Jurisdiction decision
This is within jurisdiction and therefore a complaint that TDR can consider. This is despite [Scheme Member]’s response that it is outside jurisdiction under Clause 18.1.13. “if it relates to matters which the Scheme Member is prevented by law from resolving.” As far as I can understand there is no law that prevents [Scheme Member] from changing someone’s phone number. It has advised in its advertising that it may do this in “unusual circumstances” and confirms that it “owns” the phone number. Therefore, it is not clear as to what law is involved. Further [Scheme Member] has not indicated what are “unusual circumstances.”
The question does arise whether the warnings provided by [Scheme Member] regarding credit top ups in the year are sufficient. Whilst indicating that a customer may lose the “chance to keep that number” - should there be a warning that the number maybe recycled and reallocated to a new person?
But primarily the reason for this matter to go to mediation is to determine if there is a solution. The Customer has indicated that he has attempted to contact the number with no success. [Scheme Member] have already indicated (erroneously it appears) that the number had not been recycled and reallocated but noted that a new customer has leased the number. As such there seems to be a bit of confusion in its response over the status of this number. It also has not, as noted above, indicated what the criteria would be for there to be “unusual circumstances” for [Scheme Member] to change someone’s number.” Has [Scheme Member] asked or considered asking the recipient of the number as to whether they would relinquish the number?
As such there is enough information to make this matter suitable for mediation/adjudication by TDR.
Position of the respective parties
The Customer
The Customer came to TDR to seek assistance to have his old telephone number returned to him.
The Customer considers himself to have been a loyal [Scheme Member] customer for approximately 15 years and had used the same prepaid mobile phone number. In early 2019 the Customer left New Zealand to work in Europe and used a separate SIM to conduct his personal and business affairs while overseas. The New Zealand SIM remained in his passport wallet to be used on his return to New Zealand.
Upon returning to New Zealand in July 2021, the Customer reinstated his New Zealand SIM but was unable to connect to the [Scheme Member] network. He was informed by [Scheme Member] that while he was overseas his number had been recycled to a new customer’s SIM as part of its standard procedure. The Customer was unaware that [Scheme Member]’s standard procedure allowed it to recycle a number if it had not been topped up for twelve months.
[Scheme Member] has advised the Customer that ‘his’ old number has been allocated to a new SIM and the Customer thinks it reasonable that [Scheme Member] should use their discretion to swap the number given to this new customer and reinstate the number he has had for the last 15 years. The Customer’s concerns relate to his personal safety and integrity where this old number is stored under his name on multiple databases including business partners, job agencies, government and financial institutions and social media. In particular, the number is linked to his two-factor authentication codes for multiple government and financial online services. The result of this has caused considerable inconvenience by way of missed calls.
The Customer has been informed that ‘his’ old number is now in use by a new customer, however he believes that as this new customer has only had the number for approximately 8 months, the impact on their life of a number change would be minor. [Scheme Member] has the authority to change a number in unusual circumstances and the Customer believes his case should come within this criterion.
The Customer is seeking to either have ‘his’ number returned to him or for [Scheme Member]’s number recycling policy to be reviewed to take into account the length of time a number has been in use by a particular customer.
[Scheme Member]
[Scheme Member] confirm that the Customer was allocated a number on a prepaid connection on 9th October 2006. [Scheme Member] refer to the number as being ‘leased’.
On 21 December 2019 [Scheme Member] sent an automated message to the number to warn of its impending credit expiry and suggest that a top up was required. A further message was sent on 13 January 2020 and a final message on 19th January 2020, a year after the last top up, advising that credit had expired and that the number needed to be topped up to remain active or it would be disconnected. On 20 April 2020 the prepaid account was disconnected in line with [Scheme Member]’s terms and conditions. Six months after disconnection, the number was reallocated to a new prepaid connection with [Scheme Member].
[Scheme Member] acknowledge the Customer’s concerns but consider it unreasonable that he ought to have expected [Scheme Member] to have kept the number allocated and connected for him until he returned to New Zealand. There had been no top up or activity for approximately 30 months.
[Scheme Member] say that the Customer made no attempt to contact it prior to returning to New Zealand to ensure that the number was still connected to him, and that the onus was on him to ensure that it was connected before advising the number to various contacts.
[Scheme Member] comment that number reallocation is normal practice in the Telco industry as there is only a finite number range available. It does not consider the Customer’s circumstances to be rare or unusual; circumstances that would allow it to change the number in question that has now been reallocated. A new [Scheme Member] customer has a lease agreement for the number and is paying [Scheme Member] for this service. Further, [Scheme Member] say that it has acted in good faith and within its contractual obligations and cannot change or cancel this arrangement without being in breach of its terms or the Code.
Issue for adjudication
The issue for adjudication is:
1. Did [Scheme Member] act correctly when it disconnected the phone number the Customer had used for approximately 15 years?
2. Should [Scheme Member] change the phone number that it has now reallocated for the benefit of a new customer?
Decision
The decision is based on:
- The written and verbal evidence provided by all parties
- New Zealand Law
- The terms and conditions of the contract between the Customer and [Scheme Member]
- The New Zealand Telecommunications Forum Customer Complaints Code (CCC)
1. Did [Scheme Member] act correctly when it disconnected the phone number the Customer had used for approximately 15 years?
Both parties agree to the circumstances leading up to the Complaint. The Customer’s phone number was disconnected from the [Scheme Member] network on 20 April 2020, approximately 15 months from when the prepaid balance was last topped up and a roaming pack added. Three reminder notifications were sent to the Customer advising that credit only lasts for 12 months, the final one advising that unless a top up was made it would be switched off:
”19.01.20 01:05:10 Final credit expiry warning sent to line number ….. FROM [SCHEME MEMBER]: Last chance to keep this mobile number. Top up before (ACCOUNT_EXPIRY_DATE) or it’ll be switched off. Do it at m.[Scheme Member website]. or using the app”
The phone number was not allocated to another customer until 23 October 2020 which was approximately 9 months from the date of disconnection.
[Scheme Member]’s terms and conditions Clause 7, Paying for prepaid services states:
"7. ……..You’ll need to add credit to your account at least once a year or your account will be closed. Any credit, data, texts or minutes left on your account will expire if your prepaid account is closed.”
The Customer says he was unaware of this clause in [Scheme Member]’s terms and conditions. This fact does not absolve the Customer from being a party to the term which is available to view on [Scheme Member]’s website.
The CCC under Clause 11 also deals with disconnection of numbers:
“11.2 Where a Scheme Member intends to disconnect a Customer because the Scheme Member considers that the Customer has not paid a bill disconnection should only be considered if the Scheme Member has used reasonable endeavours to notify the Customer that they have outstanding amounts owing.”
"11.3 Scheme Members will notify Customers at least 5 Working Days before the Scheme Member will disconnect the Customer for non-payment….”
It is clear from the above that [Scheme Member] was not in breach of the CCC or its terms and conditions when it disconnected the Customer. The Customer was notified on 3 separate occasions and was not disconnected until 3 months following the last notification.
2. Should [Scheme Member] change the phone number that it has now reallocated for the benefit of a new Customer ?
[Scheme Member] is correct in confirming that a phone number and the SIM belong to it and not the customer.
“Mobile and Wireless Terms
Getting started on a wireless service
1. ……Even when you’re using it, the SIM card is [Scheme Member]’s property…..”
Customers lease the number they acquire through the contract they enter into when they purchase a SIM and phone number. [Scheme Member]’s contract with customers is governed by terms and conditions that are available to view on its website. The Customer asserts that his situation ought to be viewed as an unusual circumstance as outlined below and that this clause ought to give [Scheme Member] the authority to change the number for his use. The relevant term with regard to changing a phone number is:
“Mobile and Wireless Terms
Getting started on a mobile service
1. Your phone number: ………..While you’re with [Scheme Member], your mobile phone number remains our property so you cannot sell or transfer it to anyone. It’s possible we may sometimes need to change your phone number. But only very rarely, in unusual circumstances, would we do that, and we’d give you reasonable notice beforehand. If you ever disagree with the way we’ve allocated phone numbers our decision will be final, as long as it’s reasonable and we’ve acted in good faith.”
I accept that the Customer would have been extremely frustrated to discover that ‘his’ old phone number had been allocated to another customer, particularly as it was linked to him via other platforms. However, his particular situation, of not topping up the SIM after a 12 month period, does not fit into the definition of ‘unusual’ as outlined in [Scheme Member]’s term above, to have provided [Scheme Member] with the necessary authority to change the number from its new owner back to him. ‘Unusual’ is defined as a situation that is strange or exceptional and does not happen very often. Phone number deactivation and reassignment of numbers is part of the normal practice of telecommunication companies. It is a comparatively normal practice for people, especially travellers, to abandon a SIM after a short period of use. There is a limited supply of phone numbers which necessitates them being reassigned when they have not been used or topped up for a one-year period. [Scheme Member] waited a reasonable amount of time after disconnection before reallocating the number.
[Scheme Member] did agree to assist the Customer by attempting to telephone the new customer and enquire whether he/she would be willing to facilitate a change over. This was attempted on various days, including a weekend day, but without any response although the number remains connected to the [Scheme Member] network.
Conversely, if [Scheme Member] was to change the number without permission from the new leaseholder it would be in breach of its terms and conditions and the CCC and leave itself vulnerable to complaint from its new customer.
In conclusion, [Scheme Member] acted correctly when it disconnected the Customer’s number when it had not been topped up after 12 months.
Recommendation
The Customer’s complaint brought to light the increased risk of the use of telecommunication services to perpetrate scams, particularly with regard to the use of two-factor authentication. I consider it would be appropriate for [Scheme Member]’s final message to a Customer, prior to disconnection, to also reflect the fact that not only will the Customer be disconnected from the network but that the number may be allocated to a third party.
Summary
Mediation was attempted by way of [Scheme Member] attempting to contact it’s new customer and facilitating a number change. There was no reply to the number.
The Customer’s complaint is dismissed.
A recommendation has been made to add a further warning prior to disconnection and number reallocation.