Melbourne-based internet provider Planet ISP Pty Ltd (Planet ISP) has refunded over $5000 to a customer whose phone was stolen in South Africa in August 2012 but was subsequently used to make 92 unauthorised international calls.
The Telecommunications Industry Ombudsman (TIO) issued a Determination in May 2014 requiring the company to refund $5,115.26 for international call charges incurred and arising from these unauthorised calls. The TIO noted the customer reported the theft to Planet ISP on the day the phone was stolen, that Planet ISP did not act on the customer’s request and subsequently debited the charges from the customer’s bank account. Finally, Planet ISP did not make the payment to the customer as mandated by the Determination.
Only when the Australian Communications and Media Authority issued a remedial direction to Planet ISP in December 2014 for its failure to comply with the TIO Scheme—and then indicated its intention to start legal proceedings—has Planet ISP now refunded the money.
‘The ACMA notes that the provider has now finally refunded payments made by the consumer for charges that should not have been incurred in the first place. However, it is disappointing that this outcome has been so unnecessarily drawn out' said ACMA Chairman, Chris Chapman.
'It is unacceptable for an internet or phone provider to disregard the decisions of the TIO and regard themselves as outside of the system,’ he added. ‘The TIO scheme is a cornerstone of the consumer protections regime for telecommunications consumers. This case illustrates yet again that the ACMA will take all appropriate action to uphold the integrity of the scheme and make sure providers comply with TIO Determinations.’
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Media Release 18/2015 16 April
The TIO Scheme
The TIO is a free and independent alternative dispute resolution scheme for small business and residential consumers in Australia with unresolved complaints about their telephone or internet services. The TIO is independent of industry, the government and consumer organisations.
Where a consumer has a complaint, they should first contact their service provider, which are required to provide information to consumers on how they can make a complaint. Complaint handling processes must be accessible to all customers, including people with disabilities and those from non-English-speaking backgrounds.
If the consumer is dissatisfied with the outcome of their complaint, the service provider must advise them of their further options. Where appropriate, consumers are entitled to escalate their complaint within the provider organisation. If they are still dissatisfied they can contact the TIO.
Members of the TIO scheme must comply with the scheme, which means they agree to comply with the TIO Terms of Reference and the TIO Constitution. For example, a requirement under the Terms of Reference is that where the TIO issues a determination to resolve a complaint, the member must comply with the determination.
The ACMA has the power under the Telecommunications Act 1997 to issue remedial directions to carriage service providers that contravene service provider rules. This includes a failure to comply with a TIO determination.
The ACMA's approach to compliance and enforcement employs a graduated use of the regulatory measures necessary to achieve the desired result. In 2013 the Federal Court found that Bytecard Pty Ltd had failed to comply with TIO determinations, awarding $75,000 in civil penalties against the company and $37,500 against its director.
The TIO determination
The TIO found the customer sent a message to Planet ISP via its customer portal on 22 August 2012, to request cancellation of the SIM following the theft of a mobile phone in South Africa. From 28 August 2012 the phone was used to make numerous calls to numbers in Africa. As it was incumbent upon Planet ISP to act on the customer’s advice, the TIO was satisfied that Planet ISP had no entitlement to charge for calls made after 22 August 2012. However, the relevant charges were debited from the customer’s bank account. Accordingly, the TIO concluded a fair and reasonable outcome would be for Planet ISP to repay the customer $5,115.26 in charges incurred after 22 August 2012.