20 Jul 2010—Determination 3

Determination

Issue
The issues, broadly stated, concern the Customer’s complaints about the information he was given by the Scheme Member when he purchased a roaming capable phone, and the subsequent service he received from the Scheme Member when he experienced significant network coverage problems when attempting to use that phone internationally.

Jurisdiction
This is a complaint which, in part, concerns itself with allegations of failure of overseas network coverage. Clause 20.1(f) of the Telecommunications Carriers Forum Customer Complaints Code (the Code) specifically excludes from the scope of the Code any grievance regarding “the scope of network coverage”.

It follows that the Customer’s complaints, regarding failures of network coverage he experienced whilst attempting to use his Roaming capable phone overseas, fall outside of the jurisdiction of the complaints procedure and, therefore, of this adjudication.

A further jurisdictional issue was raised by the Scheme Member. This concerns the Scheme Member’s view that the Code excludes the review of advertising material and that complaints in this regard should be referred to the Advertising Standards Authority. Clause 20 of the Code (Exclusions from Scope) refers to those matters which (subject to service standards and clause 23.4 of the Code) cannot be the subjects of complaint under the Code.

Clause 20.1(i) states that a grievance is not a complaint “if it relates to the content of any Yellow Pages advertising service additional to that provided under a standard residential or business fixed line telecommunications contract. Complaints about advertising should be referred to the Advertising Standards Authority”. The Scheme Member’s position (as advised at Level 3) was that advertising material was not reviewable under the Code.

Examination of clause 20.1(i) indicates that it specifically relates to the content of any Yellow Pages advertising service additional to that provided under a standard residential or business fixed line contract. The effect of the provision is, therefore, to specifically restrict the prohibition in clause 20.1(i) to Yellow Pages advertising.

The final sentence in clause 20.1(i), which states that complaints about advertising should be referred to the Advertising Standards Authority, must be read as part of the provisions of clause 20.1(i) as a whole and, therefore, in the context of its specific reference to the content of Yellow Pages advertising. When the clause is read as a whole it is clear that its application is specific not general. It does not refer, and cannot be read to refer, to advertising generally and cannot be read as providing an exclusion for advertising other than that specifically referred to which is Yellow Pages advertising.

In the absence of a provision excluding examination of the content of all advertising from the scope of the Complaints procedure, the provisions of clause 20.1(i) cannot be read as excluding this Customer’s grievance regarding promotional material received by him from the Scope of the Complaints procedure.

It follows that jurisdiction exists to examine the Customer’s complaint that he was provided with insufficient and incorrect promotional material and that the product provided by the Scheme Member did not provide the service indicated in that promotional material.

Background
The Customer purchased a mobile phone from the Scheme Member. He considers that the information he was given as to its international roaming capacity was inadequate and/or incorrect because he subsequently experienced severe problems with the international roaming service. His attempts to have those issues resolved were apparently unsuccessful and, in his view, unsatisfactory.

Positions of the parties
The Customer’s position:
The file indicates that the Customer considers he was not given full or correct information with regard to the phone’s roaming ability, when he purchased it, and that the promotional material was misleading. He complains he had difficulties with lack of network coverage while overseas, that this was both a hardware and network problem, and that the failure of the Scheme Member’s customer service to rectify the problem has resulted in his unnecessarily incurring costs. These costs, he said, arose from time spent endeavouring, and failing, to rectify the problem and the consequent necessity of transferring to an alternate provider.  He seeks monetary compensation in respect of these costs.

The Scheme Member’s position:
The Scheme Member’s position is that the claim is outside the scope of the Code because it is a network coverage problem not a hardware problem. The Scheme Member states that it had no control over the overseas roaming issues raised by the Customer and, in any event, issues of network coverage were excluded by the terms of clause 20.1(f) of the Code.

The Scheme Member’s position with regard to the Customer’s complaints about the accuracy of promotional material provided to him was that complaints about advertising were excluded from the scope of the complaints procedure by the provisions of clause 20.1(i) of the Code.

Applicable law/Code
Given that the matters before me relate only to complaints regarding the nature of the Scheme Member’s promotional material and do not require me to resolve issues regarding acceptable quality, fitness for a particular purpose or misleading conduct with regard to goods or services, the legislation applying in these areas is not relevant to this dispute and need not be applied to its facts.

There are issues raised which fall within the general purview of The Telecommunication Forum Customer Complaints Code; specifically clauses 7, 9 and 20 of the Code.

Draft Determination
I received no further submission or material from the parties following the issue of my Draft Determination. Given that there are no additional substantive issues that must be addressed, the terms of my Draft determination are hereby confirmed as a Final Determination.

Final Determination
I have considered all of the material provided by the parties and all notes on file. Issues arising with regard to jurisdiction are substantively addressed earlier in this determination under the head ‘Jurisdiction’. In that regard I find that the Customer’s complaint is essentially a complaint about failures in network coverage experienced by him when attempting to use the Roaming capable phone provided by the Scheme Member overseas. Complaints about Network Coverage are (in the absence of any evidence that the hardware involved is defective) not issues which can be addressed, because they are specifically excluded from the scope of this Complaint Handling Procedure by the application of clause 20.1(f) of the Code.

In this case the file discloses no evidence that the telephone provided to the Customer by the Scheme Member was defective. That being so the matter is one of network coverage. As previously stated under the terms of the Code, no jurisdiction exists under which a complaint regarding network coverage may be addressed.

With regard to the Customer’s complaints about the promotional material provided by the Scheme Member, in respect of the telephone and services sold to him, the Customer alleges that this material was misleading. I have examined the promotional material on his file in that context. It advises the Customer that the handset would roam to “around 140 countries” and advises him that “the Scheme Member’s terms, conditions and charges apply”.

Those terms and conditions that relate to roaming are set out in the documentation under the heading Roaming – Terms and Conditions. Under the subheading Service, the following appears emphasised in bold type:
“Because you will be roaming on an overseas network, the Scheme Member cannot guarantee and will not be liable for the quality and availability of the network, services or coverage while you are using the Service. All customers using the service will be subject to the terms and conditions applying to the use of mobile phones on that overseas network”.

Under the heading Additional Terms the following statement (again in bold type) appears inter alia:
“You are deemed to have accepted these terms when you begin roaming…”

It is clear that the Customer has been notified of and, when he commenced using the phone, accepted these terms and conditions. The language used is plain and easily understood. As written, these Roaming Terms and Conditions absolve the Scheme Member from liability for failures in the provision of network service by overseas networks, over which it had no control. That was, I find, made absolutely clear to the Customer in writing. The provisions relating to service state unequivocally that the Scheme Member cannot guarantee service because the network was an overseas network.

The promotional material thus not only gives no guarantee of service but rather explicitly indicates that the Scheme Member as the provider of the telephone ‘cannot’ guarantee service where roaming on overseas networks occurs.

I therefore find that the promotional material was not misleading and that the Customer must, given that he was provided with this material, be deemed to have entered into the arrangement in the full knowledge that the Scheme Member could not guarantee network coverage issues on overseas networks. Had the Scheme Member given such a guarantee in the knowledge that it had no control over the provision of network services for its customers roaming overseas, then the Customer's complaint may have been well founded. However, no such undertaking is to be found in the Scheme Member’s promotional material which in fact explicitly, and specifically, indicates that it cannot guarantee overseas network service.

Given this I find no breach of the provisions of clause 7 of the Code relating to Service Standards generally has occurred. Nor has any specific breach relating to clause 9 of the Code, as it relates to Scheme Member’s terms and conditions, occurred in this instance.

For these reasons the Customer’s complaint is not upheld.

Remedies
No orders applying any form of remedy are made in respect of the Customer’s complaints.

Outcome
My findings are as follows:
1. The Customer’s complaint regarding failures of overseas network services is a network coverage issue and as such can not be addressed because it is excluded from the scope of this complaints procedure by clause 20.1(f) of the Telecommunication Carriers Forum Customers Complaints Code. 

2. For the reasons given herein, the Scheme Member’s submission that clause 20.1(g) of the Code must be applied to exclude all complaints about advertising from this complaints procedure in favour of referral to the Advertising Complaints Authority, is not upheld. I find that the exclusion from the scope of the complaints procedure provided by clause 20.1(g) applies only to Yellow Pages advertising.

3. The Customer’s complaint that the Scheme Member’s promotional material was misleading is not supported by the evidence provided to me regarding this matter. I find no specific and identifiable breach of the Code by the Scheme Member in this regard.

4. For these reasons no finding with regard to remedies is required and no award of remedies made.