Jurisdiction

The Customer’s complaint deals with the reallocation of their telephone number. The Customer alleges that the scheme member’s communication was poor and that they did not receive notice that their pre-pay number would be cancelled when inactive. This is essentially a complaint about customer service. The scheme member notes that it is not able to reinstate the Customer’s number but does not refer to any relevant exclusions pursuant to the ‘Terms of Reference’. The scheme member’s obligations in terms of the principles outlined in the TOR, in particular clause 10.2 includes (but is not limited to):

• Treating Consumers with respect, and in a fair and courteous manner at all times,

• Working in a collaborative and constructive manner when engaging with Consumers,

• Making available relevant terms and conditions for the provision of a service that set out the key rights and obligations of both the Provider and the Customer,

• Providing service information that is accurate, up-to-date and easily understood. Service information that a Provider will commit to disclosing will include:

a) Plan pricing information,

b) Any additional relevant fees/charges relating to a service,

c) Any limitations to a service, taking into account the limitations that are likely to be important to the Customer (if relevant), such as limitations in the event of a power outage; and

d) Principal factors that may affect the performance of a service.

Therefore, this is suitable for mediation/adjudication.

Dispute

1.1         The Customer has been a prepay customer of the scheme member for several years. The Customer had the same phone number until February 2021, when it was deactivated and subsequently reallocated.

1.2         For the period of January 2020 to December 2022 the Customer did not use their phone number and did not top up their account. The Customer was living overseas at the time. In December 2022 on their return to New Zealand after the Covid period made travel difficult, the Customer noted that their SIM did not work in their phone. It subsequently transpired that the scheme member deactivated the account in February 2021 due to 12 months of inactivity.

1.3         The Customer would like their old phone number back and wants this to be reallocated.

Final determination

In making this Final determination TDR have considered the information provided by the Customer and scheme member and:

•              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 with the Customer and with the scheme member, it was clear that this matter would not resolve by agreement. TDR therefore make the following Final determination:

Dispute outcome

Not upheld – for the reasons given below, the scheme members Terms and Conditions are published and are fair. The scheme member acted appropriately and reasonably in their application of their Terms and Conditions. To put it another way, the scheme member did not owe a duty to the Customer beyond the period in which the Customer’s number was held open. Even if the scheme member had owed the Customer such a duty, they did not act inappropriately (in breach of any duty) by reassigning the number in question.

Positions of the respective parties

Customer’s position

1.4         The Customer lives in New Zealand but travels for work. The Customer was prevented from travelling to New Zealand during the Covid border lock downs and only noticed that their SIM card did not work in their phone when they returned to New Zealand.

1.5         The Customer tops up their prepay balance when they are in the country by visiting a dairy or other retail outlet to buy prepay credit which they then load onto their phone. The Customer is currently out of the country.

1.6         The Customer expressed how useful their old phone number is for them, not only because other people know that phone number but also that businesses have that phone number on record.

1.7         The Customer did not receive messages warning them that their account would be deactivated.

1.8         The Customer accepts that they failed to keep their account updated as required by the scheme member’s T&Cs but says that the scheme member also shares some fault for not warning them of account deactivation.

1.9         The Customer also claims that they were told, when speaking with an agent, that they could have the number returned if they still had the SIM card.

Scheme member’s position

1.10       The scheme member says that their T&Cs are published on their website and are reasonable.

1.11       The scheme member also says that customers are warned by text message that their accounts will be deactivated, and phone numbers reassigned if any prepay balance is not topped up at least once every 12 months. The scheme member does not keep copies of texts, but they are sent automatically during the 12-month period. Being in another country with a nil prepay balance would not impact information texts being received.

1.12       The scheme member submitted that the Customer’s account was not charged any roaming charges following their January 2020 top-up. This suggests that the Customer’s phone was either in flight mode to avoid roaming charges (and therefore unable to receive text messages), or the SIM card was removed from the phone.

1.13       Customers can top-up online, so geographically being unable to being in New Zealand does not impact a customer’s ability to top up their account.

1.14       When numbers are deallocated, they sit in quarantine for at least 3 months before going back into the available number pool. In the Customer’s case the number went back into the Prepay pool (so will have been added to a card and sent out to a retailer). This would have made tracking down a pre-pay SIM card extremely difficult as it would entail not only asking all retail stores to manually search through their stock, but also dairy owners, supermarkets, and various other 3rd party retailers.

1.15       The scheme member says that with the Customer’s old number, it is active with another user and has been since September 2021.

1.16       The scheme member also says that the Customer only raised a complaint with them in July 2023, more than 3 years after the Customer’s account was deactivated and their number reallocated.

1.17       The scheme member does not want to be part of the Customer’s suggested plan to purchase the phone number back from a current user.

Customer’s response to proposed decision

1.18       The Customer says that the scheme member had their home address and email address and there was no communication to either address during the period January 2020 to February 2021, to warn the Customer that their account would be deactivated and phone number reassigned.

1.19       The Customer further submitted that they could not top up their phone from January 2020 because of the travel ban to New Zealand during 2020. The Customer has not responded to comments from the scheme member regarding online top-up.

1.20       The Customer provided evidence of texts received from their bank during 2020 to show that their phone was operational and able to receive text messages from New Zealand.

1.21       The Customer also submits that because their prepay top-up of January 2020 only expired in December 2020, the scheme member only waited 2 months from that balance expiring until their account was deactivated.

1.22       Finally, the Customer provided submissions to say that he, along with New Zealand-based family, have made calls to their old phone number and it has never rung, instead going directly to an automated message system managed by the scheme member.

Scheme members response to proposed decision

1.23       The scheme member submitted that the Customer misunderstood the timeframes. Rather than there being two timers (360 days from date of top-up for credit to expire, and then a subsequent 360 days from this point until the provider can deactivate the number). The scheme members T&Cs provide for deactivation 360 after the last top-up.

1.24       The scheme member also challenges the Customer’s conclusion regarding phone calls to the number in question. They submit several explanations for a phone call going through to an automated service (all of which they submit are legitimate uses of a prepay SIM):

a)            the person who owns the SIM doesn’t answer calls from blocked numbers or numbers they don’t recognise;

b)            the person has the SIM in an emergency phone. A number of customers have a prepay SIM in an emergency phone they keep in a vehicle or at a bach or similar; or

c)            the SIM could be in a non-calling device – a Tablet, for example, or a GPS device, or a Medical Alarm, or one of countless other IoT type devices that run off a SIM but wouldn’t answer a call.

Reasons for the decision

1.25       TDR started with a consideration of the relevant contractual provisions. TDR concluded that the scheme members T&Cs are published and are clear and reasonable and their application of those T&Cs was also reasonable.

[REDACTED].

1.26       Those T&Cs make it clear that an account becomes inactive 360 days “since your last top-up.” This is in line with the scheme members actual actions to deactivate the Customer’s account.

1.27       The T&Cs also make it clear that the scheme member cannot reactivate a number once it has been lost due to inactivity.

1.28       TDR find Pre-pay SIM cards purchased from third party retailers are often purchased by tourists who want phone services while they are in the country. It is therefore reasonable for phone operators to recycle unused phone numbers for reuse after a period of time, to recapture phone numbers used for a limited period of time.

1.29       Once a phone number is applied to a new SIM card (following the period of quarantine) and is sent out to third party retailers as part of a pre-pay package, it is not reasonable to expect the phone provider to ask retailers to go through stock to find that particular phone number.

1.30       TDR accept the Customer’s submission that they never received texts warning them that their account would be deactivated if they didn’t top up their account. Nevertheless, it is not reasonable to expect a prepay account and phone number to remain unchanged for nearly three years (from January 2020 to December 2022 when the Customer returned to New Zealand) without top-up or other action.

1.31       It is not clear what happened from February 2021 (when the Customer’s account was deactivated) or December 2022 (when the Customer says they returned to New Zealand) to the Customer raising the complaint with the scheme member.

1.32       As noted in the proposed decision, TDR called the phone number in question and got through to an answerphone.

1.33       TDR accept the scheme member’s subsequent submissions that there may be many reasons for calls to go directly through to an answer service.

1.34       TDR also accept the scheme member’s position that they do not want to be involved with customers purchasing phone numbers and the administrative burden that would put on them.

1.35       Simply put, the scheme member does not owe customers more than their T&Cs provide, that is a 12-month period in which to top up to keep any account open. The Customer had the opportunity to either contact the scheme member to ask for the account to be kept open, or to top up the account online. It is not reasonable to imply anything further or to put further obligations onto the scheme member. The Customer’s claim is therefore dismissed.

1.36       Regardless of the merits of the Customer’s claims, TDR does not have jurisdiction or authority to order any remedy that they are seeking that would lead to them getting that phone number back. For the avoidance of doubt, even if TDR did have that authority or jurisdiction, TDR would have refused to exercise it, as the Customer’s claims are without merit.

Future actions

1.37       As TDR have found that there is no breach of the telecommunication act and Terms of Reference, I do not order future actions to be performed.