TIO Annual Report 2002/03

Case Studies

• Land Access - Objection to mobile antenna
• SIM Unlock Fee

The Complaint:

The carrier proposed utilising its maintenance powers under Schedule 3 of the Telecommunications Act (‘the Act’) to replace an existing antenna on a light pole with several additional antennas. The landowner objected, arguing that the pole might not be able to support additional antennas, that the antennas would interfere with lighting equipment on the pole and were inconsistent with the use of the land, and that the carrier had not provided details of how it would minimise detriment or details that established the antennas as “low-impact” pursuant to the Telecommunications (Low-impact Facilities) Determination. After a period of consultation between the parties, the objection was referred to the TIO for consideration.

TIO Response:

The TIO requested that the carrier explain why it wanted to utilise its maintenance powers rather than its installation powers and why it considered its proposal described maintenance of a facility.

The Outcome:

After consideration of the relevant sections of the Act, the TIO concluded that the carrier’s proposal was outside the scope of its maintenance powers. This was because the Act’s maintenance provisions do not allow the volume of a replacement facility to exceed the volume of the original facility. In this proposal, the new antennas were clearly larger than the existing antenna.

The Complaint:

A complainant contacted the TIO regarding the cost associated with the removal of a SIM lock on a mobile phone handset he had purchased more than 12 months before. The complainant told the TIO that he purchased his phone believing that he was free to choose to use any provider he wished. The complainant claimed that when he realised that a new SIM card provided for a new network did not work in the phone, he called his previous provider and was advised that it would cost him over $100 to have his handset unlocked. The complainant alleged that he contacted his previous provider on multiple occasions about this issue and was told 3 different values of the fee to have the handset unlocked.

TIO Response:

The TIO raised a complaint with the provider asking it to indicate where such a fee was provided for in its terms and conditions, and what the value of the fee should be. The TIO considers SIM unlock fees in a similar manner to early termination fees, and so also asked the provider to indicate whether the fee was a genuine pre-estimate of its loss.

The Outcome:

The provider gave the TIO a copy of its terms and conditions and referred to a clause that stated that a fee to unlock the handset was only payable within the first twelve months of purchasing the handset. As the complainant had had the phone for just over twelve months no fee was payable. The provider’s Customer Care Notes did indicate that the complainant had been advised that a fee was payable, but the provider could not explain why this was the case in light of its terms and conditions. The provider therefore arranged to unlock the complainant’s handset free of charge.

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