20 Jul 2010—Determination 1

Determination

Issue
The Customer’s complaint relates to the difficulties experienced by him due to a delay in the establishment of telephone and broadband services, by the Scheme Member, when he moved to a new address. The Customer considers that he is entitled to compensation for costs he incurred and the consequent delays in service he then experienced.

Jurisdiction
The Scheme Member submits that the Customer’s claim for reimbursement of costs, for time spent resolving issues arising from the delays in service he experienced, fall outside the jurisdiction of the disputes procedure.  The costs are indirect and, as such, are excluded by the provisions of the Telecommunications Carriers’ Forum Customer Complaints Code from consideration as part of this adjudication.

Section 33.8 of the Code states that:
To the extent allowed by law, including the Fair Trading Act and the Consumer Guarantees Act, the Scheme Agent can not consider claims for compensation that are based on the following:
(a) loss of profits or indirect loss
(b) claims for pain and suffering
(c) loss of business and reputation
(d) inconvenience and mental distress; and
(e) costs involved in compiling and pursuing a claim through the TDRS process.

In this case, the Scheme Member submits that the compensation sought by the Customer, with regard to time spent resolving issues arising from the delays he was subject to before his telephone and broadband connections were operational, are claims for compensation for indirect costs and, as such, are excluded from consideration by the specific provisions of clause 33.

The Customer argues that as a result of the failure to “manage” the connection of telephone and internet at his new address, and as a result of the difficulties arising from delay in connection, he was required to travel to a WiFi wireless access point to get broadband internet access for himself and his family. He seeks compensation of $9600.00 in this regard and argues that these costs were not indirect costs, but rather direct costs resulting from the failure of the Scheme Member to provide services which resulted in him having to “project manage” the connection.

Section 33.8(a) of the Code clearly excludes consideration of claims for compensation for indirect costs from the jurisdiction of this disputes procedure. In the circumstances applying here, the Customer’s claim for payment for time spent in what he calls the project management of the issue clearly relates to indirect costs. The Customer was not requested or contracted by the Scheme Member to do what he did. Whilst it is understood that the delay of service caused issues which required the Customer to spend time that he felt he should not have had to spend addressing the problem, it is clear that the provisions of clause 33 do not allow for compensation for indirect loss. Claims for payment for loss of time expended dealing with issues relating to the delayed connection and travelling to a WiFi access point fall into that category. That part of the Customer’s complaint and consequent claim for compensation is, therefore, excluded from the scope of this Determination by the specific provisions of the Code.

The Customer’s claims for incidental expenses connected to that travel are also excluded from jurisdiction by the provisions of clause 33.8. They are also excluded from consideration by the contractual arrangements entered into by the parties, with regard to the provision of Residential Line Services to the Customer, and I will refer to this matter later in this determination.

Background
The issues between the parties arose as a result of the Customer’s change of residence in January 2009, and his arrangement with the Scheme Member for broadband and telephone services to be delivered to his new residence. When he moved to his new residence there was no telephone service. He requested technical assistance from the Scheme Member. Problems arose regarding the provision of that assistance and the visit of a technician to his residence.

A cable fault was then discovered which took some days to rectify. The Customer’s request for broadband services, after the cable fault was resolved, was not actioned due to a dispute regarding non-payment.

The Customer was then, told by a Scheme Member technician, that his newly allocated number was not suitable for broadband and that he would need a number change.

A further series of difficulties occurred before the connection was satisfactorily established.

As a result the Customer has, in addition to the issues regarding loss of time referred to above, been required to notify that change of telephone number to a number of contacts and agencies and to modify stationery.

The matter has proceeded through the level 3 Conciliation stage of the disputes procedure without resolution. The Conciliator’s Assessment of Dispute and Recommendations were provided to the parties as part of the Level 3 process. The matter remains unresolved.

Positions of the parties
The Customer’s position:
The Customer’s position is that he contacted the Scheme Member, in November 2008, and was assured that telephone and broadband services were available in the area he was moving to. He was told at that time that two or three days’ notice would be sufficient to transfer his telephone service and that the broadband connection should be ordered separately.

At the end of January 2009, the Customer telephoned the Scheme Member and asked for services to be connected. At that time he was allocated a telephone number which he accepted after asking whether the number would operate through the residential area exchange, and being assured there would be no problem with broadband service on that number.

The Customer states that the difficulties which arose with the connection were exacerbated by the response of the Scheme Member’s staff to the numerous attempts he and his partner made to get technical assistance. This, he states, resulted in the Scheme Member’s customer service employee, who was spoken to, refusing to accept that a technician had not visited their address despite being repeatedly being told this had not happened. In his view, that person had effectively called him and his partner liars.

The Customer has detailed the time and travel then involved to access a WiFi site, while service was unavailable and to actually get delivery of service. He argues that he is entitled to compensation for this in addition to the credits already offered by the Scheme Member.

The Customer also seeks compensation for costs incurred in association with the necessary reprinting of business cards and toll calls made to inform contacts about the second telephone number allocated at his new residence.

The Scheme Member’s position:
The Scheme Member states that it accepts that the telephone number first allocated to the Customer was incorrectly allocated and that this required the allocation of a second number. The Customer was kept informed of progress in resolving this issue, and has subsequently been offered an apology and a goodwill credit of $43.69 in respect of that incorrect allocation.

With regard to the delay in connecting broadband, the Scheme Member’s position is that that the Customer has been offered an apology and goodwill credits of $113.30 ($59.61 and $53.69) in respect of the delays in connecting his landline and broadband.

The broadband was, in fact, connected on 10 March 2009 but a major network outage caused by a cable fault, which affected many customers, meant that the Customer could not log on to broadband until 25 March 2009.

With regard to the compensation sought by the Customer, the Scheme Member argues that these sums are generally excluded from jurisdiction by the provisions of the Code and that it had never requested that the Customer provide any form of “management" services to it in respect of these issues.

The Scheme Member also argues that it has provided appropriate “goodwill credits” under the terms of Residential Terms and Conditions applying to the Customer, who is a residential customer, and that it is not obliged to provide compensation other than that required under those contractual terms and conditions.

It further submits that the Customer has not provided any substantive accounting for sums claimed as compensation.

Applicable Law/Code
The jurisdictional issue raised, by the Customer’s claim for loss of time, concerns the application of clause 33.8 of the Code and has been dealt with under that heading.

The Consumer Guarantees Act provides, under the terms of section 30, that services offered and accepted must be provided in a reasonable time and that compensation may be required where they are not. The Act also provides that parties may contractually exclude its requirements. The Customer is a residential customer of the Scheme Member. He is covered by the Terms and Conditions applying to residential customers. Clause 16 of those Residential Customers Terms and Conditions specifically excludes all liability other than that set down in those Terms and Conditions as the provider’s liability with regard to the provision of new connections.

There is, therefore, an agreed Contractual limitation of liability in place. The provisions of section 30 of the Consumer Guarantees Act may not be applied to extend liability beyond that contractually stipulated by the parties and need not be considered in that context.

Response to the Draft Determination
The Scheme Member has responded to the Draft Determination by indicating that it believed the credits it had already provided to the Customer were sufficient to discharge it from the liabilities established by the Draft Determination. The Scheme Member further submits that because the Customer has to date failed, over an extended period, to produce documentation to support his claim that he had incurred printing costs and costs associated with calling contacts to inform them of the change to a second number, that he should be now required to produce these within a stipulated timeframe or forgo the claims made.

The Customer has not responded to the Draft Determination. TDR staff have, at my request, reminded the Customer of the requirement to respond within 5 working days.  I have delayed the completion of this final determination several working days beyond that deadline as the Customer had indicated to staff that he might wish to provide comment on the Draft. That has not occurred. The Customer has not indicated that submission or comment is coming or requested an extension of time.  My responsibility to the service standards applying pursuant to the Code means that I must proceed to finalise this matter.

Final Determination
The file provided indicates that the Customer did experience difficulties related to the provision of telephone and broadband services. In this regard, what occurred represented a provision of services which was not in accordance with the service standards described in the Code. Nor was it, in my view, in accordance with the Scheme Member's contractual responsibilities to the Customer. The Customer was provided with a telephone number which was not compatible with his needs. He had to be allocated a second number. That took time, resulted in loss of service and, he states, resulted in him incurring direct costs with regard to the reprinting of business cards and making toll calls to contacts to advise of the change to the second allocated number.

The lengthy delay in the establishment of his broadband service, and the cable fault and service issues surrounding that delay also, in my view, represent a failure by the Scheme Member to provide service levels of a kind envisaged by both the provisions of the Code and the contractual arrangement applying to this Customer.

It follows that the Customer may reasonably expect to be compensated for those failures either pursuant to terms of his contract with the Scheme Member or the provisions of the Code. This raises issues as to, firstly, what liability the Scheme Member has under the terms of its contractual arrangements with the Customer and responsibilities under the Code and, secondly, whether the quantum of compensation is set contractually or can be established as part of the determination.

As previously discussed, I consider that the provisions of the Code prevent consideration of the Customer’s claim for compensation for loss of his own time spent dealing with these issues and travelling to achieve a WiFi connection, as these represent an indirect loss.  There is, within the Residential Terms and Conditions binding the Customer, a general exclusion from liability other than that specified in those terms and conditions.

The Customer argues that the loss of his time is not an indirect loss. However it is my view that in this context loss of time, no matter how inconvenient, cannot be seen as other than an indirect consequence of the failure to provide service. Considering it otherwise, in circumstances such as those applying here, would render clause 33.8(a) meaningless. Particularly so where compensation for loss of time is sought by a residential customer.

Clause 33.8(a) refers to loss of profits and other indirect loss. This could not be interpreted to mean that, on the one hand, section 33.8(a) excludes claims for loss of earning through loss of business profit from consideration, but on the other, does not exclude claims in respect of the cost of time spent dealing with related issues and therefore not spent working. Both, in my view, are indirect costs. To hold otherwise would fly in the face of the wording and, pursuant to the wording, the intent of clause 33.8.

Given this and that the Customer is a residential customer who has had no request from the Scheme Member to, as he puts it, “manage the connection”, time spent in resolving this issue, including time spent travelling, is not compensable.

The Customer also seeks compensation for costs associated with reprinting business cards and making toll calls to inform clients of the second (replacement) phone number allocated to his new residence. In the circumstances those costs, where they are proven, are direct costs attributable to the failure of the Scheme Member to comply with service standards and should be reimbursed by the Scheme Member.

My understanding of the file material is that the failures of the broadband service occurred with regard to the delay in the establishment of the service and again after it was connected. Those failures were not remedied as required by the Residential Customer’s Terms and Conditions. The Customer is entitled to credit under those Terms and Conditions.  The failure to establish an appropriate telephone connection is also compensable.

The file indicates that the Scheme Member has already provided the Customer with credits, which I understand from the file material he has accepted.  These are described by the Scheme Member as “goodwill credits”; however, I agree with the Conciliator's observation that credits provided under the relevant agreed Terms and Conditions are a contractual liability rather than a goodwill payment.

Given the failure of service described by the file material, the Scheme Member was obliged to compensate the Customer for the circumstances arising from:

• the allocation of an original non viable number and the delay experienced before the subsequent allocation of a second number.

• the delay to the customer’s broadband connection resulting from the requirement to make that change.

• the delay to service caused by the cable fault which then prevented his broadband connection providing services.

The Scheme Member’s Residential Terms and Conditions require that failures of service of this nature allow accounts to be credited with line rental or services.

The file indicates that credits of line rental have already been made to the Customer and accepted by him. The Scheme Member’s evidence is that this crediting of the relevant monthly line rentals for the months concerned has occurred and discharges liability.

The Scheme Member's response to my Draft Determination again establishes and confirms that the sums already provided to the Customer as line rental credits, set off the liability it may have under the Residential Terms and Conditions and established by the findings of my Draft Determination. In the absence of any indication from the Customer (or any other source) that these payments have not been made, I consider that the Scheme Member has established that it has already made sufficient payments to the Customer to fully discharge the liabilities referred to under point 1 of the “Findings” established by the Draft Determination.

With regard to the Customer’s claim for compensation for additional printing of stationery and toll calls to contacts, provided these costs can be proven and quantified, they should be reimbursed by the Scheme Member. There is nothing in the file material by way of documentation supporting the Customer’s claims. If these are business related costs, it seems reasonable to expect that he has retained the relevant paperwork and should be able to provide a receipt for printing and a telephone account or accounts.

My Draft Determination provided for reimbursement of those costs, contingent on production of supporting proof of costs actually incurred. The quantum of payment is to be established and confirmed on production of proven costs.  The Customer has not as yet responded to that requirement. Given the amount of time he has already had to do so, it is my view that this is not a matter which should be allowed to continue to run on as an unresolved issue for a further extended period beyond the date of this Final Determination.

Accordingly, it is my decision that the Customer must produce the relevant proof of cost within 28 days of the date of this Determination. Should he not do so then the liability accruing to the Scheme Member with regard to printing and telecommunication costs under the terms of this Determination will lapse.

Findings
1. The Customer is to receive one months rental cost as a credit to his telephone account and two months rental cost as credits to his internet account. The line rental credit he has received to date is available to be set off against that liability. The Customer has received credits of two months’ line rental at $59.61 per month and one month’s line rental at $58.44 per month. Those payments fully set off the Scheme Member’s liability.

2. The Customer is to be paid for proven costs incurred in reprinting business cards and toll calls to contacts consequent on the allocation of a replacement phone number to him. The Customer is to provide the Scheme Member, within 28 days of the date of this Final Determination, the appropriate documentation necessary to satisfactorily establish the amounts of costs so incurred. The Scheme Member’s liability to reimburse will lapse if the documentation is not provided within that timeframe.

3. The parties are reserved leave, should disputation arise within those 28 days, as to whether documentation so provided is satisfactory proof of cost to refer the matter back to me for adjudication.

Remedies
1. With regard to Finding 1, the remedy has already been provided by the Scheme Member.

2. With regard to Finding 2, the Scheme Member is hereby ordered to pay the Customer reimbursing payments in respect of the costs claimed on production of satisfactory proof of cost, by the Customer, within 28 days of the date of this Determination.

3. Should disputation as to proof of cost occur within that period, the parties are reserved leave to refer that matter back to me for resolution.