Common Complaints & Outcomes

TDR receives a lot of complaints with a common theme. Because of this TDR has developed position statements about these complaint types, to show both consumers and Scheme Members how TDR approaches these complaints and how TDR is likely to respond. Please note that even if your complaint falls into one of these categories you can still talk with TDR about it.

The position statements cover the following issues:

Billing & Fees:

Services & Hardware:

Customer Service:

   

Billing & Fees 

 

 

Position statement: Back Billing
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Summary of the issue
A customer is dissatisfied after receiving an account for charges for periods prior to the current billing cycle. For example, the account may relate to charges for a line connection for the previous 6 months, which had not been included in earlier accounts sent to the customer.

Usual positions of the parties
The customer will typically be dissatisfied at receiving an account for previous periods, as often that larger-than-normal-account was unanticipated, or for significant amounts. At times customers hold concerns at being able to pay the account raised by the Scheme Member, as that account had not been budgeted for. The customer may state that had they known particular charges were being incurred, they would have taken action to stop those charges arising. The customer may seek to have either the charges waived, or a time payment arrangement applied.

Typically the Scheme Member will express regret that the charges had not been made during the appropriate billing cycle, but advise TDR that the back billing charges arose due to an error or oversight, or as a consequence of a delay in receiving charges from a third party provider. The Scheme Member will usually maintain their right to charge the missed charges, but will often be open to considering a time payment arrangement.

TDR’s view of the issue
TDR notes that the Telecommunication Carriers’ Forum Customer Complaints Code (the Code), requires that Scheme Members make reasonable efforts to ensure their billing is accurate. This means that charges should be brought in the correct billing cycle.

TDR accepts that from time to time, despite reasonable efforts, charges may be missed and not billed during the appropriate billing cycle. TDR accepts that such a situation would not excuse the customer of liability for those charges, providing the services for which they were charged were in fact used. However, TDR also notes that the Code requires that the customer be provided with a reasonable opportunity to pay any back-billed account.

On that basis, TDR expects that the Scheme Member and customer would work together to determine an appropriate time payment plan to repay any back billed accounts. If there is disagreement between the parties as to what a reasonably payment plan would be, TDR could assist with that determination.

 

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Position statement: Early termination fees for fixed term contracts

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Summary of the issue

A common complaint brought to TDR relates to Scheme Members applying a fee for the cancellation or variation of a contract before the expiry of its agreed term.

Usual positions of the parties

Typically the customer will either dispute the validity of the charge, or provide reasons why the charge should be waived.

Conversely, the Scheme Member will typically stand by its ability to charge the fee in that particular case, and will usually direct TDR to the particular terms and conditions which allow the charges to be brought. The Scheme Member may also advise that early termination fees are mentioned at the point of sale.

TDR’s  view of the issue

TDR accepts it is a common and valid approach for a Scheme Member to charge fees when a contract is terminated or varied before the expiry of the agree term. TDR notes that a customer typically receives reduced rates for calls or data when they contract with a Scheme Member for a longer term.

TDR will typically uphold a Scheme Member's decision to charge early termination fees, providing there is sufficient evidence to show the customer was advised that those charges would apply when the agreement was originally entered into.

 

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Position statement: Reconnection fees following suspension of service

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Summary of the issue

TDR has received complaints from customers in relation to being charged fees to reconnect their telecommunication services, following a temporary suspension due to non-payment of their account.

Usual positions of the parties

Complaints brought to TDR relating to reconnection fees are normally brought by customers concerned that the fees are unreasonable, and seeking to have them waived. The Scheme Member typically takes the view that the charges are warranted in the circumstances, and seek to have those charges upheld by TDR.

TDR’s view of the issue

TDR considers that when a Scheme Member has suspended a customer’s service, due to a mistake or an administrative error, that the service should be reinstated without any additional charge to the customer, and without delay.

Otherwise, TDR considers that a Scheme Member may charge its customer additional fees in reconnecting a service, providing those additional fees are allowed in the Scheme Member’s terms and conditions, and these have been made reasonably available to the customer. That is consistent with Clause 13 of the Telecommunication Carriers’ Forum Customer Complaints Code (the Code). Where the service was suspended due to non-payment of the customer’s account, TDR accepts that it is reasonable to expect all or part of that fee (at the Scheme Member’s discretion) to be paid prior to the services being reconnected, in addition to any additional fee as discussed above.

Other position statements which may be relevant

 

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Services & Hardware

 

Position statement: Broadband internet speed

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Summary of the issue

TDR receives complaints from customers relating to internet speeds. Concerns usually relate to speeds being slower than expected.

Usual positions of the parties

The usual position taken by customers is that they find the speed their internet service is provided at does not meet their expectation of what a broadband service should be. Complaints are often received relating to drop-outs in service, and being unable to connect to the internet at all on occasions.

Often Scheme Members will dispute that service is as slow as alleged, or provide an explanation as to why the customer is likely to have experienced slow speeds. Commonly Scheme Members advise TDR that they provide a ‘best efforts’ service, meaning they make no undertaking with their customers to provide any particular internet speed.

TDR’s view of the issue

TDR recognises that customers can access the internet using different services. Those include, dial-up, ADSL, ADSL2+, cable, or via a mobile connection (3G, GPRS, etc). TDR accepts that those different services will result in different potential speeds, and customer experience. Also, some Scheme Members allow the customer to elect different speeds in selecting the product which they contract for.

TDR accepts that a customer’s Internet speed is affected by a range of variables, such as:

  • Telephone line technology and service quality
  • Distance from the telephone exchange, i.e. the length of copper wire from the exchange
  • The number of, and type of, other services being used over the same cable by other customers
  • The configuration and line quality of the copper wire between the exchange and the customer’s premises/residence
  • Electrical interference from outside sources, e.g. electric motors and electric fences
  • The configuration of the copper wiring within the customer’s premises
  • The customer’s hardware or modem
  • The software configuration and application on the customer’s computer, in particular how it uses the uplink back to the exchange
  • The capacity of, load on, and access data rate of the destination host computer which the customer is accessing

TDR notes it is uncommon for a Scheme Member to make any particular undertaking as to Internet speed which a customer is likely to receive. The usual position is that the service provided will be a ‘best efforts’ service. TDR acknowledges that such a situation is in large measure a consequence of the variables noted above.

Generally TDR is not able to consider any complaints relating to Internet speed or congestion, as they are expressly excluded from the scope of the Customer Complaints Code.

However, TDR may be able to consider a complaint relating to a broadband service in the following situations:

  1. When the Scheme Member made an undertaking to the customer, or marketed their product as having a particular minimum speed. Such complaints will be considered under the Fair Trading Act 1986.
  2. When the complaint relates to a customer being unable to establish a reliable Internet connection. TDR considers that irrespective of the actual speed received, the customer should be able to establish a reasonably reliable Internet connection.

 

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Position statement: Mobile phone drop-outs and coverage issues

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Summary of the issue

TDR receives a number of complaints from customers concerning coverage issues for mobile telephone use, as well as having calls ‘drop out’ due to reception deficiencies.

Usual positions of the parties

The usual position taken by the customer is that they are unable to obtain reliable reception with their mobile phone. This appears to be more of an issue for customers outside of the main centres, such as in smaller communities or rural New Zealand. The Scheme Member will typically confirm to TDR the extent of coverage provided in the relevant area. The Scheme Member may submit that issues relating to the extent of network coverage are excluded from issues which TDR can consider.

TDR’s view of the issue

TDR recognises that coverage for a mobile telephone services is dependent on the customer being broadly within line of sight of a cell tower. It follows that a customer is unlikely to obtain reception if located in an area without such line of sight coverage. TDR acknowledges that issues relating to network coverage are outside the jurisdiction which TDR can consider. For example, TDR could not consider a complaint that a Scheme Member should provide mobile reception in a particular area. However, TDR considers it does have jurisdiction to consider a complaint if the customer had been misled by a Scheme Member.

 

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Position statement: Malicious interference with services

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Summary of the issue

A customer may bring a complaint to TDR in relation to their services being affected by the malicious conduct of another party. This may include, for example, the effects of viruses, freeloading (unauthorised use of a customer’s internet connection), or physical damage to the network or equipment.

TDR has also received complaints from customers who have had their services suspended for alleged misuse of the Scheme Member's service.

Usual positions of the parties

The position the parties take depends on the circumstances of the complaint. However, the customer may take issue with being unable to access services, or effects to their computer and phone equipment, or being charged for excess user fees for unauthorised data transferred on their internet connection. In the case of customers who have had their services suspended because of misuse, those customers typically challenge the basis on which that suspension was applied.

The common position expressed by Scheme Members is that customers are required to take reasonable precautions to protect from malicious interference with their telephone and computer equipment, and that any resulting charges are reasonably brought.

TDR’s view of the issue

TDR recognises that malicious use of services is an international problem which plagues both telecommunications providers and customers. TDR recognises that typically Scheme Members have some processes and facilities to protect its network and customers from some malicious attacks, but those actions do not preclude all risks to the customer. However, TDR considers that customers must also take reasonable actions to protect their service and computer equipment from malicious interference. This may include:

  • The use of software to protect from viruses, and to provide a firewall. TDR notes that various programmes are available on the internet to the public free of charge for that purpose
  • Taking reasonable efforts to protect physical property from loss or theft, such as protecting SIM cards, mobile telephones, and laptops
  • Using complex passwords which are not disclosed to protect computer equipment and connections, including wireless (Wi-Fi) connections

In cases of hacking and physical damage or loss of property, TDR encourages customers to report the matter to the Police.

In cases where a customer’s service has been suspended for misuse of the service, TDR notes that that the Telecommunication Carriers’ Forum Customer Complaints Code (the Code) allows for disconnection without notice when a customer’s use of services is malicious, illegal, fraudulent, or an activity which poses a material threat to other users. TDR will generally uphold a Scheme Member's decision to suspend a customer, providing there is sufficient evidence to confirm the misconduct described by the Scheme Member. TDR would make a finding of fact as to whether the misconduct warranted immediate suspension based on the individual circumstances of each case.

TDR may also uphold a Scheme Member’s decision to disconnect or suspend a service, when lawfully required to do so by another body or authority (for example following Copyright infringements).

Other position statements which may be relevant

 

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Position statement: Faulty mobile telephones

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Summary of the issue

A common complaint to TDR relates to faulty mobile telephones.

Usual positions of the parties

The usual position taken by the customer is to advise TDR that their mobile phone is faulty, and that they consider the Scheme Member should replace or reimburse costs for that faulty product. Typically the customer will state that they are unaware of any abnormal event which would have contributed to the equipment failure or damage. The customer may take issue with being required to pay charges before the Scheme Member will assess their mobile phone for damage.

The Scheme Member will normally submit to TDR that the phone in question has been damaged as a consequence of misuse by the customer, such as exposure to liquids or rough treatment, thereby voiding any warranty. The Scheme Member may refer to a technician’s assessment of the mobile phone.

TDR’s view of the issue

There are two broad legal considerations which TDR will consider. These relate to the protections afforded to the customer either by warranty, or under the Consumer Guarantees Act 1993.

The warranty will typically set out a fixed period which the Consumer will have the protections of having the manufacturer or seller standing behind the product. For example, replace or repair a faulty product within a set timeframe. The Consumer Guarantees Act sets out a range of protections which will automatically apply to a retail sale of a product. These include a requirement that the product (phone) be of an acceptable quality and fit for purpose. TDR will consider any evidence available which provides an indication as to how the mobile phone had been treated by the customer, in determining whether it was of an acceptable quality, and fit for purpose.

TDR notes that a seller’s warranty will not replace the protections available under the Consumer Guarantees Act. However, TDR recognises that a seller and business customer can contract out of the Consumer Guarantees Act protections.

With regard to water-damaged mobile phones, TDR does not consider that a mobile phone treated with reasonable care should experience difficulties with moisture. If TDR were to accept that a mobile phone had not been exposed to liquid water (compared with humidity), if the phone was determined as damaged from liquid, TDR may find that mobile phone not fit for purpose.

TDR does not consider it is possible to determine with precision what life span should be expected from a mobile phone. Such consideration would depend on the build quality of the product, and how that phone was treated. However, it would be expected that a mobile phone should last for at least 1 – 2 years if treated with reasonable care. TDR will also take into consideration the term of any fixed term contract under which the mobile phone was supplied.

TDR does not consider there is any ability for a Scheme Member to require the payment from a customer of a fee, prior to assessing a mobile phone for damage.

 

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Position statement: Lost or misplaced mobile telephones

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Summary of the issue

Complaints have been received regarding lost or misplaced mobile telephones, or SIM cards. Disputes usually arise in relation to charges for subsequent unauthorised calls made from that phone, or use of the SIM card.

Usual positions of the parties

The usual position taken by the customer is to dispute liability over paying any charges incurred by the person who had taken possession of the mobile phone or SIM card. Normally the Scheme Member will maintain that the charges have been validly brought under the customer’s contract. Usually the Scheme Member will point to a clause in the terms and conditions which hold that a customer is liable for all calls made using the SIM card supplied. The Scheme Member may require a copy of the Police report that records the theft or loss.

TDR’s view of the issue

In TDR’s experience most telecommunication providers have clear terms and conditions stating that the customer is required to secure their mobile telephone, and SIM card, and that the customer is liable for any charges incurred by an unauthorised third party. It is also common for a Scheme Member’s terms and conditions to require the customer to notify the Scheme Member immediately once a mobile phone or SIM card is lost or stolen.

TDR considers the onus for keeping a mobile telephone or SIM card secure reasonably sits with the customer. TDR also accepts it is reasonable to require the customer to notify the Scheme Member immediately once the mobile phone or SIM card becomes lost or stolen, and to provide evidence such as a Police report, if requested. TDR expects the Scheme Member to immediately block use of that SIM card, once notified by the customer that it is no longer in their possession. Any charges for calls made after the notification should not reasonably be the responsibility of the customer. Otherwise, TDR will generally uphold a Scheme Member’s right to charge for calls incurred from a lost or stolen mobile phone or SIM card.

 

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Customer Service

 

Position statement: Customer Service Issues

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Summary of the issue

A customer may bring a complaint to TDR regarding a perceived failing of customer service on the Scheme Member's behalf. This may include a representative providing incorrect information, being rude or discourteous, or failing to respond to a complaint within a reasonable period of time.

Usual positions of the parties

When a customer service complaint is brought to TDR the customer will typically point to a specific instance or instances of perceived failings in service from the Scheme Member. The Scheme Member may either acknowledge or dispute any alleged service failing. If the complaint is disputed, the Scheme Member will often provide evidence or an explanation supporting its position.

TDR’s  view of the issue

TDR will typically require the parties to provide specific details regarding the history of the customer service issue. This may include any evidence, such as copies of correspondence or electronic records such as call logs, or telephone call recordings. Any complaint must be in relation to specific events, rather than a general sense of dissatisfaction.

The Telecommunication Carriers’ Forum Customer Complaints Code (the Code), requires that Scheme Members:

  • Treat customers with respect and in a fair and courteous manner at all times
  • Provide information which is up to date, accurate and in plain English
  • Be clear in communications, and to deliver on promises in a reasonable and timely manner
  • Make relevant terms and conditions available to customers.

Customer service complaints to TDR will be considered in light of the above requirements.

TDR also expects, in line with the requirements of the Code, that Scheme Members provide their customers with a complaints handling process that is visible, accessible and responsive. TDR will be careful to distinguish between a customer’s concern regarding customer service, and services received (such as for example network or hardware performance). When considering a complaint relating to customer service issues, TDR will also consider the conduct of the customer toward the Scheme Member.

Other position statements which may be relevant

 

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Position statement: Agencies acting for Scheme Members (resellers)

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Summary of the issue

It is common practice for third party businesses to provide services for Scheme Members. Those services may, for example, relate to technical support, retailing, or direct marketing. Issues arise from time to time as to whether TDR has jurisdiction to consider a complaint which has arisen against an agent of a Scheme Member.

Usual positions of the parties

Often the customer is unaware that the business from which the complaint arose was not the Scheme Member but an agent of the Scheme Member. Therefore the customer will likely consider the complaint should be accepted by TDR. The Scheme Member may take issue with TDR having the ability consider a complaint against an agent, as it is not strictly a complaint against a Scheme Member.

TDR's view of the issue

TDR recognises it is common practice within the industry that some services are provided by agents to the Scheme Members. Typically those agents will carry the Scheme Members branding, and for all intents and purposes, trade as the Scheme Member. Often customers are unaware they are dealing with an agent and not the actual Scheme Member itself.

When considering complaints against an agent, TDR will generally apply the law of agency. Put simply, the Scheme Member (the principal) will be bound by any contract or undertaking entered into by its agent, providing that the agent has acted within the scope of their authority from the Scheme Member. A customer may rely in good faith on the representations from the agent as being representations binding on the Scheme Member. Accordingly, it is likely that TDR will accept a complaint made against an agent as being a complaint made against the principal Scheme Member.

Other position statements which may be relevant

 

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 Position statement: Notification of suspension or disconnection of service

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Summary of the issue

A Scheme Member may suspend or disconnect a customer’s service for a range of reasons (for example non-payment of an account, or misuse of the network). The issue arises as to what notice a Scheme Member must provide to its customer before services are suspended or disconnected.

Usual positions of the parties

TDR has received complaints from customers concerned that their services have been suspended, or disconnected, without adequate notice to allow the customer to remedy the situation. Issues also arise relating to the practical effect of customers’ services being disturbed resulting in inconvenience and loss of business. Customers have advised TDR that, had they received better notice, they could have remedied the situation and therefore avoided the suspension or disconnection. The position often taken by Scheme Members is that there was good reason to restrict services, and may point to the terms and conditions which apply to the customer’s service.

TDR’s view of the issue

TDR considers that a Scheme Member is within its rights to suspend or disconnect a customer’s service for non-payment of an overdue account, providing the customer has been provided with reasonable notice of the amounts outstanding.

Where a Scheme Member intends to disconnect a customer’s service, at least five working days notice must be provided to the customer. Where a Scheme Member only intends to restrict a service (for example a toll bar, or internet bar), no notice is required. TDR considers ‘reasonable efforts’ to notify the customer to be two or more attempts to contact the customer by phone, email or text message, or a combination of those methods. If the notice has been made by letter, TDR accepts that one letter would be sufficient, providing the proposed date for disconnection takes account of the delays experience in the normal course of a postal service.

The Telecommunication Carriers’ Forum Customer Complaints Code (the Code) prohibits a Scheme Member from disconnecting a customer’s service for non-payment of an account that is the subject of a complaint to TDR. However, a Scheme Member may disconnect any services which are not the subject of any complaint (for example in a dispute over telephone charges, a suspension may be made of internet services). A Scheme Member may disconnect a customer, without notice, when they reasonably deem the customer’s activity to be malicious, illegal, fraudulent, or for any activity that may pose a material threat to the Scheme Member’s network, or to any other user.

TDR will uphold a Scheme Member’s decision to disconnect a customer’s service, when satisfied that the customer has a history of abusive behaviour toward the Scheme Member’s staff. TDR may also uphold a Scheme Member disconnecting or suspending a service when lawfully required to do by another body or authority (for example following Copyright infringements, or at the direction of a receiver). 

Other position statements which may be relevant

 

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Position statement: Complaints lodged by persons other than a Customer of the Scheme Member

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Summary of the issue

TDR has received complaints from people in relation to telecommunication services in general, or specific providers when the provider may not be a Scheme Member, where the person may not be a customer. TDR’s jurisdiction to consider a complaint is limited to considering complaints from ‘customers’.

Usual positions of the parties

Usually when a person contacts TDR they have a grievance or concern which is of importance to them, and they consider that TDR should be able to consider that matter. At times the person may be bringing the complaint on behalf of the actual customer, and as such consider they are acting as a representative, and that the complaint should be accepted. When issues as to jurisdiction arise, the usual position a Scheme Member would take is to submit that the complaint cannot be considered by TDR, as the complainant is not a ‘customer’ as defined in the Telecommunication Carriers’ Forum Customer Complaints Code (the Code).

TDR's view of the issue

TDR can only consider a complaint when that complaint is brought by a ‘customer’. The term ‘customer’ is defined in the Code as follows:

“Customer” means a person who has a bona fide Billing Relationship with a Scheme Member in respect of a Telecommunication Service. The customer is the end user (i.e. not a wholesale customer).”

A complainant will be considered a customer when they are either the account holder for private telecommunication services, or a representative of a business with 19 or fewer employees (a requirement also defined in the Code). TDR will accept a complaint lodged by a representative of the account holder if satisfied that the person is properly authorised to bring the complaint on behalf of the account holder. TDR cannot consider any complaints being advanced by a Lawyer representing the customer.

TDR can only accept complaints lodged against Scheme Members. If the provider who is the subject of a complaint is not a Scheme Member, unfortunately TDR will have to advise the complainant that it cannot assist with the complaint. The complainant is able to take their complaint to other forums such as the Disputes Tribunal. 

Other position statements which may be relevant

 

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