What are the principal consumer protection regulations that apply specifically to telecoms services?
Technology (second edition)
Aside from Law No. 8 of 1999 regarding Consumer Protection (April 20, 1999), which provides the general framework for consumer protection, there are no consumer protection regulations that apply specifically to telecoms services.
The principal consumer protection regulations specific to telecom services are set out in the Telecom Competition Code. Some examples are set out below:
(a) licensee must disclose to end users the price, terms and conditions of the service (including a free-trial service);
(b) licensee must provide procedures to contest charges in a service agreement;
(c) licensee must not charge for disproportionate early termination fees;
(d) where the licensee seeks to terminate the service agreement due a breach by an end user, the licensee must provide the end user with advance notice and reasonable opportunity to remedy the breach; and
(e) at the end of a free trial service the licensee must not charge for such services unless the licensee has notified the end user the date on which the free trial ends and the end user has agreed to continue the services.
The Dutch Telecommunications Act provides a number of specific obligations relating to consumers, including the following:
- conditions relating to term, renewal and termination of consumer contracts;
- requirements to include certain terms in consumer contracts;
- requirements to make certain information available to customers, such as a description of the services offered, the quality of services and standard tariffs;
- access to certain information numbers and the national alarm number;
- providing number portability;
- restrictions on specific sales and marketing activities.
In addition to specific telecoms regulations, provisions of general consumer law also apply such as rules concerning unfair contract terms.
The Telecom Consumer Protection Regulation, approved by Anatel Resolution No. 632/2014, is the specific regulation that applies to users of telecom services. Such regulation is enforced in addition to the Consumer Protection Code (Law No. 8,078/1990), which is the general Brazilian law concerning consumer protection.
The main rights afforded to all telecommunication service users are: (i) enjoyment of the service, in accordance with quality standards established by regulation and the services agreements; (ii) choice of the provider and the service plan; (iii) non- discriminatory treatment pursuant to access and service use conditions; (iv) previous knowledge about all charges and material conditions or limitations of the service offering; (v) communications’ inviolability and confidentiality; (vi) non-suspension of the service, except in circumstances allowed by the regulations; (vii) conﬁdentiality of invoices and on the use of users’ data; (viii) efficient and prompt responses to complaints; (ix) compensation for damages caused by the violation of rights; (x) re-establishment of all rights related to the services provision, upon payment of outstanding debts; (xi) not be subject of tie-in sales; (xii) termination of service agreements at any time; and (xiii) not be charged for any values unrelated to the provision of the telecommunications service without previous and express consent.
The Law on Electronic Communication Networks and Services provides a number of specific obligations relating to consumers, including the following:
- The requirement to include certain minimum terms in consumer contracts
- Requirements on the transparency of the price and tariffs, the charges due on the termination of the contract and the standard terms and conditions
- Requirements to make certain information available to customers, such as a description of the services offered, the quality of the services and standard tariffs
In addition to specific telecom regulations, provisions of general consumer law also apply, such as rules concerning unfair contract terms.
GEO 111/2011 lays down the consumer protection regulations applicable for the sector of electronic communications.
Contracts concluded by consumers for the provision of access and interconnection to public electronic communications networks and services may be made on an initial period of up to 24 months. The offers and contracts designed for consumers must be transparent and offer the consumer sufficient information. For this reason, contracts concluded with consumers must contain the following minimum information:
- the identification data of the provider;
- the services provided, including in particular, if access to emergency services and caller location is provided, information with regard to the procedures for measuring traffic, the service quality levels offered, as well as the term for the initial connection;
- the prices and tariffs for each product or service covered by the contract, the way in which they are applied, as well as the means by which updated information on the tariffs for the provision of the electronic communications services and of the maintenance and repair services may be obtained;
- the duration of the contract, the conditions for renewal and termination of the contract, as well as the conditions under which service suspension operates;
- the applicable compensations and procedures in case the contracted service quality levels or other contractual clauses are not fulfilled;
- the means of initiating procedures for the settlement of disputes;
- the type of action that may be taken in reaction to security or integrity incidents or threats and vulnerabilities.
In addition, GEO 111/2011 contains certain provisions with regard to the conclusion of distance contracts. These provisions offer the end users with legal personality a favourable position in the sector of electronic communications.
Decision no. 158/2015 of the President of ANCOM regarding information obligations to end-users (“Decision 158/2015”) is aimed at ensuring transparency concerning the relationships between telecom operators and end-users.
The said decision establishes the information that electronic communications services providers have to make known to users (e.g. information to be included in invoices, information regarding commercial terms, network coverages, etc.) and the various means whereby such information must be transmitted/published (website, client care, sales department). It also encompasses the terms and formalities for unilateral changes to contract conditions, information to be provided to the ANCOM, online archive of past commercial terms, etc.
Decision 158/2015 concerns Internet services providers and re-broadcasting providers in addition to telephony providers, who have such obligations since 2009. It thus applies to both providers of public communications networks and to providers of electronic communications services intended for the public.
The following parts of regulations are applicable specifically to telecom consumers:
- Regulation (EU) 2016/2286, of 15th December 2016,, sets out detailed rules on the application of fair use policy and on the methodology for assessing the sustainability of the abolition of retail roaming surcharges and on the application that must be submitted by a roaming provider for the purposes of that assessment.
- Regulation (EU) 2015/2120, of 25th November 2015, sets out measures concerning open internet access and amends Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 regarding roaming on public mobile communications networks within the Union.
- General Act 9/2014, of 9th May 2014, on Telecommunications.
- Act 25/2007, of 18th October, on electronic communications and public communication networks data storage.
- Royal Decree 899/2009, of 22nd Mau 2009, approves the telecommunication services users' rights.
- Royal Decree 424/2005, of 15th April 2005, modified by Royal Decree 776/2006, approves the regulation on electronic communications services, universal service and users' protection.
- Ministerial Order IET/2733/2015, of 11th December 3015, assigns public numbering resources to the additional pricing services provided by telephone calls and establishes their conditions of use.
- Ministerial Order IET/1090/2014, of 16th June 2014 , regulates the conditions relating to the quality of the electronic communications services.
- Ministerial Order ITC/3237/2008, of 11thNovember 2008,sets out the use of public numbering resources for the provision of multimedia and text messages.
- Ministerial Order ITC/1030/2007, of 12th April 2007, regulates the resolution procedure of disputes between final users and electronic communications services operators and operators' customer services.
- Ministerial Order PRE/531/2007, of 5th March2007, approves the conditions for guaranteeing the affordability of the applicable offers to the universal services.
- Ministerial Order PRE/361/2002, of 14th February 2002 , modified by Ministerial Order PRE/2410/2004, is on telecommunication and pricing services users' rights.
The TRAI in exercise of its powers has framed various regulations to protect the consumer interests, which include:
- Mobile Number Portability (MNP) across telecom circles in India;
- Curbing of Unsolicited Commercial Communication (UCC);
- Seamless migration across post-paid and pre-paid platforms;
- Billing accuracy;
- Safeguards against hike in tariﬀ;
- Ease of activation and deactivation of Value Added Services (VAS);
- Strict adherence to Quality of Service (QoS) standards by operators.
The Telecom Consumers Complaint Redressal Regulations, 2012 notiﬁed by the TRAI goes on to create an institutional mechanism to handle consumer complaints in the sector.
Further, India also has an umbrella legislation for ensuring consumer protection, the Consumer Protection Act, 1986, the beneﬁts of which also extend to telecom consumers.
Operators must take all necessary measures concerning the establishment and enforcement of contracts signed in electronic environments and provides that the ICTA is authorised to determine the principles and procedures concerning such contracts. Additionally, operators are obliged to provide an original copy of the telecommunication subscription contract to the subscriber either in physical or electronic environments, in accordance with the establishment of the relevant contract. Operators are obliged to provide some information such as their trade name, address, service details, general terms and conditions for the service provision, on their website. Also, subscription contracts need to have minimum content as provided under the customer regulation.
On 28 October 2017, ICTA published the Regulation on Consumer Rights in the Electronic Communications Sector, specifying consumers' rights and principles and procedures to be followed by operators. Articles 7(1) and 7(9) of the regulation, allowing subscription contracts to be made in electronic environments, entered into force as of the publication date.
In chapter 5 of the Electronic Communications Act, the rights of consumers purchasing electronic communication services can be found. There are also provisions explaining the duties of the operators.
Operators that offer their services to consumers must have their prices and general terms accessible for the consumers. It is sufficient to have them uploaded to the website of the company. Furthermore, the agreement between the consumer and the operator must contain clear and easily accessible details about e.g. the lowest level of quality offered, the measures taken to measure and control the traffic with the purpose of avoiding overloads of the net and how the measures can affect the quality of the services, and delivery time. An agreement between a consumer and an operator may not have a longer curing period than 24 months.
After the curing period, an operator that has provided services in combination with terminal devices must, at the request of the consumer, remove operating locks without charge or delay.
The TCA aims to ensure pricing transparency and the protection of users of communications services from abuse associated with value-added services. Hence, providers of telecommunications services must guarantee the transparency of prices for subscribers. Services of TSPs are also within the scope of the Price Notification Ordinance of 11 December 1978, as amended, meaning that the overall price of a telecommunication service must be given in Swiss francs and that price lists and catalogues must be readily accessible. The TCA also aims to protect users of communications services from unfair mass advertising: Spamming is prohibited under the Unfair Competition Act of 1 April 2007, as amended. The sender of mass advertisements submitted by means of telecommunications (such as e-mail, SMS, fax or automated telephone systems, but not physical mail) must seek the data subject’s prior consent to such advertisement. TSPs must take measures against unfair mass advertisement and protect their customers from receiving it. For this purpose, they may intervene in user traffic and disconnect customers from the telecommunication network who send or forward mass advertising.
The Telecommunication Regulation (2016 Revision) is the principal consumer protection regulation for the telecoms services. Chapter 3 of the regulation provides standards in providing telecommunication services. Users of telecommunication services referred by the regulation may include both individual consumers and enterprises.
Under the CMA, all Network Facilities Providers, Network Services Providers, Applications Service Providers and Content Applications Service Providers (save for those who are not required to have individual or class licenses or are exempted from licence requirements) are required to deal reasonably with consumers and adequately address consumer complaints, on pain of a fine not exceeding RM20,000 or to imprisonment for a term not exceeding 6 months or to both upon conviction.
In 2003, the MCMC issued the General Consumer Code of Practice for the Communications and Multimedia Industry in Malaysia (“Code”) which forms the principal consumer protection regulation for telecommunication services in Malaysia. The Code binds all service providers licensed under the CMA insofar as their licensed activities are concerned as well as members of the consumer forum established under the CMA.
The Code aims to provide model procedures for reasonably meeting consumer requirements, the handling of customer complaints and disputes, the creation of alternative dispute resolution and procedures for compensation for customers in the event the Code is breached, and the protection of consumer information, amongst others. The Code also seeks to achieve the relevant national policy objectives of the CMA, provide benchmarks for the communications and multimedia service providers for the benefit of consumers, promote a high level of consumer confidence in the delivery of services from the industry, and provide guidelines for self-regulation among industry players.
Consumers of telecommunications services would also enjoy protection vide the Consumer Protection Act 1999 and the Consumer Protection (Electronic Trade Transactions) Regulations 2012 which impose disclosure requirements pertaining to the goods and services offered by a business and the identification details of that business, and prohibiting misleading practices and representations by businesses to consumers.
In addition to the general provisions of the Consumer Code, an electronic communications operator is subject to specific requirements, in particular in terms of:
- real time information on its offering and tariffs, on the consequences of unlawful use of its services by the customer (e.g. in respect of copyright infringement), on the ways to protect individual security and personal data, on number portability – without this list being exhaustive;
- insertion in consumer agreements of certain provisions, such as on indemnification in case of failure to maintain the proposed quality of service; and limitations to the possibility to require a minimum term of service;
- performance of its service agreements, for instance with the prohibition of additional access charges for communications to an after-sale service or a helpdesk.
Section 43a TKG determines which information operators have to make available to the consumers in the contract in an explicit, comprehensive and easily accessible form. The minimum contractual information shall include, inter alia, information on all restrictions on the access and use of services and applications, the minimum level of service quality offered, as well as information on all procedures set up by the company for the measurement and control of data traffic. Moreover already at the conclusion of contract, the operator is obliged to inform about the necessary steps for a possible change of supplier according to section 46 TKG. The maximum contract term is limited to 24 months pursuant to section 43b TKG. Additionally section 44 TKG provides for customers friendly regulations in case of damage or cease and desist claim of the customer. The interests of disabled end-users are considered in section 45 TKG. The availability of an error correction service is required pursuant to section 45b TKG and the entitlement of the customer for an itemized bill in section 45e TKG.
The Telecommunications Consumer Protections Code (TCP Code) is a code of conduct for the telecommunications industry and applies to all carriers and carriage service providers in Australia. The TCP Code sets out clear rules which carriers and carriage service providers must following when communicating and dealing with consumers, covering areas such as:
(e) advertising and point of sale;
(g) payment methods;
(h) complaints handling; and
(i) changing carriage service providers.
The obligations of a carrier and carriage service provider under the TCP Code are in addition to those contained in the Australian Consumer Law, which comprises Schedule 2 to the Competition and Consumer Act 2010 (Cth).
The FCC's Telecommunications Consumers Division is tasked with protecting consumers from fraudulent and misleading practices. The FCC also protects consumer privacy by restricting the disclosure of customer proprietary network information ("CPNI"). The FCC has recently issued new rules to protect consumers against "slamming" and "cramming" fraud. The Federal Trade Commission ("FTC") has enforcement authority with respect to false and deceptive business practices. A recent federal appellate court ruling affirmed the FTC's authority over common carriers with respect to such practices.
The Telephone Consumer Protection Act of 1991 restricts telemarketing activities, including text messaging, and the use of automated dialing technologies in consumer solicitations, and established a "do not call" registry. The interconnection requirements for data networks are no longer regulated since the recent real of the FCC net neutrality regulations.
See previous question.
Consumer protection in the telecommunications space is a complex area in which both IFT and the Office of the Consumer Protection Attorney General (Procuraduría Federal del Consumidor or “PROFECO”) share jurisdiction. IFT, on the one hand, has powers under the FTBA to set quality standards and monitor and enforce compliance with the same by the different telecommunications carriers. It can also enforce the rights of telecommunications services’ users under the FTBA.
PROFECO, on the other hand, gets its authority under the Federal Consumer Protection Act (Ley Federal de Protección al Consumidor or “CPA”), which is a comprehensive statute setting forth the rules applicable to the relationship between consumers and suppliers in the marketplace across all industries, including telecommunications. Under the CPA and certain official standards issued thereunder, PROFECO ensures that telecommunications services providers comply with their obligations with respect to, among others, fair disclosure, fair dealing, marketing practices, clearance sales, remote sales, financing, product guaranties, claims, spare parts and repairs, warranty of services, standard form contracts (contracts of adhesion, which must be registered with PROFECO) , consumer information and privacy (it should be noted that in Mexico there is a specific regulator for privacy matters, INAI, which also has jurisdiction over telecommunications services providers with respect to their collection and treatment of personal data of subscribers and the exercise of the latter of the ARCO rights, among others), collection efforts and liability
The Telecom Act provides certain consumer protection regulations, which include:
(i) review of tariffs by the MIC;
(ii) obligation of the carrier to explain terms and conditions;
(iii) obligation of the carrier to deliver certain explanatory documents;
(iv) consumer’s right to terminate the contract;
(v) certain prohibited conducts of the carrier (e.g., intentional failure to disclose or misrepresentation of material information about the contract, or continuous solicitation to already rejected users); and
(vi) obligations of the carrier to make proper guidance to sales intermediaries.
See Q4 above.