QLD Query on Telecommunications Consumer Protection?

[mossyblog]

Today, if you sign up with an Internet Service Provider (Retail), you are first and foremost bombarded with a series of protection waivers and agreements that are interlinked (badly cited) online. Furthermore there are situations where they implicitly ask you to agree to opt out of Part 5 of the Telecommunications Consumer Protection & Services Act (which for me is like saying "Oh we prefer as an employer to just ignore the discrimination act, just sign here" ..as isn't that kind of an important "you can't do that" moment?

As part of these agreements you are asked to abide by, there are various clauses that are consistent amongst all providers I've researched. The specific area of focus is fault or service warrantees that essentially state that when the retailer cannot resolve the issue that is "outside their reasonable control" they are somewhat absolved of any recourse by you as a consumer. Further to this point, if a wholesaler (who provides the physical connectivity) has a major fault, the retailer isn't responsible.

eg: the relationship is consumer -> retailer -> wholesaler -> national network.

The part that I find confusing is the definition of "reasonable", more to the point what is considered "normal" vs. "abnormal" in service availability.

For instance, say you sign up with an internet service provider and during off-peak periods, you have 90% average speed. Then during peak periods this is reduced to say 10% speed. Is this abnormal or normal? Who decides the cut-off for this and more over how is the consumer afforded any rights to argue unreasonable given the capabilities of speed have shown or proven to be capable as that being "advertised for sale".

As nothing in the contracts or legislation, I can find thus far states anyone is responsible. The implication is that you lodge faults via Telecommunication Industry Ombudsman, but that's simply the body that ensures the resolution commences, yet it doesn't appear that they can argue or state that answer. I've also looked at ACMA (Australian Communications and Media Authority), but the closest thing I could find is TCP Codes (Telecommunications Consumer Protections Code) which imply that retailer is expected to adhere to certain standards - yet - these don't articulate in detail what "reasonable" and/or "normal/abnormal" is.

Moreover, if a retailer sells a package that gives you 100 Mbps in speed download but during peak times can only achieve 10 Mbps while not advertising this fact, what is the recourse for the consumer here? As it seems there are zero protections in place for consumer(s) with something as fundamental is basic internet in Australia.

 

[Rod]

The nature of the service is one of the problems. The quality of the service does depend on factors outside of the control of retail ISP and so they should not be responsible for those factors, hence some waivers. Providing internet access is unlike many other service industries where the supplier of the service has control over the service quality (eg tradespeople).

The good thing in Australia is that there are over 300 ISPS to choose from, so if one is not delivering the service you need, go to another.

If the NBN is the root cause of the problem we have the ACCC who can step in and impose penalties.

Some shared services such as cable internet and NBN wireless will often have speed issues due to the nature of the service. The technology simply cannot deliver 100 Mbps consistently in peak times and there is no magic fix for the service. All the ISPs can do is claim the max speed and say it may slow down in peak times. Possibly better advertising of real speeds in peak times may help set expectations.

All the big ISPs have been fined at some stage by the ACCC for misleading behaviour though some say the fines have been too low.

It is wrong to say there are zero protections for consumers. ACCC actions against the 'gang of four' is a good example where the players in the industry are held to account for the advertising and services they provide. As a consumer you also have access to the TIO (Telecommunications Industry Ombudsman) who can help with individual complaints.

 

[mossyblog]

Thanks for your response.

I agree, there are factors at play from backhaul onwards that determine speed decay. However, the heart of the issue is in around what is defined "normal" and that's the keystone piece that is left in limbo. For instance, if you are constantly getting 5% of your capacity in speed every day between 3pm and 9pm but then it increases back to 90% is this considered "normal". What if you got around 1% speed during peak periods and so on.

This is where the real issue lies in that to advocate the TIO take a position on this someone, somewhere has to draw upon a benchmark that is deemed within the normal spectrum. I can't see anything legally thus far that points to that other than the ye olde word "reasonable" which again is open for debate as to what that means.

There are factors that are controlled by retail and wholesalers. For instance, if the wholesaler can state that physical fibre optic lines they provide have the capacity to enable 90% throughput within their infrastructure (not just NBN) then you, in turn, have to infer that the retailer is in control of that responsibility surely.

ACCC don't actually get involved in ISP related issues they defer to ACMA / TIO for these matters. After Level 2 phase of a TIO complaint it somewhat tapers down to "Choose another provider" but here in lies the issue, you technically can't when on Fibre, and furthermore, all providers right now are using the same if not cloned tactics to avoid responsibilities.

To what end is the consumer really protected and today, they're simply not. As the choice of the 300 is a false positive, given with Fibre, there're only two wholesalers that provide fibre (NBN and OptiComm). Retailers are reselling the same infrastructure and retaining the same avoidance measures.

 

[Rod]

The problem can be in any of 3 places (ignore international for this exercise) - retail ISP, wholesale ISP (if present), NBN.

If the problem is on one of the first two, moving to another ISP may fix the problem.
If NBN is the problem, then ACCC should be stepping in.

Your problem may not be legal, it may be regulatory. In 2011 it was the ACCC who mandated how ISPs connect to the NBN.

Move to another ISP and see if the problem goes away.

 

[mossyblog]

I agree the problem can be at numerous points of failure. However, that's somewhat moot in the end. The reason i state this is that typically providers issue you a "Fair Use Policy" as a response to speed/guarantees as a way to deter further enquiry. Yet, when you actual look at the contractual agreements, you make with the providers these policies actually aren't apart of the said package of legal agreements. Its implied post-agreement but its not binding to the actual agreement you make.

Providers have profiles they define via CVC which a merely slight deviations in configuration on top of the existing infrastructure. Lets, for example, say you're in a fibre-ready estate. The land developer at the time cut corners and as such you have an overly congested network all fighting for the same bandwidth.

Now in this scenario we can say "wholesaler is at fault" but in reality, the wholesaler isn't required to do anything as the implication is they are only supposed to provide minimum 1 Mbps per house hold regardless of capacity potential. I stress its implied, but in actuality, there is nothing formally documented anywhere that can be found on this metric.

Now moving between service providers is redundant given the wholesaler is at fault. A consumer calls the support pipeline and argues they are getting poor service(s). The retailer then attempts to resolve the problem, and it slowly spirals into a negative situation. Consumer complains to TIO, and it shifts from a complaint to a potential Level 3 investigation. The retailer then releases the consumer from the contract and states "it can't adhere to the service asked" and moves on. The cycle repeats.

Its both consumer protection and regulatory related, given ACCC only acts if the service provider is breaching the TCP Code of conduct but in this scenario neither the wholesaler or retailer are technical.

However, back to my originating point, how does one identify legally what "reasonable" is. As the implication today right now is that at 4:00 AM if both wholesale and retail can provide 1 Mbps of bandwidth at minimum then at 4:01 AM it drops to 0.500 Mbps they are free and clear of any recourse - despite - the consumer paying $150 a month for 100/40 package.

 

[Rod]

'Reasonable' as mentioned above is, in a legal sense, an objective test. It is not what you think is reasonable, it is what the ordinary person who is a member of the target audience would find reasonable. It is the fact finder (typically a judge) who decides what is reasonable in the circumstances.