Jurisdiction 

This is essentially a billing dispute. In June 2024 the Customer contacted the Scheme Member advising that they believed they had disconnected their broadband service with them in May 2022. The customer wishes to be paid back all of the broadband fees charged since that time plus to be compensated for their time traying to resolve the dispute. 

The Scheme Member submits that the Terms of Reference exclusions apply as follows: 

10. to the extent allowed by law, a claim or claims for compensation based on indirect loss (including loss of profits), punitive damages, pain or suffering, loss of reputation, inconvenience, humiliation, mental distress, and costs involved in compiling or pursuing a Complaint. 

I agree that this exclusion applies. TDR are not permitted to consider compensation for the customer’s time, loss of work, and petrol costs in coming into the Scheme Member’s office. This however does not exclude the entire dispute it just limits what TDR can award. 

The Scheme Member further submits that the dispute should be excluded pursuant to: 

11. which are frivolous or vexatious or trivial, or the Scheme Agent is reasonably satisfied that the Complainant has refused to engage with the relevant Scheme Member or otherwise acted in bad faith in relation to attempting to resolve the matter; 

The Scheme Member submits that the initial billing dispute itself does not meet this standard. However, they consider that the customer’s attempt to come into their office against their advice and then seek costs for doing so reflects that this is a frivolous complaint. The issue of the customer’s request for indirect costs has been dealt with above and is not within TDR’s jurisdiction to consider. 

The threshold for exclusion 11 is high and I consider that this is not met. There is a genuine dispute and the merit of the same shall be considered at mediation and adjudication.

Dispute outcome

  1. TDR determination is that the Customer’s complaint is upheld. 

Dispute 

  1. TDR received a complaint from the Customer about the service received from the Scheme Member.
  2. The complaint is that the Scheme Member has failed to refund the full costs incurred by the Customer for a broadband connection internet service they believed had been disconnected.
  3. The Customer advised he called the Scheme Member to cancel the broadband, but this request was not actioned and as a result they paid for broadband for a period of 25 months.
  4. The Scheme Member has offered to refund the Customer 50% of the total amount paid. 

Final determination

  1. In making this determination TDR have considered the information provided by the Customer and the scheme member and
  • Fairness in all the circumstances
  • Any relevant legal requirements
  • The New Zealand Telecommunications Forum Customer Code effective 1 July 2023 (the “Customer Care Code”) and its service standards (the Scheme Member’s Customer Care Policy), including position statements; and
  • Any other relevant telecommunications code.
  1. Having discussed this with the Customer and the scheme member TDR is satisfied that there is no settlement of the dispute. Therefore, TDR make the following determination:

Positions of the respective parties

The Customer’s position

  1. In and around May 2022, the Customer moved property.
  2. The Customer advised that at the time they left the property they contacted all the utility providers, including the Scheme Member to disconnect the services. 
  3. The Customer did not check any invoices from the Scheme Member after May 2022, and discovered by chance that they were still paying for the broadband at the property.
  4. The Customer called the Scheme Member to immediately cancel the broadband and seek a refund for the charges incurred. 
  5. The Customer said they called 4 or 5 times to follow up on the request for the refund. 
  6. During June 2024, the scheme member sent a text to the Customer advising that the refund had not been actioned as it needed to be “escalated to the billing department to be investigated.” 
  7. The Scheme Member confirmed it had disconnected the broadband. 
  8. The Customer confirmed that they had completed the “cancellation and refund form.”
  9. The Customer received a text advising:

“Please note that cases like this take time to process, meaning they will look into your bill first, check the usage and the dates you requested your broadband to be disconnected and when this is all done, they will then start the refund process which takes 3-5 working days for the funds to be available on your bank account”.

  1. Following the text the Customer could not get hold of the Scheme Member.
  2. The Customer went to the Scheme Member’s office to discuss the claim for the broadband charges. The Customer asked the Scheme Member to check for their phone call in May 2022. 
  3. The Scheme Member advised the Customer that they do not keep phone recordings as far back as two years. The Customer believed the Scheme Member advised him that the Scheme Member had ‘no’ records at all from the preceding 25 months.
  4. The Customer forwarded an email to the Scheme Member from his Property Manager confirming that the Customer had vacated the property during May 2022.
  5. The Scheme Member responded:

“Thanks for the email, unfortunately we are going to need a formal signed document from the previous landlord or rental agency saying that you left the property on this date. 

Unfortunately, we will not be able to get the credit approved from an email on its own, it will need to be a formal letterhead in this case. 

Being a large amount of credit and service charges to us to keep the fibre active, we need formal confirmation from the landlord / property manager to be able to get this credit amount released.”

  1. The Customer emailed the signed letter from the Property Manager.
  2. Having heard nothing further from the Scheme Member the Customer travelled back to the Scheme Member’s office.  The Customer handed the Scheme Member the signed letter from the Property Manager. The Scheme Member advised the Customer that there had been a mistake in advising the full amount of the refund and made a goodwill offer to credit the account by 50% of the total sum. 
  3. The Customer is seeking the full refund amount.

Scheme Member’s position

  1. During June 2024, the Customer called the Scheme Member to notify them that the broadband at the property should have been disconnected in May 2022. They requested the broadband be disconnected and asked for a refund of the broadband charges incurred over the intervening period. They claimed it was the Scheme Member’s error that had resulted in the ongoing charge.
  2. The Customer called twice more during June 2024.
  3. The broadband was disconnected in June 2024 as per the Customer’s request. 
  4. The Scheme Member could find no evidence that the Customer had called in May 2022 or any other time prior to June 2024, requesting the broadband be disconnected. There were no notes on the client account or any online requests for the service to be cancelled. 
  5. Due to the absence of evidence the Scheme Member felt it could not offer a refund as according to its records “we had no grounds to disconnect the service, and the charges were valid.”
  6. The Scheme Member knew the Customer was ‘unhappy’ with this decision and visited the office in June 2024 to “continue the dispute.” 
  7. The Scheme Member disagrees that they made an offer to credit the full sum in the email dated June 2024 and instead the email meant:

“That before they could consider offering the customer a refund, they would need a formal letterhead from the landlord/real estate manager, confirming the customer had moved out on the said date being May, 2022.”

  1. During July 2024, the Scheme Member met with the Customer and received the formal letter.
  2. The Scheme Member stated that they “relayed incorrect information” to the Customer.  They ‘indicated’ the Scheme Member notes it would not have provided an offer to Customer when:
  • It had no record of the Customer’s request to disconnect the broadband.
  • The Customer had not contacted it to dispute the 24 bills sent in the intervening period.
  • The Customer failed in his obligation to cancel the service as per the Scheme Member’s General Terms and Conditions as follows; 

“It is up to you to let us know if you want to cancel your Plan or Service with us.”

  • The Scheme Member would be in breach if it had disconnected the service without instructions.
  • The Scheme Member has incurred rental costs for use of the connection provided by a wholesaler.
  1. The Scheme Member offered the goodwill settlement in recognition of the poor experience the Customer had due to the “incorrect information” and to facilitate a resolution. 

Reasons for the decision

  1. The arguments put forth by the Scheme Member in point 31 are irrelevant because, the Scheme Member made an offer of settlement which was accepted. The email is not expressing a view that the Scheme Member is considering an offer as it states that the credit will be ‘approved’ and ‘released’ on the provision of a formal letter from the Property Manager.
  2. The offer was conditional on the provision of a signed letter, which the Customer provided to accept the offer. 
  3. The Scheme Member later acknowledged that the offer was a ‘mistake’.  The offer may have been made in error and outside the standard processes, however the Scheme Member is bound by the actions of its employee. 
  4. The Customer Care Code and the Scheme Member’s Customer Care Policy.
  5. Under the Customer Care Code, the Scheme Member agrees to:

“10.2.1 Treating Consumers with respect and in a fair and courteous manner at all times;” 

  1. Under the Scheme Member Customer Care Policy it states

“We will treat you with respect and fairly.”

  1. The Scheme Member has not acted fairly by rescinding the offer after it was accepted and therefore have breached 10.2.1. 

Response to proposed decision

  1. The Customer agreed with the proposed decision.
  2. The Scheme Member provided no feedback. 

Future actions

  1. The Scheme Member must credit the full sum to the Customer’s account.