Hotspotting – not upheld

Jurisdiction

The customer raised a number of issues in his complaint. However, it seems to revolve primarily around provision of data from the scheme member and his concerns that he has not had the uninterrupted data he believed he would receive.

The complaint also addresses matters about customer service. The customer alleges that they have not been able to make contact with the scheme member.  They also allege that the scheme member’s customer service has been rude, threatening, technically incompetent, abusive, and that the scheme member has tampered with phone call recordings, and cherry picked only recordings that suited their case.

The scheme member submits that the dispute should be excluded under exclusion 11 of the Terms of Reference below:

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.

TDR sees that there is a high level of conflict in this matter. However, the above customer service allegations do not fall within the above exclusion. The matter will proceed to mediation and adjudication where the merits of the customer’s case can be considered in respect of the scheme members customer service.

Dispute

1. The customer complains about the inability to hotspot their mobile phone to their television. They believe this is due to “dirty data” – ie, the data being insufficient to support the hotspot function.

Dispute outcome

2. TDR’s determination is that the customers complaint is not upheld.

Final determination

3. In making this determination TDR has considered the information provided by the customer and the provider 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.

4. The parties’ positions are such that there is no settlement of the dispute. 
5. The reasons for the decision, along with the background to the dispute and the positions of the parties, are set out below.
6. TDR provided the parties with an opportunity to comment on the proposed determination.  While the provider accepted the decision, the customer was very dissatisfied.

The dispute

7. The customer had a mobile data plan. The customer uses their phone to hotspot to the television at home, predominantly to watch videos.
8. The customer experienced a problem connecting via hotspot. They say the provider advised them to purchase a new phone, as the existing phone was too old to support the hotspotting function. The customer purchased a new phone from the provider, with a payment plan spread across 36 months.
9. In early 2023, the provider recommended that the customer take up a broadband plan. The customer agreed, and fibre broadband was installed. The customer reports that the technician advised them that two connection ports were not working but the third was.
10. In May 2023, the customer made a complaint to TDR that they were unable to hotspot from their mobile phone to the television. The matter was referred to the provider, who contacted the customer about it. The customer advised the provider of the technician’s comments (above), and the provider suggested this may be the cause of the problem. The customer agreed with this suggestion but did not want it investigated. The customer opted to return to an unlimited mobile data plan and cancel the broadband plan. The provider arranged this and waived the early termination fee and refunded a month of the broadband service fee.
11. In June 2023, the customer reported to their provider that they had been unable to hotspot from their mobile phone to the television since the previous evening.  The customer suggested that it was due to an “inscription” they had entered on the television and said they would try contacting the television manufacturer.
12. In July 2023, the customer contacted the provider again as the problem connecting the mobile to the television had persisted.  They advised their provider that television manufacturer had said it must be a problem with his data connection: that it was not powerful enough to hotspot to the television. The customer confirmed that they could access data on their phone without issue. The provider said this meant it was unlikely to be a data issue and offered to send the customer a link so they could test the speed in their area, but the customer appeared reluctant.
13. In August 2023, the customer said he could no longer connect his mobile to his television due to the providers’ “dirty data” and wanted the provider to refund the amount he had paid over the previous 18 months.
14. The provider contacted the customer and they confirmed that they could hotspot using their SIM card in another device.
15. The provider would not agree to refunding the charges but offered to waive three months of data plan charges. The parties could not agree on a resolution to the complaint.

Positions of the respective parties

The customer’s position.

16. The customer considers that the provider misled them and incorrectly advised them it was not to blame for the problem they experienced. The customer believes that poor data quality is the cause of the inability to hotspot from the mobile to the television.
17. The customer has also raised a concern about the provider’s recent response to their request for personal information and suggested that the provider deliberately did not provide information they had asked for.

The provider’s position.

18. The provider does not consider that it is responsible for the technical problems the customer has experienced, and says it attempted to assist the customer to resolve the problem but the customer declined its offers to investigate.
19. The provider also says that the customer has had use of its services, and it is not willing to waive the amount requested. However, it has offered to waive three months of the mobile plan.

Reasons for the decision

20. Based on the information available TDR do not have sufficient evidence to draw any conclusions about the cause of the customer’s problem hotspotting from their mobile to the television. TDR note the following:
    
    a. Mobile data is not an appropriate product for a home internet connection.
    
    b. There does not appear to be any problem with the customers hotspot function on the mobile device.
    
    c. The customer is on an unlimited max capacity mobile data plan and should experience no decrease of service.
    
    d. The television manufacturer told the customer that the data may not be powerful enough to hotspot to the television.
21. Given this, TDR cannot conclude that the provider is responsible for the customer being unable to hotspot from their mobile to the television.
22. The provider made reasonable efforts to assist the customer to address the problems they experienced in hotspotting. It has attempted to troubleshoot the cause, but the customer has been unwilling to co-operate with those efforts.
23. It was appropriate for the provider to recommend that the customer purchase a new device when their old one became unable to hotspot due to age, and to recommend a broadband connection for the customer’s home given mobile data is not intended to be substitute for a home internet connection.
24. TDR recommend that the customer reconsider the provider’s offer to waive three months of the data plan.
25. The customer suggested that the provider had deliberately excluded a call recording when responding to their request for personal information. As this issue has not been considered by the provider, TDR cannot assess it. In any event, the Office of the Privacy Commissioner would appear to be a more appropriate forum for such a concern.

Responses of the respective parties to the proposed determination

The customer’s response

26. The customer provided a lengthy response to the proposed determination. Much of the submission reiterated comments that were previously made.
27. The customer says that TDR has not properly understood the complaint because it has been characterised as a hotspotting issue when it is a data quality issue.
28. The customer says TDR has made factual errors in the assessment of the complaint, including:
    
    a. incorrectly saying that the old phone was replaced because it was too old to hotspot, while in fact the customer says they were told by the provider that they needed a 5G connection to get better reception.
    
    b. TDR said that the customer installed fibre broadband, but it was in fact wireless broadband.
29. The customer raises concerns about The Consumer Fair Trading Act and suggests that the provider was obliged to ensure they received services for the 36-month duration of the plan.
30. The customer emphasises that a significant portion of their complaint relates to the customer service issues they encountered while attempting to remedy the connection problem.
31. The customer says TDR have not properly reviewed this complaint and they ask for a “senior TDR supervisor” to reconsider it.

The provider’s response

32. The provider responded to the proposed determination confirming that its offer of a three-month waiver as a gesture of goodwill is still available.

Final determination outcome

33. TDR has carefully considered the customer’s submission but remain of the view that the complaint is not upheld. The customer has not presented any new evidence which would enable a change to the decision, and TDR have identified no wrongdoing by the provider. In an effort to address the customers outstanding concerns, TDR set out some further comments.
34. Having reviewed the description of the complaint, TDR is confident that it is correctly described. As a matter of fact, the customer was unable to hotspot onto the television from their mobile. The customer concluded this was due to a problem with their data connection, and this is recognised in my description of the complaint (see paragraphs 1, 13 and 16). But in TDR’s view, it has not been demonstrated that the data is the cause of the inability to hotspot. The customer themselves initially suggested a different cause, and was unwilling to undertake a basic troubleshooting measure to explore any data quality issues. If the cause is due to the extent of the provider’s network coverage, this is not a matter TDR can consider.
35. By reference to The Consumer Fair Trading Act, TDR assume the customer means either the Consumer Guarantees Act 1993 (GCA) or the Fair Trading Act 1986. Although TDR did not explicitly reference either Act in the proposed determination, TDR did consider the provider’s obligations under them in relation to its recommendations for products and services (see above at point 23).
36. TDR thanks the customer for the corrections and apologise for any confusion caused.  These corrections do not have any material bearing on the outcome of the complaint.
    
    a. The customer said they had been using their old phone to hotspot to the television for several years. 5G was introduced into New Zealand in late 2019, so the customer’s phone would not have been 5G compatible due to its age. TDR remain of the view that replacing the phone was an appropriate recommendation in the circumstances.
    
    b. The nature of the broadband connection is not relevant to the matters TDR assessed.
37. The customer purchased the phone with payments on 36-month instalments. It is standard industry practice for such arrangements to be subject to having a plan with the provider. This does not mean that all contractual obligations last 36 months. Either the provider or the customer can end the relationship at any time, and the warranty period is likely a shorter period.
38. TDR recognise that a significant portion of the customer’s complaint is about the service they received. Before formulating the proposed determination, TDR listened to the call recordings and read the customer’s email exchanges with the provider. TDR remain of the view that the provider made reasonable efforts to assist the customer with the problems they experienced.
39. TDR appreciate that the customer is dissatisfied with the outcome TDR have reached. There is no right of appeal to the final determination and TDR’s process has now come to an end. The customer is able to pursue their concerns through any other forum they consider appropriate.

Conclusion

40. In light of the above, TDRs final determination is that the customers complaint is not upheld.