Based on the submissions from the parties involved this complaint was found within TDR jurisdiction. The TDR Scheme Adjudicator identified:
“This is within jurisdiction despite [Wholesale Scheme Member] comment. [Scheme Member] is the retail scheme member and is included in this complaint. This is about customer service in respect of both [Wholesale Scheme Member] and [Scheme Member] and there are a complex set of facts that is suitable for mediation/adjudication. There would be little point in putting this back to [Scheme Member] for investigation as suggested by [Wholesale Scheme Member]. [Scheme Member] has already advised that it has only been able to provide very limited assistance on this complaint due to being unable to resolve the matter to the customer’s satisfaction as all work would need to be carried out by [Wholesale Scheme Member].
“There may be aspects that TDR may not be able to consider as outlined by [Wholesale Scheme Member] who note that “land access and other property matters” are dealt with by another complaint organisation. However, any mediation/adjudication can account for this.”
Position of the respective parties
[CUSTOMER] has contacted TDR to assist in facilitating his request to have his neighbour’s internet fibre cable removed from its attachment to his property.
[CUSTOMER] says that he has been unable to resolve this issue for almost two years. He did not grant permission for use of his property, nor did he permit nails to be used to secure the cable beneath his roof area and finds the entire installation unsightly. He is seeking removal of the cable and reinstatement of the resulting holes, or payment of $150 per month for use of his property or to receive fibre unlimited broadband free of charge.
[Scheme Member]’s involvement with [CUSTOMER]’s request to remove the fibre cable did not begin until 8 June 2021. This was when [CUSTOMER] lodged his complaint with [Scheme Member] after he was notified by TDR that to have his complaint dealt with in this forum he would need to direct it through his retail service provider.
[Scheme Member] made two enquiries with [Wholesale Scheme Member] to request further information and was advised that [Wholesale Scheme Member] were investigating the situation and would get back to it in due course.
On notification that [Wholesale Scheme Member] had deadlocked the complaint on 23 June 2021, [Scheme Member] also deadlocked the complaint. [Scheme Member] had not previously engaged with [CUSTOMER] on the issue and were therefore unable to provide any further assistance.
[Wholesale Scheme Member]
[Wholesale Scheme Member] say that it has gone to great lengths to provide alternative solutions to rectify [CUSTOMER]’s complaint.
[Wholesale Scheme Member] agree that appropriate consent was not gained from [CUSTOMER] when connecting the neighbour’s fibre service. The fibre cable was laid in a like-for-like position following the old copper cable. It has looked at alternative means of connecting the neighbour with fibre and says that the neighbour has refused these alternative options. [Wholesale Scheme Member] believes it is ‘stuck in the middle’ and cannot disconnect the neighbour without consent as it has an obligation to provide broadband services to each residential premise.
Issue for adjudication
The issue for adjudication is:
Can [Wholesale Scheme Member] remove and reroute [CUSTOMER]’s neighbour’s fibre cable without receiving consent from the neighbour?
The decision is based on:
- The written and verbal evidence provided by both parties
- New Zealand law
- The New Zealand Telecommunications Forum Customer Complaints Code (CCC)
- The New Zealand Telecommunications Forum Code for the Installation of Fibre Telecommunication Services (TCF Code)
The scope of the CCC enables TDR to deal with complaints between customers and scheme members with whom they have a billing relationship. Section 17.5 states:
“……Customers should always refer Complaints to the Scheme Member that they have a Billing Relationship with in respect of the service or product under complaint.”
The subject of the complaint is not related to what [CUSTOMER] contracts [Scheme Member] for. This places the dispute outside of TDR’s jurisdiction and in this instance only a recommendation has been made.
The property owned by [CUSTOMER] and his neighbour is registered as a Unit Title, the common property being an adjoining wall. There is no shared access by way of a driveway.
[Wholesale Scheme Member] acknowledges that it did not have a statutory right of access to use [CUSTOMER]’s property to allow a fibre cable to extend to the neighbouring adjoined property. The proposed installation at [CUSTOMER]’s property was a [REDACTED] which required consent. When consent was declined the job ought to have been cancelled. The cable was installed during [CUSTOMER]’s absence in late 2019 and he complained to [Wholesale Scheme Member] about it shortly afterwards.
[Wholesale Scheme Member] carried out several site visits to attempt to resolve the issue. I am advised that the neighbour has been offered at least two other methods to provide a fibre cable, other than using [CUSTOMER]’s premises, but has declined to accept any change. I am not privy to the reason for this and have no authority to contact the neighbour to attempt to mediate a settlement.
[Wholesale Scheme Member] is a signatory to the TCF Code that sets out the minimum requirements a retail service provider and a network operator should follow when a new fibre fixed line access service is being installed at a property. One of the key principles of the TCF Code is set out in 7.1.6:
“When installing fibre Telecommunication Services at a Customer’s property, the Network Operator must ensure that the installation is performed in the manner agreed with Customer. It should not unreasonably impact on a person’s enjoyment of the property, or worsen an existing problem with the property, and take into consideration the visual impact of both the internal and external installation in the context of that property. The workmanship must be completed to an acceptable installation standard”
While this is one of the key principles as outlined in the TCF Code, this refers to “customers” and that is defined by having a billing relationship. [CUSTOMER] does have a billing relationship with [Scheme Member] but this is not in relationship to the matter of his neighbour’s fibre cable. He is not the customer of [Wholesale Scheme Member] and therefore this Code cannot apply.
It is fair and reasonable for [CUSTOMER] to expect to have his property returned to him for his exclusive use and for any damage caused by the installation of nails, used for fixing the cable, to be rectified to a reasonable standard.
Returning the property to [CUSTOMER]’s exclusive use does not deny access for [CUSTOMER]’s neighbour to receive fibre. There are at least two other options available to the neighbour which would not affect [CUSTOMER]. It is also common sense from the standpoint of future repair work requiring access to [CUSTOMER]’s property for which he does not give consent.
The requirements of the Telecommunications Act to enable people to benefit from fibre must be balanced against the impact the installation has on a neighbouring property particularly when there are other means of delivering the fibre cable. [CUSTOMER] ought not to be denied a remedy when his property was used without the required statutory right of access.
[Scheme Member] is a party to this complaint but has only been able to provide limited assistance. [CUSTOMER]’s main avenue in seeking a remedy over the past 18 months has been directly with [Wholesale Scheme Member] and any required work could only be concluded by [Wholesale Scheme Member].
The matter we are dealing with is corrective work. However, the corrective work in this instance relates to a fibre cable providing a service to a third party. The third party has not made a complaint to TDR and has obtained the service through a retail service provider other than [Scheme Member].
[CUSTOMER]’s complaint cannot be upheld in this jurisdiction for the reasons outlined above.
[Wholesale Scheme Member] is recommended to seek its own method of redress by whatever appropriate means are available to it.
[Scheme Member] has no liability in this matter.