1. The scheme member did not respond to my proposed determination.

Final determination

  1. It is standard commercial practice for terms to be set out in writing/electronically (as opposed to being verbally disclosed). The telephone call and the email sent to the customer both form part of the contract they have with the scheme member.
  2. The Consumer Terms were sent to the customer via a hyperlink in an email with a heading “Important info to read and file away”. Thus, the terms were disclosed to the customer and were not hidden from them.
  3. While the cost was higher than the customer expected, this does not mean the scheme member misled them. As noted above, TDR has not been able to find that the scheme member is responsible for the customers mistaken belief about the cost.
  4. In contract law, acceptance of terms can be explicit or implied. The Consumer Terms note that they apply to the services provided to consumers. A customer’s acceptance of those terms is implied from their use of the services.

Conclusion

  1. In light of the above, TDR’s final determination is that the customers complaint is not upheld.
  2. However, TDR suggests the scheme member considers amending their communications to be clearer about a customer’s acceptance of the consumer terms by use of the services.