Who’s to blame for ‘dis­ap­pear­ing’ data?

Con­sumers are up in arms, be­cause their phone data is ‘dis­ap­pear­ing’ for no ap­par­ent rea­son, but could the cul­prit be a de­fec­tive billing sys­tem? reports YOUR RIGHTS Your Vo­da­com ‘call limit’ ex­pires af­ter seven months

Weekend Argus (Saturday Edition) - - FRONT PAGE -

Sub­scribers to all the cel­lu­lar net­works are com­plain­ing that their data and air­time are “dis­ap­pear­ing”. The net­works’ stan­dard re­sponse is that your data and air­time can’t just dis­ap­pear: your smart­phone and data-hun­gry apps are con­sum­ing more than be­fore.

Mickey Be­ley isn’t buy­ing it. The Vo­da­com sub­scriber’s bill jumped from an av­er­age of R4 000 a month over the pre­vi­ous six months to R6 331 in March and then to R7 162 in April be­cause of ex­traor­di­nar­ily high data us­age. Data ac­counted for R2 257 of his March bill and for R4 700 of his April bill. Pre­vi­ously, data ac­counted for be­tween R8 and R46 of his to­tal bill.

Be­ley is in sales, so he’s on the net­work’s Red Pre­mium pack­age, which gives him 2GB of data and 1 200 min­utes of talk time ev­ery month. He says he ha­bit­u­ally mon­i­tors his us­age – check­ing it more than once a day – to en­sure he doesn’t ex­ceed the lim­its and in­cur hefty out-of-bun­dle rates.

“I’m a very care­ful user. I don’t use my phone as a hotspot [which en­ables other wire­less de­vices to use your data], nor do I leave apps open. I have a his­tory of buy­ing ex­tra data so that I don’t pay out of-bun­dle rates, which makes these bills all the more pe­cu­liar. They don’t re­flect my usual be­hav­iour.”

Be­ley does not sub­scribe to itemised billing, but if he did, it would show the date and time on which the data was con­sumed and how much data was con­sumed. Itemised billing does not show whether the data was used by an app or a web­site you vis­ited.

Af­ter re­ceiv­ing his bill for March, Be­ley went into a Vo­da­com out­let to ask for proof that he had used such an ex­tra­or­di­nary amount of data. He was told that only the “tech­ni­cal ser­vice di­vi­sion” could pro­vide such in­for­ma­tion; his re­quest would be sent to them. A week later, he went into an­other Vo­da­com out­let to fol­low up on his re­quest, but the in­for­ma­tion wasn’t avail­able. “I don’t know how many times I went into Vo­da­com stores to find out if In terms of con­sumer law, specif­i­cally the Con­sumer Pro­tec­tion Act and the Icasa Act, you are en­ti­tled to:

• An itemised bill if you dis­pute any charge levied by your ser­vice provider, even if you don’t pay for one each month;

• No­ti­fi­ca­tions warn­ing you that you are about to reach, or have reached, cer­tain lim­its per­tain­ing to your us­age, if your ser­vice provider is con­tracted to send these;

• A soft block pre­vent­ing you from in­cur­ring any fur­ther charges once you have reached any lim­its, if your ser­vice provider has un­der­taken to pro­vide one in terms of your con­tract; and

• An ac­cu­rate bill. If the ser­vice that mon­i­tors your us­age is de­fec­tive and feeds the wrong in­for­ma­tion to the billing sys­tem, your bill will be inac­cu­rate and can be dis­puted. The onus is on your ser­vice provider to prove that you did, in fact, in­cur charges and/or used the data for which you have been billed. the tech­ni­cal ser­vice di­vi­sion had pro­vided feed­back, but none was forth­com­ing.”

Then one night in April, Be­ley re­ceived no­ti­fi­ca­tion that his phone was us­ing data while it was be­ing charged. “In the space of about five min­utes, I got three SMS no­ti­fi­ca­tions that more than 200MB had been used.” He took a screen shot and im­me­di­ately dis­con­nected the phone from the power bank.

The same thing hap­pened later that month while he was driv­ing. “Out of the blue, I re­ceived a no­ti­fi­ca­tion that I had 98MB left; a minute later, I was out of data.”

Af­ter R7 162 was deb­ited from his bank ac­count at the end of April, and Vo­da­com had still not ex­plained his high data us­age or sent his ac­count for April, Be­ley en­gaged at­tor­ney Trudie Broek­mann, who spe­cialises in the Con­sumer Pro­tec­tion Act (CPA).

Un­be­known to him, Broek­mann was in the pro­cess of help­ing Sarah Lawrence, an­other Vo­da­com cus­tomer, with a sim­i­lar prob­lem. Vo­da­com even­tu­ally made a “bill­shock of­fer” to Lawrence, re­im­burs­ing her to the tune of R26 826. (Bill shock is “the neg­a­tive re­ac­tion a sub­scriber can ex­pe­ri­ence if their phone bill has un­ex­pected charges”, ac­cord­ing to Wikipedia.)

Be­ley says he went to Broek­mann be­cause Vo­da­com had failed to pro­vide him with the in­for­ma­tion, namely, proof of his ex­traor­di­nar­ily high data us­age and his April bill, to which he is en­ti­tled.

“I have been em­phatic all along: I need to see where the data was ac­tu­ally used. Vo­da­com has yet to show me,” Be­ley says.

He hasn’t had his de­vice checked, be­cause he’s sure there is no prob­lem with it. “If there were, my problems would have per­sisted beyond March and April. It makes no sense,” Be­ley says.

TARDY RE­SPONSE

It took a let­ter of de­mand and nine emails from Broek­mann to Vo­da­com be­fore Vo­da­com re­sponded in late July to Be­ley’s com­plaint.

The gist of the re­sponse: the cus­tomer uses a “data-in­ten­sive” iPhone and was sent SMSes no­ti­fy­ing him that he had ex­ceeded his data-bun­dle al­lo­ca­tion and would be billed at out-of-bun­dle rates. At­tached to the re­sponse was a re­port show­ing Be­ley’s data us­age from Fe­bru­ary to July. “All us­age billed is true and cor­rect and there­fore no credit is due to the cus­tomer,” the let­ter said.

Be­ley de­nies re­ceiv­ing SMS alerts per­tain­ing to his spend. The alerts he re­ceived were merely a re­flec­tion of data be­ing con­sumed – and not by him, he claims.

“I have a call limit on my ac­count. It is set at R2 997, and it ap­plies to the over­all in­voice amount on my Vo­da­com’s con­tracts, un­der the head­ing “manda­tory call lim­its”, state that “all Vo­da­com (Pty) Ltd sub­scribers are sub­ject to a monthly manda­tory call limit for the first seven months of the con­tract”.

Vo­da­com cus­tomer Mickey Be­ley was not no­ti­fied when the call limit was lifted af­ter seven months, and it was not brought to his at­ten­tion when he en­tered into the con­tract that the limit would be lifted af­ter seven months, as re­quired by the Con­sumer Pro­tec­tion Act (CPA), ac­cord­ing to Trudie Broek­mann, an at­tor­ney who spe­cialises in the CPA.

The first Be­ley learnt about the lift­ing of the limit was in an email from Vo­da­com to Broek­mann.

The email said that, “with re­gards to lock­ing of the line, when a new con­tract is en­tered into, a limit is placed on the ac­count for up to seven months as per the at­tached signed con­tract. The limit is then ac­count, and not just calls. Ac­cord­ing to Vo­da­com’s web­site, I am sup­posed to re­ceive SMS alerts when my us­age reaches 50 per­cent, 70 per­cent and 90 per­cent of the limit set. Vo­da­com claims these were sent to me. I would like to see proof that I re­ceived them. Fur­ther­more, the web­site says that ‘when you reach 98 per­cent of the limit amount, your line will be locked’. Why was my line not locked?”

And the us­age re­port from Vo­da­com does not prove how the data was used, he says. “It merely in­di­cates the amount of data and the date the data was used. I would like to see how the data was used; what web­sites or apps were ac­cessed.”

Broek­mann wrote back to Vo­da­com ask­ing for proof that the SMSes had been de­liv­ered to Be­ley’s phone. Vo­da­com’s fail­ure to de­liver the SMSes con­sti­tutes a breach of the con­tract, as well as the CPA, in sev­eral ways, she says. She has not re­ceived such proof, she says.

Broek­mann ar­gues that Be­ley is not li­able for charges from the date each month on which the re­moved once the re­ten­tion pe­riod has been reached, and should a cus­tomer wish to have a limit in place, the cus­tomer is re­quired to re­quest this ser­vice. No record can be found that a call limit was re­quested by the cus­tomer for each line.”

What this means is that Vo­da­com sets a limit on your calls for seven months, and then, with­out warn­ing (apart from the small print in the con­tract) “un­locks” your ac­count, and there’s no limit to the charges that you can rack up.

“This amounts to an am­bush of con­sumers, and doesn’t com­ply with the CPA, specif­i­cally, in that it’s un­fair, un­rea­son­able and un­just (sec­tion 48), prob­a­bly un­con­scionable (sec­tion 40), and the nec­es­sary warn­ing hasn’t been given to con­sumers (sec­tion 49), so it is prob­a­bly void (sec­tion 51(3)),” Broek­mann says. first no­ti­fi­ca­tion SMS should have reached him, be­cause her client did not know that he should re­duce his data us­age.

Vo­da­com’s fail­ure to lock Be­ley’s line was a ma­te­rial breach of con­tract, Broek­mann says. Be­ley was not li­able for any data charges levied af­ter the time that the line should have been locked.

In early Au­gust, Vo­da­com had still not pro­vided Be­ley with a copy of the con­tract and his in­voice for April 2016, which is also a breach of the CPA.

Broek­mann de­manded that Vo­da­com re­im­burse Be­ley for the ex­ces­sive data charges, plus in­ter­est, plus his le­gal fees of R3 000. Broek­mann also warned Vo­da­com that, if it failed to meet this de­mand by Au­gust 8, Be­ley would re­port Vo­da­com’s con­tra­ven­tions to the Na­tional Con­sumer Com­mis­sion (NCC) and the me­dia.

BILLING PROBLEMS

In early Au­gust, Broek­mann sent an­other let­ter to Vo­da­com on hear­ing that Vo­da­com had im­ple­mented a new ac­count­ing sys­tem dur­ing March/April and had ex­pe­ri­enced billing is­sues. “From the amounts sup­plied, it is clear that the data charges for March and April are un­usual, and no ex­pla­na­tion for this has been sup­plied by Vo­da­com,” she wrote.

One month later, hav­ing had no re­sponse from Vo­da­com, Broek­mann sent an­other email to the net­work, no­ti­fy­ing it that Be­ley had fur­ther proof of in­cor­rect billing.

On Septem­ber 7, he had checked his us­age (us­ing the *111# fa­cil­ity on his phone). It showed he had 1 757 min­utes of talk time and 4.26GB of data. When he checked the fol­low­ing day, at about the same time, he had 803 min­utes of talk time and 2.02Gb of data. For that to be ac­cu­rate, Be­ley would have to have been talk­ing on the phone for 16 hours be­tween the times that he took the read­ings – which he de­nies.

On Septem­ber 28, Vo­da­com sent Broek­mann an email ex­plain­ing the terms and con­di­tions that ap­ply to call lim­its, also known as “soft blocks”. Broek­mann says the Ts & Cs are un­fair, un­rea­son­able and un­just in terms of the CPA (see “Your Vo­da­com ‘call limit’ ex­pires af­ter seven months”, above).

Early this month, Broek­mann sent her 12th email to Vo­da­com, call­ing on the net­work to pay Be­ley’s le­gal fees, which had es­ca­lated to just over R17 000, fail­ing which the com­plaint to the NCC would be lodged and Be­ley would con­sider tak­ing the mat­ter to the Small Claims Court, she said.

The next day, Robyn Naidu, the ex­ec­u­tive head of le­gal af­fairs at Vo­da­com, re­sponded. “Purely as a ges­ture of good faith and with­out ad­mis­sion of li­a­bil­ity”, Vo­da­com would con­sider cred­it­ing Be­ley’s ac­count with a sum equal to the amount charged to him in ex­cess of his av­er­age data us­age for the two-month pe­riod in ques­tion. But Vo­da­com was not pre­pared to pay Be­ley’s le­gal fees, be­cause it was not at fault, Naidu said. And any NCC com­plaint or in­for­ma­tion to the me­dia would be de­fended.

Broek­mann re­sponded by email: “I am sur­prised that you of­fer no ex­pla­na­tion at all for the data con­sumed when my client con­nected his phone to his car’s Blue­tooth set, and when he charged it us­ing a Vo­da­com-is­sued charger. Charg­ing data fees in these cir­cum­stances cer­tainly amounts to wrong­do­ing. A fail­ure to re­spond be­fore var­i­ous threats are made and 12 emails sent cer­tainly jus­ti­fies le­gal fees – and my client does in­sist on re­ceiv­ing re­pay­ment of same.”

Be­ley has lodged a com­plaint with the NCC and at the time of writ­ing was about to lodge a com­plaint in the Small Claims Court.

VO­DA­COM TO IN­VES­TI­GATE

This week, af­ter be­ing in­vited to com­ment on a draft of this ar­ti­cle, Vo­da­com asked Be­ley for writ­ten per­mis­sion to ex­tract the de­tailed in­for­ma­tion he re­quested, “such as the URLs ac­cessed that con­trib­uted to the dis­puted data us­age”. The ex­tract of data takes at least 48 hours to com­plete, ac­cord­ing to By­ron Kennedy, the spokesper­son for Vo­da­com.

Vo­da­com apol­o­gised for the in­con­ve­nience caused to Be­ley, par­tic­u­larly the man­ner in which his data-in­for­ma­tion re­quest was han­dled at its fran­chise stores.

The ex­trac­tion of the in­for­ma­tion is in­te­gral to the in­ves­ti­ga­tion into Be­ley’s mat­ter and there­fore Vo­da­com was not yet in a po­si­tion to pro­vide sub­stan­tive com­ment, Kennedy said.

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