TIO Annual Report 2002/03

Case Studies

• Internet Disconnection – Acceptable Use Policies
• Repeat Dial

Case Study: Internet Disconnection – Acceptable Use Policies

The Complaint:

A complainant contacted the TIO upon realizing that his Internet service provider had disconnected his service for exceeding an Acceptable Use Policy (AUP). The complainant advised the TIO that he understood the plan to be ‘unlimited’ as in the advertising material it referred to no limit for time and no limit for download. The complainant advised the TIO that his provider had informed him that his service was disconnected because he was in the 90th percentile of users.

TIO Response:

The TIO has been considering the issue of ‘unlimited’ Internet plans that are subject to an acceptable use policy, as a systemic investigation since late 2002. In this case, the provider had been meticulous in avoiding the actual use of the word ‘unlimited’, but had in fact used other words such as ‘no limit’ which, in the TIO’s opinion, would lead a reasonable person into believing that the service was unlimited. The TIO believes that unlimited plans that are subject to AUPs are a breach of clause 6.6 of ACIF’s Prices, Terms and Conditions Code which states that a disclaimer should not negate the principle message of the advertising.

The Outcome:

In this case, the provider agreed that it would no longer be offering this plan to potential customers. It also indicated that long-term it intended to phase the plan out for existing customers. The complainant’s account was re-connected but, in time, he was forced to reconsider his plan options.

Case Study: Repeat Dial

The Complaint:

A small business owner advised that he disputed liability for charges received from his telephone company for 48,018 calls made via his ISDN OnRamp service. He stated that the calls had accrued when one of the two channels of his router was disconnected from its designated Point of Presence (POP) by his ISP’s hardware. This resulted in the channel repeatedly dialling into the POP before the problem was rectified. The complainant provided a report from the IT consulting company that had installed the service and investigated the repeat dial problem. The report stated that no changes were made to the complainant’s equipment at the time that the problem was fixed; the problem was found to lie with the complainant’s ISP and was fixed when the ISP made changes to the configuration of its router. The complainant advised that he had paid the disputed charges, but believed that his ISP should reimburse him. The total of the charges in dispute was $8088.78.

TIO Response:

The TIO asked the ISP to respond to the complainant’s allegations and provide its perspective on the matter.

The ISP advised that it did not accept responsibility for the problem or charges as it had not been responsible for installing or configuring the service, but had simply “supplied the ports”. It stated that if the complainant had accepted its quote to install the service the problem would not have occurred. It also alleged that the complainant’s IT consulting company should have installed monitoring software sooner to identify the fault. While the ISP did agree that it had made changes to its hardware when it was made aware of the problem, it also alleged that the consulting company had changed the configuration of the complainant’s router. The ISP stated that the charges were not its responsibility, as it had not been provided with sufficient information from the complainant for it to be aware of the correct configuration required at its end for the service to function as required.

The complaint was upgraded to Level 4 status and, due to the highly technical nature of the evidence presented by both parties, the TIO consulted an independent expert on ISDN services. The expert analysed the evidence and stated his view that the ISP had not configured its equipment correctly and that this had caused the problem. The expert stated that the ISP should have been aware of the configuration required as the contract stated that the complainant would be using a 128K connection.

The TIO provided the ISP with the expert’s report and advised that its preliminary view was that it should reimburse the complainant for the charges. The TIO also noted that the contract for the ISDN service stated that it would “attend to faults and restore services to full working order.” However, when the complainant had first contacted it about the problem, it had referred him to his consulting company. The TIO stated that it therefore did not believe reasonable the ISP’s argument that its service to the complainant was limited to supplying the ports or that the consulting company was at fault for delaying the installation of monitoring software.

The Outcome:

The ISP did not accept the TIO’s view. The complaint was resolved by way of a formal determination by the Deputy Ombudsman that the ISP should pay the complainant the amount of $8088.78 in reimbursement for the repeat dial charges that he had paid to his telephone company.

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