This is a complaint that TDR can consider, and it is within jurisdiction of the Customer Complaints Code (the Code). It is about customer service, but mainly communication. It appears that both parties have a different view of conversation to discuss signing up to the Provider. The Provider have supplied two exceptions under the Code:
• 18.1.24. if the Scheme Agent is reasonably satisfied that the Customer has refused to engage with the Scheme Member or otherwise acted in bad faith in relation to attempting to resolve the Complaint.
• 18.1.5. if it relates to the level of charges Scheme Members choose to set;
Neither of these would seem to fit. The fact that the customer did not accept the Provider solution is not a refusal to engage or acting in bad faith. It is unclear as to how the other exclusion fits given this is about communication, verification of identity and what the customer believes he had signed up for, or not signed up for. Therefore, there would seem to be no exclusions under the Code.
The dispute between the Customer and the Provider relates to the transfer of the Customer’s services from the previous Provider to the current Provider following the Customer’s phone call to the current Provider (the Provider).
2. Dispute outcome
The Customer’s complaint is upheld.
3. Proposed determination
In making this determination I have considered the information provided by the Customer and the Provider. I will also consider the following:
• Fairness in all the circumstances
• Any relevant legal requirements
• The Code and its service standards, including position statements; and
• Any other relevant telecommunications code.
Having discussed this dispute with the Customer and the Provider on 09 June 2023, I am satisfied that there is no settlement of the dispute. Therefore, I make the following determination:
4. The Dispute
The dispute in this instance arose after the Customer initiated contact with the Provider.
I have summarised the key developments below:
4.1 The Customer was an existing customer of the previous Provider. On 01 May 2023, the Customer contacted the current Provider’s broadband sales line to enquire about transferring his broadband services to the Provider and was connected with the Provider’s agent. I have outlined the important discussion topics below:
a) The Customer provided his first and last name, date of birth, physical address, email address, phone number and his preferred fibre plan. The Customer and the Sales Assistant proceeded to discuss modem compatibility and determine that best configuration for the Customer’s proposed services with the Provider.
b) The Customer and the Sales Assistant proceeded to discuss how the Customer’s broadband service will be transferred to the Provider. The Customer requested for the Sales Assistant to call the Customer in 24 hours so that the Customer had the opportunity to discuss the transfer with the previous Provider. The Sales Assistant declined this request but advised the Customer that she would defer the proposed transfer by one week to 08 May 2023. Importantly, the Sales Assistant specified that in the meantime, the Customer would not be bound by the Provider’s terms and conditions until the transfer occurred and the Customer could contact the Provider by phone or email to cancel the transfer at any time prior to 08 May 2023. The Customer appeared to accept the offer, however shortly afterwards advised that “you can put this [inaudible] through, but it’s not affirmative from me yet”. The Sales Assistant responded to the Customer by stating “correct, so you’re not locked into any terms or conditions or anything like that until we actually get your services set up and you become activated with us so that’s why I am going to push it out to next Monday so we have this week to settle everything and then we can go from there, okay?”. The Customer responded to the Sales Assistant by saying “Okay”.
c) The Customer proceeded to enquire about a $100 Prezzie card sign up bonus, to which the Sales Assistant responded “correct, yes. We will send you an email with the Prezzie card information once your services have been officially activated with us…”. The Customer responded by saying “Okay, got you. Thank you very much”.
d) The Sales Assistant proceeded to enquire regarding the Customer’s account number with the previous Provider so that the Provider can “let them know that we’re taking over the fibre connection itself” to which the Customer responds by saying “could you please put it on hold because I don’t really have that at the moment, sorry about that”. During the statement “could you please put it on hold…”, both the Customer and the Sales Assistant were speaking simultaneously and it is not clear if the Sales Assistant understood the Customer’s statement.
e) The Sales Assistant then summarises the proposed arrangement by stating “So we’ll get that one all under way. Like I said, I’ve scheduled this one in for Monday the 8th of May so that way, of course, it gives you time today and tomorrow to get in touch with your other provider and let them know and then we can get that one all sorted…”. The Customer responds affirmatively throughout the Sales Assistant’s summary of the proposed arrangement.
4.2 During the phone call, the Sales Assistant sent the Customer an Order Summary email which states “Thanks for joining the Provider’s broadband. We’re stoked to have you on board!” along with providing the Customer with an account number, the plan details (including costs) and the requested connection date of 08 May 2023. At the bottom of the Order Summary email, there is a statement regarding termination which I have copied below:
“If you signed up via telesales or door-to-door and happen to change your mind, you have five working days from this email to cancel by replying to this email or calling us. Our physical address is [redacted] and our phone number is [redacted].”
4.3 On 02 May 2023, the Customer again contacted the Provider’s broadband sales line and was connected with the Provider’s agent. I have outlined the important discussion topics below:
a) The Customer advised that he wished to cancel the proposed transfer per (4.1) above due to a large early termination fee, to which the Provider’s agent advised the Customer that he would need to speak with the Broadband team and not the sales team.
b) Prior to being transferred by the Provider’s agent, the Customer advised the Provider’s agent that he had not signed up for a broadband plan yet. The Provider’s agent responded by advising the Customer that if he has not signed up for a broadband plan that he would have nothing to cancel. The Customer accepted this answer and terminated the call.
4.4 No further action was taken by the Provider or the Customer until 08 May 2023 when the transfer was actioned by the Provider as proposed at (4.1) above. The Customer lodged a complaint with the Telecommunications Dispute Resolution service (“TDR”) on 08 May 2023. The Customer’s complaint was deadlocked on 11 May 2023 and was deemed to be within TDR’s jurisdiction on 31 May 2023.
5. Positions of the respective parties
The Customer’s position
The Customer’s formal submission contains the following documents:
• A written submission dated 12 May 2023; and
• A written submission dated 17 May 2023; and
• A written submission dated 26 May 2023; and
• A phone call recording dated 1 May 2023; and
• A phone call recording dated 2 May 2023.
I will summarise the Customer’s position regarding the dispute below:
5.1 The Customer considers that the Provider has transferred the Customer without his authorisation due to the following reasons:
a) The Customer did not provide his correct given name and instead provided his preferred name, [Redacted]; and
b) The Customer did not authorise the transfer of his broadband services from the previous Provider to the Provider; and
c) The Customer contacted the Provider to advise that he wished to cancel the proposed transfer of his broadband services from the previous Provider to the Provider.
The Provider’s position
The Provider’s formal submission contains the following documents:
• A written submission dated 26 May 2023; and
• An undated Order Summary email addressed to the Customer; and
• A phone call recording dated 1 May 2023; and
• A phone call recording dated 2 May 2023.
I will summarise the Provider’s position regarding the dispute below:
5.2 The Provider considers that the Customer legitimately authorised the transfer of his broadband services from the previous Provider to the Provider and that any costs associated with the transfer are attributable to the Customer.
6. Reasons for the decision
6.1 Prior to issuing this determination, I attempted to assist with the resolution of this matter through a mutually satisfactory, negotiated settlement. Due to the nature of the dispute, attempts to facilitate a mutually satisfactory, negotiated settlement were unsuccessful.
6.2 In order for the Customer’s complaint to be upheld, I must first consider whether the Provider had a legitimate basis to transfer the Customer’s broadband services from the previous Provider to the Provider. In order to make this determination, it must first be determined that the Customer’s interactions and correspondence with the Provider constitute a legally binding agreement.
6.3 The necessary elements of a legally binding contract are as follows:
a) Offer; and
b) Acceptance; and
c) Certainty as to terms; and
d) Consideration; and
e) Intention to be legally bound.
6.4 Without yet considering whether the discrepancy regarding the Customer’s first name is impactful, items a, c and d have clearly been satisfied throughout the Customer’s interactions and correspondence with the Provider. The Order Summary email clearly reflects the Customer’s discussion with the Sales Assistant and outlines the specific services which the Provider was offering the Customer and at what cost. Therefore, in order for the Customer’s complaint to be upheld, I must determine the following:
a) That the Customer did not legitimately accept the Provider’s offer; or
b) That the Customer did not intend to be legally bound by the proposed transfer of the Customer’s broadband services from the previous Provider to the Provider; or
c) That the discrepancy regarding the Customer’s first name would render the proposed transfer as invalid.
6.5 I will now consider these points in turn.
Did the Customer accept the Provider’s offer?
6.6 Upon review of the phone call dated 01 May 2023 and the Order Summary email, it is clear that the Provider’s offer included a deferred agreement date of 08 May 2023. It is evident that the mutual understanding reached by the Customer and the Sales Assistant was that the Customer’s acceptance of the offer was assumed until the Customer advised the Provider otherwise. In other words, the onus was on the Customer to cancel the proposed transfer prior to 08 May 2023. Therefore, so long as the Customer advised the Provider prior to 08 May 2023 that he no longer wished to proceed with the proposed transfer, it could not be determined that the Customer had accepted the Provider’s offer.
6.7 Further to (6.6) above, it is evident that the Customer contacted the Provider on 02 May 2023 to advise that he wished to cancel the proposed transfer, however the Customer was speaking with the Provider’s agent from the Provider’s sales department who could not action the requested cancellation. Per (4.3) above, it is evident that the Customer was not transferred to the Broadband team as would be required to cancel the Customer’s proposed termination and subsequent fibre plan. This was due to the Customer’s statements to the Provider’s agent and the Customer’s confusion regarding the status of the proposed termination.
6.8 Considering that the Customer was provided with the Order Summary email and acknowledged receipt of the email during the phone call dated 01 May 2023, the Customer, on receipt of the email, ought to have known that an account had been established and that the proposed transfer would be actioned on 08 May 2023 without the Customer’s cancellation. Therefore, the information provided by the Customer to the Provider’s agent was incorrect and therefore the Provider has not erred by not transferring the Customer to the Provider’s Broadband team in order to confirm the cancellation.
6.9 As the Customer did not sufficiently cancel the proposed transfer when he contacted the Provider, it is hereby determined that the Customer accepted the Provider’s offer of the proposed transfer and subsequent fibre plan.
Did the Customer intend to be legally bound to the proposed transfer?
6.10 Having reviewed the phone call dated 01 May 2023, it is evident that there are at least two occasions, at (4.1(b)) and (4.1(d)) above respectively, where the Customer advised that he was not ready to go ahead with the proposed transfer. It has been explained that the reason for the Customer’s hesitancy was due to the fact that he had not yet raised the proposed transfer with the previous Provider and wished to do so prior to authorising the transfer.
6.11 When considering the entire phone call dated 01 May 2023, in particular the exchange outlined at (4.1(e)) above, it is clear that the Customer accepted that the Sales Assistant’s deferment of the transfer date was sufficient for the Customer to contact the previous Provider and determine if he wished to cancel the proposed transfer.
6.12 The Customer’s intention can be inferred from his conduct. The Customer contacted the Provider’s sales department and provided all of the details that would be required in order to sign up for a fibre plan such as the one that was arranged. Further, the phone call dated 01 May 2023 is clearly concluded with a mutual understanding regarding the proposed transfer and with the Customer acknowledging receipt of the Order Summary email. The Customer’s conduct certainly infers an intention to be legally bound subject to any change of mind following the Customer’s contact with the previous Provider, which was factored into the proposed transfer and subsequent fibre plan. It is hereby determined that the Customer intended to be legally bound to the proposed transfer and subsequent fibre plan.
Does the Customer’s first name render the proposed transfer as invalid?
6.13 The Customer has advised that [Redacted] is not his legal first name, rather it is his preferred name to use. The Customer submits that the Provider did not confirm or verify the Customer’s identity or that the information he had provided was true and correct.
6.14 Confirmation that information provided by a customer is true and correct is a requirement under the Section E of the New Zealand Telecommunications Forum (“TCF”) Customer Transfer Code. I have copied the relevant provisions of Section E below:
E. END CUSTOMER AUTHORISATION
17. Obtaining End Customer Authorisation
17.1 The Gaining RSP bears sole responsibility for ensuring that prior to commencing a Transfer it has a valid and complete End Customer Authorisation.
17.2 An End Customer Authorisation must contain, at a minimum, the following:
17.2.7 Confirmation from the End Customer that the information provided by the End Customer to the Gaining RSP is true and correct.
6.15 Having reviewed the call recordings provided in the formal submissions of both parties, it is evident that the Customer was not expressly asked to confirm that the information that he had provided was true and correct. Therefore, based on the provisions of the Customer Transfer Code, the Provider did not obtain a valid and complete End Customer Authorisation.
6.16 Further to (6.14) above, it follows that if a valid and complete End Customer Authorisation was not received, the Provider has effectively actioned an unauthorised transfer of the Customer’s services from the previous Provider to the Provider. Had this unauthorised transfer not taken place, the Customer would not have incurred an early termination fee from the previous Provider. The amount that the Customer incurred has not been provided in the Customer’s formal submission.
7. Proposed Decision
7.1 I hereby determine that the Customer’s complaint is upheld and that the Provider is to credit the Customer for the cost of the early termination fee incurred from the previous Provider as a result of the unauthorised transfer.
8. Final Decision
8.1 The Customer and the Provider have been provided with an opportunity to respond to the proposed decision. The Customer has not provided a response to the proposed decision. The Provider has responded, advising that the proposed decision is accepted. There is no reason why the proposed decision should be amended or overturned and therefore the Customer’s complaint is upheld.
8.2 As the Customer has not provided the amount of the previous Provider’s early termination fee, the Provider is not required to refund the costs of the early termination fee until the Customer has provided proof of the early termination fee to the Provider directly. This payment shall be refunded to the customer and not restricted to the Customer’s account and service payments.