Regulatory accountability also involves regulators having appropriate procedures to channel consumer inquiries or claims, to educate consumers regarding their rights, and to protect consumers in case of market failures. In a majority of countries, regulators assume responsibility for handling consumer complaints.
1 The particular mechanisms developed and instituted for consumer protection in each country may differ and require tailoring to the needs of the country depending on the country’s particular legal and institutional systems and culture. For instance, certain mechanisms, such as ombudsmen, tend to work best in countries with a long history of consumer activism.
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Mechanisms for consumer protection
Telecommunications regulators have implemented different methods to make themselves accessible to the public and to facilitate the handling of consumer complaints. Some countries have administrative offices outside the regulator, while others have utilized internal offices of consumer affairs. As telecommunications markets become more competitive, regulators continue to take a proactive role to protect consumer rights through consumer protection legislation, licence conditions, consumer education and information, and encouragement of industry self-regulation through industry codes. For example, many regulators have published consumer information fact sheets, guides and brochures on their websites. Most telecommunications legislation and related regulations contain provisions on quality of service standards, telecommunications fraud, number portability, carrier selection, and universal service. In many countries, consumers have more than one avenue to file complaints with the regulator so the regulator is better able to handle consumer concerns in a competitive market. Usually, consumers can file complaints in several ways: (i) in writing, (ii) by e-mail; (iii) by telephone, (iv) by fax, or (v) in person at the regulator’s offices, in consumer centers/call centers or in a Consumer Parliament (e.g., Nigeria). The procedures for filing complaints with the regulator are generally simple in order to facilitate their submission, and are published on the regulator’s website, in official publications and available at the regulator’s offices.
In some countries, such as Australia, Hong Kong (SAR) and Malaysia, the regulators place significant emphasis on industry self-regulation and on codes that are developed by industry and approved and registered with the regulator, covering issues such as billing, number portability, pricing information, and complaint handling by operators.3 Other regulators have also established consumer advisory committees and forums to provide the regulator with advice on consumer concerns, promote consumer input into policies and regulations and to ensure that the consumers’ interests are taken into account during the regulator’s decision-making process. In Australia, the regulator is required by legislation to establish a consumer forum.4 Australia has also created an independent Telecommunications Industry Ombudsman to investigate complaints about the provision of telephone or Internet services and to help parties settle disputes regarding such services.5
In Canada, the Governor in Council issued Order requiring the CRTC to report to the Governor in Council on consumer complaints, which required the creation of an independent telecommunications consumer agency. Pursuant to the terms of the Order, telecommunications service providers are required to participate in and contribute to the financing of this independent agency. The Canadian regulator, the Canadian Radio-television and Telecommunications Commission (CRTC) was charged with approving the structure and mandate of such an agency. The CRTC subsequently gave provisional approval to the structure and manadate of the Commissioner for Complaints for Telecommunications Services (CCTS). The CCTS has been operating since the summer of 2007, although the CRTC has made a number of changes to its structure and mandate in order to ensure its effectiveness and its independence from the telecommunications industry.
Many regulators, particularly in developing and less competitive markets cannot rely on industry self-regulation and must assume a larger role in consumer empowerment and protection. Some regulators, such as Anatel in Brazil and the Nigerian Communications Commission (NCC) have created innovative ways for addressing consumer complaints. (See Box 7-7 below for example of Brazil.) The NCC has established a Consumer Affairs Bureau to serve as the industry watchdog for educating, informing, and protecting consumers. Additionally, the NCC has published a Consumer Bill of Rights recognizing the inalienable rights that every consumer should have, including: (i) the right to be informed; (ii) the right to safety; (iii) the right to choice; and (iv) the right to be heard. The NCC also instituted a Consumer Parliament, which brings all stakeholders, consumers, operators, and the regulator together and provides a live broadcast, public forum where the regulator can educate the public and consumers can ask questions and voice their grievances.6
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Box 7-7: Brazil - Consumer Protection Entities
In Brazil, three entities work with Anatel to assist with consumer complaints: the Office of Consumer Affairs, Anatel’s Citizen Rooms, and the Committee for the Protection of Telecommunications Service Users.
Office of Consumer Affairs
The Office of Consumer Affairs within Anatel accepts consumer complaints sent to Anatel by e-mail, letters, or through Anatel Call Centers. Complaints about service providers must be sent first to the relevant service provider, which is required to contact the consumer within five days. Complaints about Anatel are sent to the specific department within Anatel that is subject of the complaint. The Office of Consumer Affairs has the following functions: (i) advise Anatel on matters of consumer rights; (ii) receive, respond, and channel internally and externally, complaints, requests or comments of consumers; (iii) implement and expand methods and procedures for the relationship between Anatel and consumers; and (iv) manage Anatel’s Call Centers.7
Citizen Rooms
Anatel’s Citizen Rooms also provide a communication channel between Anatel and the public. Interested parties can use the Citizen Rooms to submit licence requests for the provision of a variety of services, and file complaints regarding services. The Citizen Rooms provide access to Anatel’s public database and are equipped with computers, printers, fax, scanners, telephones, VCR, as well as attendants to provide information related to Anatel’s activities. Any party can conduct online searches of Anatel’s reports, contracts, decrees, resolutions, standards, and have access to telecommunications legislation.8
Committee for the Protection of Telecommunications Service Users
Anatel has also created several strategic external committees, which are intended to develop studies, proposals and recommendations on specific matters. The committees act as advisory bodies to the Board of Directors. The Committee for the Protection of Telecommunications Service Users advises the Board of Directors regarding consumer protection. The Committee is comprised of members of different Anatel offices, a representative of the Department of Consumer Protection of the Secretary of Economy, a representative of users of fixed telephony services; a representative of users of mobile services, a representative of users of mass media services, a representative of users of other telecommunications services, and entities representing telecommunications service providers. The Committee has the following functions: (i) advise Anatel’s Board regarding its relationship with the National System of Consumer Defense; (ii) provide Anatel’s Board with directives regarding consumer rights; (iii) develop procedures for prevention of violation of consumer rights; and (iv) advise the Board regarding dispute resolution mechanisms for consumer disputes. |
Some countries have specialized tribunals to assist consumers with adjudicating their claims against operators. In Peru, the Administrative Tribunal for the Settlement of Users Claims (TRASU)9 adjudicates claims filed by users of public telecommunications services. TRASU is part of OSIPTEL but is fully independent in its rulings and is the last administrative review for users’ claims. The six members of TRASU are elected by OSIPTEL’s Board of Directors based on a recommendation submitted by OSIPTEL’s Chairman, and are remunerated for their services. TRASU can be part of OSIPTEL’s staff, or professional experts. Its functions are to: (i) resolve claims and appeals submitted for its consideration; (ii) propose to OSIPTEL’s Managing Council the modification of the procedures to deal with users’ claims, and those related to violations and sanctions; (iii) approve the content of forms and other materials to be used, to allow the expeditious resolution of claims and appeals submitted for its consideration; and (iv) engage in other matters entrusted to it by OSIPTEL’s Managing Council.10 TRASU has jurisdiction over:
- revision of decisions concerning users claims issued by telecommunications operators;
- claims or appeals against decisions issued by the operators in connection with claims filed against the operator’s administrative procedures; and
- appeals against decisions related to quality of service problems.
Colombia has taken a different approach to consumer complaints. While one of the regulator’s functions is to provide information to customers regarding telecommunications services, the authority to adjudicate disputes between telecommunications operators and customers has been delegated to the Superintendencia de Servicios Publicos Domiciliarios (Superintendency of Domestic Public Services -SSPD).11 This is a multi-sectoral administrative body independent from the telecommunications regulator, created by the Colombian Constitution in 1991, to exercise the functions of supervision, inspection, and oversight of entities providing public services such as energy, gas, and telecommunications services. The SSPD receives appeals filed by users and subscribers after they have been filed directly with the telecommunications operator. The SSPD can impose sanctions on public service providers.
The United Kingdom has adopted an interesting approach to handle consumer complaints concerning telecommunications services. In January 2003, the Office of the Telecommunications Ombudsman (Otelo) was established as a voluntary dispute resolution service, independent from the regulator Ofcom. Otelo reviews and seeks to resolve consumer complaints against companies that are members.12 Otelo’s current members cover more than 96 per cent of the fixed line telephone market, over 55 per cent of the mobile telephone market and 33 per cent of the ISP market. Otelo is composed of an Ombudsman, two senior managers, a board composed of seven members (five nominated by member companies and two appointed from the independent council members), and a Council whose main role is to appoint the Ombudsman and manage Otelo’s services. Otelo’s terms of reference detail the range of telecommunications services that are covered, and what Otelo can and cannot do.13 Otelo considers complaints against member companies where the complainant and the company have been unable to reach an agreement, and determine whether the member company must take any action for the consumer’s benefit.
With the development of the Internet, many countries are also in the process of drafting and adopting guidelines and regulations for protection of consumers involved in online activities, such as data protection laws, cyber-crime laws, and anti-spam laws. The approach to consumer protection in the ICT environment varies among countries, with some countries, such as the United States, adopting a more hands-off approach and others, such as the EU, adopting a stricter regulatory approach.14 Because of the variations in laws among countries, and the need to coordinate international efforts in handling the flow of Internet data and cyber-crimes, there is a movement to harmonize standards in ICT-related laws among countries. Further discussion on such ICT-related laws can be found in Chapter 4.
Consumer complaints against operators
The majority of consumer complaints relate to the conduct of telecommunications operators and service providers. Regulators have created specific standards and filing requirements for telecommunications operators to protect consumer interests. Regulations often require companies to establish procedures to handle consumer complaints. In addition, in some instances, the regulations also include a requirement that the company have customer service personnel available 24 hours to handle consumer inquiries, and that any information concerning the procedures and the right to submit claims should be publicly available and located conspicuously at the company’s offices and/or on its website. Further, operators are sometimes required to create special forms designed to facilitate consumer claims, to keep registers of consumers’ claims, and to establish specific timeframes for resolving consumer complaints or applying specific rules, such as the positive administrative silence rule used in civil law countries.15
Generally, primary responsibility for handling consumer complaints against telecommunications operators resides with the company providing the service, since the operator has all the relevant information concerning the service and therefore is better able to address the claims. The company’s procedures dealing with the consumer complaint set the framework for the initial administrative review of the user’s claim, before intervention by the regulator. The regulator generally intervenes only after the consumer is unable to resolve the issue directly with the operator or service provider, or if the consumer complaint involves a breach of the telecommunications law and regulations or licence provisions. In Hong Hong, OFTA states clearly that its powers and functions regarding consumer complaints against an operator are limited to the conduct and practices of the operators regulated under the telecommunications laws and licence conditions, and OFTA does not have any power to adjudicate contractual disputes between individual consumers and operators.16 Contractual disputes between consumers and operators can often be resolved through dispute resolution mechanisms, as described in Section 7.4.1.
Additionally, depending on the nature of the complaint and whether the complaint is outside of the regulator’s scope of authority, consumers may seek recourse with the courts or other consumer organizations or agencies. In Ireland, for example, consumers can address complaints to the Small Claims Court, the European Consumer Center, Regtel (the independent regulator for content and promotion of premium rate telecommunications services), the Office of the Data Protection Commissioner, the Advertising Standards Authority for Ireland, and the Office of the Director of Consumer Affairs.17 The intervention of an attorney for consumer claims generally is not required because this would oblige the consumer to incur further expenses and discourage claims. The consumer, however, usually has discretion to use an attorney if desired.
ENDNOTES
1 ITU World Telecommunication Regulatory Database 2005. 120 out of 124 countries surveyed (83%) state that the regulatory authority is responsible for handling consumer complaints.
2 See comment by Mr. Ewan Sutherland at the China-ITU Seminar on Universal Service and Consumer Rights Protection, Summary Report, Session 7 Panel Discussion, August 2005, available at http://www.itu.int/ITU-D/treg/Events/Seminars/2005/China/Documents/16-SummaryReport.pdf.
3 Dr. Bob Horton, Telecommunications Consumer Protection in the Asia-Pacific Region, Report to the ITU Global Symposium for Regulators, December 2002.
4 The Consumer Consultative Forum was established under the Australian Communications Authority Act of 1997 and continues in existence under the Australian Communications and Multimedia Act 2005. See Australian Communications and Multimedia Act 2006, Sec. 59.
5 The role and powers of the Ombudsman is described in the Telecommunications (Consumer Protection and Service Standards Act) 1999, as amended, Part 6.
6 See Nigerian Communications Commission website at http://www.ncc.gov.ng/consumeraffairsbureau.htm.
7 Article 132 of Anatel’s Internal Regulations, approved by Resolution No. 270 of 19 July 2001.
8 See www.anatel.gov.br.
9 Created by Resolution No. 013-95 CD/OSIPTEL.
10 Resolution 010-2002 CD/OSIPTEL , 21 April, 2002.
11 See http://www.superservicios.gov.co/
12 Any Public Communications Providers (PCP) can be a member of Otelo. A PCP is any company that provides an electronic communications network or service to the public such as fixed voice telephony, mobile voice telephony, fax and associated or supplementary services including voice mail and call forwarding as well as services and/or products provided to the disabled community, including access to text relay services and free directory services.
13 See Terms of Reference, Council of Telecommunications Ombudsman Service, United Kingdom, http://www.otelo.org.uk. The specificity of what the Ombudsman can and cannot do is detailed in the Terms of Reference, noting further that the Ombudsman has an absolute discretion to decide whether a complaint is within the Ombudsman’s jurisdiction.
14 Boutheina Guermazi and David Satola, Creating the “Right” Enabling Environment for ICT, Chapter 2 in e-Development: From Excitement to Efficiency, The World Bank (2005), at 24.
15 The positive administrative silence rule in civil law countries specifies that the silence or lack of response of an administrative agency is interpreted in favour of the person who requests the action. For example, if the regulator does not grant a licence in a determined timeframe and there is no indication about the issuance of the licence from the regulator, then the licence is considered to be granted.
16 OFTA Fact Sheet, Know More About How OFTA Handles Your Complaint Against a Telecommunications Operator, available at www.ofta.gov.hk.
17 Commission for Communications Regulation, Information Notice, ComReg’s Approach to Consumer Issues in the Irish Communications Market, Doc. No. 03/20, 18 February 2003.