3.
Duty of Licensees to Their End Users
Introduction
3.1.
Application
3.1.1  All provisions in this section apply to Dominant Facilities-based Licensees. In this section, the term “Dominant Licensee” refers to Facilities-based Licensees that IDA has classified as dominant. Subsections 3.1-3.2.7 also apply to Non-dominant Facilities-based, Services-based, and Telecommunication Equipment Dealer Licensees. In these subsections, the term “Licensee” refers to Facilities-based, Services-based and Telecommunication Equipment Dealer Licensees. This section governs the relationship between Licensees and their customers that are business or residential end users (“End Users”). This section does not govern the relationship between a Licensee that purchases telecommunication service and equipment from another Licensee to provide telecommunication service and equipment to third parties.
Over-view
3.1.2  The growth of competition will provide End Users with increased choice amongst Licencees. In competitive markets, market forces, augmented by the minimal requirements and prohibitions contained in this section, will generally be sufficient to ensure that Licensees provide telecommunication services to End Users on just, reasonable and non-discriminatory terms. Where a Licensee is not subject to effective competition, however, IDA will require it to comply with more stringent requirements designed to replicate the operation of a competitive market.
Duties of All Licensees
3.2.Licensees shall include in any agreements with their End Users provisions that obligate the Licensee to embody the applicable requirements contained in this section.
Duty to Comply with Minimum Quality of Service Requirements
3.2.1  Licensees must comply with any applicable minimum quality of service standards issued by IDA. Licensees must make publicly available, no less than once each year, in a format that can be understood easily by End Users, a statement of the extent to which the Licensee has met all applicable IDA quality of service standards. A Licensee and an End User (except an End User that is a residential customer) may agree to a lower quality of service standard. In such cases, the Licensee must inform the End Users of the service level that it will provide and the fact that it does not comply with IDA’s minimum quality of service standards.
Duty to Provide Periodic, Accurate and Timely Bills
3.2.2  Licensees must provide End Users with periodic, accurate and timely bills. In particular, Licensees must comply with the following requirements:
Advanced Disclosure of All Prices, Terms and Conditions
(3.2.2.1)Licensees must disclose to End Users, in advance, the price and non-price terms governing the provision of telecommunication services or equipment. A Dominant Licensee must disclose this information by publishing in a form available to the public any tariff approved by IDA. Whilst other Licensees may not file tariffs, they must publish the prices, terms and conditions for their standard telecommunication services or equipment offerings.
Billing Timeliness
(3.2.2.2)Licensees must provide End Users with statements of charges in a timely manner. Where a Licensee provides telecommunication services or equipment for which the End User must make recurring payments, unless otherwise agreed to by the Licensee and the End User, invoices shall be sent monthly.
Billing Clarity
(3.2.2.3)All statements of charges must be clear and concise. In particular, the statements must list, in easy-to-understand terms, the charges for each telecommunication service or equipment provided.
Compliance with Tariff or Contract Rates
(3.2.2.4)The statement of charges must reflect the prices, terms and conditions previously specified by the Licensee under subsection 3.2.2.1.
No Charges for Unsolicited Telecommunication Services or Equipment
(3.2.2.5)A Licensee may charge an End User only for the specific telecommunication services or equipment that the End User has ordered. In addition to any sanctions that IDA may impose, the End User shall have no liability to pay for any telecommunication services or equipment that the End User has not ordered.
No Charges by Unauthorised Providers
(3.2.2.6)No Licensee may switch an End User from one Licensee’s telecommunication service to another Licensee’s telecommunication service without the prior consent of the End User. In addition to any sanctions that IDA may impose, the End User shall have no liability to pay for any telecommunication services provided by a Licensee from which the End User has not requested services. The Licensee shall also bear any cost necessary to switch the End User back to the End User’s original telecommunication service provider.
Duty to Provide Procedures to Contest Charges
3.2.3  Licensees must provide procedures that will allow an End User to dispute any charge for telecommunication services or equipment that the End User reasonably believes to be incorrect. These procedures must, at a minimum, include the following, unless the Licensee and the End User (except an End User that is a residential customer) agree otherwise:
Right to Withhold Payment
(3.2.3.1)The End User must pay the undisputed amount of the bill, but must not be required to pay any reasonably disputed amounts pending the resolution of the dispute. Should the End User ultimately be found liable for the payment, the End User will be required to pay the amount due, reasonable compensation for the Licensee’s arbitration, litigation and collection expenses, plus interest. The rate of interest must be set at a commercially reasonable amount, which will be specified in advance by the Licensee.
Initiation of Challenge
(3.2.3.2)If the End User intends to withhold payment, the End User must inform the Licensee of any disputed charge prior to the date on which payment becomes due. An End User that pays an invoice and subsequently chooses to contest the invoice must have no less than one year in which to do so.
Licensee Review
(3.2.3.3)The Licensee must conduct a complete and objective review of the End User’s complaint, and must provide a written response, within 30 days of receiving notification that the End User is contesting a charge.
Conciliation
(3.2.3.4)In appropriate cases, IDA will assist the parties in resolving billing or other service-related disputes.
Private Dispute Resolution
(3.2.3.5)If the parties are unable to resolve the dispute, they may refer the matter to the Small Claims Tribunal, if the matter is within that body’s jurisdiction. Otherwise, the parties may submit the dispute to arbitration or to any court of competent jurisdiction.
Suspension or Termination of Service by Licensee
3.2.4  A Licensee that provides a telecommunication service or that leases telecommunication equipment must specify prominently in the service agreement or equipment lease:
(a)any basis on which it reserves the right to suspend or terminate that service agreement or equipment lease and
(b)the procedures for providing the End User with advance notice of any proposed suspension or termination, the basis for the action and the means by which the End User can avoid such suspension or termination. A Licensee must obtain IDA’s written approval before adopting or revising any provision that would allow it to suspend or terminate a service agreement or equipment lease. IDA will not permit any Licensee to suspend or terminate a service agreement or equipment lease on the ground that the End User is using the service or equipment to engage in illegal or improper activities. Instead, in such a situation, the Licensee should inform the relevant authority and act in conformity with that authority’s directions or guidelines.
Prohibition on Excessive Early Termination Liabilities
3.2.5  Licensees may enter into agreements under which they provide an End User with a discount or special considerations in return for the End User’s agreement to commit to a minimum service or lease duration period and/or a minimum revenue commitment. Such agreements may contain provisions providing for termination liability in the event that the End User ends the agreement prior to the agreed upon termination date. However, the amount of any early termination liability must be reasonably related to the extent of the discount or special considerations that the Licensee has provided and the duration of the period during which the End User took service or lease.
Duty to Protect End User Service Information
3.2.6  Licensees have a duty to protect End User Service Information (“EUSI”).
Definition
(3.2.6.1)EUSI consists of all the information that a Licensee obtains as a result of an End User’s use of a telecommunication service or equipment provided by the Licensee. This includes, but is not limited to, information regarding: the End User’s calling patterns (including number of calls, times of calls, duration of calls and parties called); the services or equipment used by the End User; the End User’s telephone number and network configuration; and the End User’s billing name, address and credit history.
Restriction on Use
(3.2.6.2)Unless the End User has provided authorisation as provided for in subsection 3.2.6.3 of this Code, the Licensee may use EUSI only for the purposes of: planning, provisioning and billing for any telecommunication services or equipment provided by the Licensee; managing bad debt and preventing fraud; facilitating interconnection and inter-operability between Licensees; or providing assistance to law enforcement or other government agencies. Licensees shall adopt appropriate procedures to ensure that, unless the End User has provided authorisation, they do not use EUSI for the development or marketing of other goods or services, and that this information is not provided to affiliates or third parties.
End User Authorisation
(3.2.6.3)An End User will be presumed to have withheld consent from the Licensee to use its EUSI for any purpose other than those specified in subsection 3.2.6.2 of this Code unless the End User affirmatively consents to do so. At the time a Licensee enters into a service agreement (or, for those Licensees that currently provide service or lease equipment, within 180 days of the effective date of this Code), the Licensee shall seek to obtain the consent of the End User to use its EUSI for any lawful purpose. Licensees must also develop, and inform their End User, of easy-to-use procedures by which an End User can subsequently grant or withdraw consent.
Reporting Requirement
3.2.7  Licensees must submit to IDA and make publicly available, on no less than on a quarterly basis, a report indicating the number of complaints that they have received from their End Users during the reporting period. IDA reserves the right to specify the format that Licensees must use.
Special Duties of Dominant Licensees
3.3.Dominant Licensees must comply with the following additional requirements:
Duty to Provide Service on Demand
3.3.1  A Dominant Licensee must provide telecommunication service to any End User upon reasonable request.
Duty to Provide Service at Just and Reasonable Prices, Terms and Conditions
3.3.2  A Dominant Licensee must provide telecommunication services at prices, terms and conditions that are just and reasonable.
Duty to Provide Service on a Non-discriminatory Basis
3.3.3  A Dominant Licensee must provide telecommunication services to End Users at prices, terms and conditions that are not discriminatory. This requires that, except where otherwise permitted or required by IDA, differences in the prices, terms and conditions for comparable service provided to different End Users must be based on objective differences, such as but not limited to variations in the cost of the service provided, variations in the quantity or quality of service provided or variations in the duration of the service agreement period. A Dominant Licensee must not discriminate in favour of a subsidiary, affiliate, or related entity. In particular, the Dominant Licensee must provide telecommunication service to such entities pursuant to the prices, terms and conditions contained in its effective tariffs.
Duty to File and Provide Service Pursuant to Tariffs
3.3.4  Prior to offering any new End User telecommunication service (including new services offered to a limited number of End Users on a trial basis) or modifying an existing telecommunication service offering, or offering or modifying a promotion, a Dominant Licensee must file a tariff with IDA and obtain IDA’s written approval. A Dominant Licensee must provide telecommunication services at the prices, terms and conditions specified in its approved tariffs. Dominant Licensees may develop offerings to meet the specific needs of individual End Users for telecommunication services. The Dominant Licensee must file a tariff embodying the prices, terms and conditions of the offering, and must make those prices, terms and conditions available (subject to reasonable modification) to any other End User upon request.
Information to be Included
3.3.4.1  The tariff must contain a clear statement of the prices, terms and conditions on which the telecommunication service will be offered. The tariff must list any discounts or special considerations that the Dominant Licensee will offer and the requirements that must be satisfied (such as minimum volume or term requirements) to obtain those discounts. The tariff must also indicate the minimum period of time, if any, during which the Dominant Licensee will not increase the filed rates. The tariff filing must be self-contained (i.e., it must not make reference to any other document) and must include charges for any telecommunication service or equipment not generally subject to tariff regulation when offered as part of a package. The tariff filing must be accompanied by a memorandum that describes the proposed offering or modification and provides sufficient information to demonstrate that the proposed offering or modification satisfies the criteria specified in subsection 3.3.4.2 of this Code.
Review Criteria
(3.3.4.2)IDA will review the tariff filing. As part of its review, IDA will seek to determine whether or not the proposed prices, terms and conditions are just and reasonable. This will include an assessment of whether the proposed prices, terms and conditions are either excessive or inadequate. To assess whether the proposed prices are excessive, IDA will determine whether the prices are competitive with those in a “basket” of jurisdictions, including neighbouring countries, newly industrialised countries, and major financial markets. To determine whether the proposed prices are inadequate, IDA will assess whether the proposed prices are either: (a) above marginal cost or (b) not less than those offered by Licensees that provide a comparable service. IDA will also seek to determine whether the proposed prices, terms and conditions are not discriminatory by comparing the proposed prices, terms and conditions to those that the Dominant Licensee offers in other tariffs for comparable telecommunication services.
Review Procedures
(3.3.4.3)In general, within 7 working days, IDA will either accept or reject the tariff. This period is shortened to 5 working days for joint promotional offerings or 3 working days for stand-alone promotions. A working day means Monday through Saturday, except public holidays. If IDA rejects the filing, it will provide a statement of the basis for its rejection. Where IDA determines that it would be beneficial, however, it may take any of the following actions: (a) extend the review period; (b) seek public comments; and/or (c) allow the tariff to go into effect on an interim basis, subject to retroactive adjustment if IDA concludes that any price, term or condition in the tariff contravenes this Code.
Status of Effective Tariffs
(3.3.4.4)Once IDA allows a tariff to go into effect, IDA will presume that the prices, terms and conditions are just, reasonable and non-discriminatory. IDA may review the tariff periodically to determine whether the prices, terms and conditions remain just, reasonable and non-discriminatory, and may direct the Dominant Licensee to make appropriate adjustments. In addition, any person that believes that the prices, terms and conditions on which a Dominant Licensee is providing telecommunication services are unjust, unreasonable or discriminatory may petition IDA to review these provisions. The petitioner must provide the basis for its belief. IDA may also take enforcement action if it concludes that an effective tariff or the Dominant Licensee’s implementation of the tariff contravenes subsections 7.2-7.2.2.2 of this Code.
Duty to Provide Unbundled Telecommunication Services
3.3.5  A Dominant Licensee must provide telecommunication services on an unbundled basis. The Dominant Licensee must not require an End User that wants to purchase a tariffed telecommunication service to purchase any other telecommunication service or equipment as a condition for purchasing the tariffed telecommunications service. However, the Dominant Licensee may offer End Users the option of purchasing a package that contains telecommunication services subject to tariff regulation and other telecommunication services or equipment not generally subject to tariff regulation.