Dear OFCOM, can we play this game too?

I have recently been copied in to a couple of issues that some of my customers have had with BT plc. When I say BT plc, I mean the legal entity that is company 1800000, called British Telecommunications plc.

BT plc practice a form of corporate schizophrenia where they pretend to be more than one legal entity. Worrying this madness has spread to other organisations, notably the Ombudsman service that provide ADR (Alternative Dispute Resolution) for BT plc.

One complaint was against the BT Retail department of BT plc where an order caused another line to be broken, and the matter went to ADR. They case concluded with confirming "BT Retail sent the details correctly to Openreach", and basically that Openreach screwed up meaning case closed as ADR does not cover Openreach!

The other case is where The Ombudsman Service would not even take a case where Openreach were blocking a number port but would not tell anyone why, i.e. what "mismatch" existed, and BT Retail said there was no mismatch. They said they do not cover Openreach.

In one case, even though admitting that he (i.e. Openreach) is company 1800000, he kept insisting that Openreach was not a communications provider (a clear lie) and to contact his communications provider (which is company 1800000 and hence who my customer was talking to!).

This is, of course, nonsense. Openreach is BT plc; The contract these customers have is with BT plc;  The failure is by BT plc; The dispute is with BT plc; The ADR scheme covers BT plc. This needs sorting.

So the question to OFCOM really is whether this sort of stupidity pretend different companies is actually allowed. Can a company pretend that its different departments are different and hence pass the buck, blame another department, and get out of any liability even under ADR by doing so - a sort of internal force majeure. Is that actually valid?

If it is, then BT sort of get away with this crap, shame, but it also presumably means that A&A can tell CISAS that only our "sales department" are covered by ADR as only they sell to the public, and all other departments are not covered by ADR. This could greatly mitigate risk of any future ADR cases and allow us (unethically?) to "pass the buck" internally between departments with no liability.

If it is not, then can OFCOM please ensure that ADR schemes know that they represent a "legal entity" as a whole and not just parts of it, and that BT plc cannot blame itself for its own failings and get away with it!

Do courts agree with this lunacy?

In the mean time I have suggested, not as formal legal advice, just friendly advice, to both customers that they simply go for a county court claim against British Telecommunications plc, company 1800000. If someone from "BT Retail" turns up and says he cannot speak for "Openreach", then great, they can ask the judge for summary judgement as the defendant has not turned up. If someone from "Openreach" turns up and insists there is no contract the judge can be shown the contract with company 1800000, and again make a summary judgement as the defendant is claiming not to be the party to the contract! If both "BT Retail" and "Openreach" turn up, then one of them gets to take the blame for the error and again the judge makes a judgement against British Telecommunications plc company 1800000. I really doubt a judge would accept corporate schizophrenia as a defence or find it at all amusing.

OFCOM consultation on ADR

ADR (Alternative Dispute Resolution) has been a pain in my side, even though we have only had one case. The injustice of that one case in so many ways really hit home for me, and made me re-think my views on justice and fairness.

OFCOM have done a periodic review, and we have replied (here).

Given the importance we place on providing the service we sell, being clear on what we sell, and importantly of the customer service we offer (just see ispreview reviews) it is annoying that we have to contend with ADR at all.

ADR is designed to be unfair, i.e. biased to one side (the consumer) from the start by ensuring fees are paid by ISP regardless of validity of the claim. But it is more so in that the ADR provider has power to decide their jurisdiction, and make up rules as they wish and impose payments. They even impose costs and payments when they agree the ISP is not in breach of contract (a "win" in any "real" court).

There is a lot to be said for ensuring customers have a means to tackle problems with their providers. Ironically, where we (or my family) have been on the other side, arguing with a telco, we have also found ADR lacking! It failed to provide a way to resolve a dispute even though charging the telco!

One of the biggest issues I see of late is that OFCOM propose to allow ADR cases where the customer is unhappy over compensation under new OFCOM proposed automatic compensation. The automatic compensation only applies in some specific cases (e.g. faults must be "total loss of service") which are sensible. But making it possible for someone to go to ADR because they feel they deserve compensation in other cases, or more than prescribed amounts, makes it a waste of time making those rules. ADR costing an ISP over £300 even if they win means customers can just demand amounts up to that and know many ISPs will cave rather than pay more to prove they are in the right. What is worse is that this is beyond what the law requires OFCOM to insist ISPs offer by way of ADR.

We'll see how OFCOM react. We believe ISPA have similar concerns.

OFCOMs plan for automatic compensation for broadband faults

OFCOM have published their proposals for automatic compensation for broadband and phone line faults (here). It is a consultation and we are replying. Even if it goes ahead it will be some time before it comes in to force.

The proposals have some good ideas, and as a consumer it really helps to understand where you stand.

The key aspects are pretty simple...

1. Delay fixing a total loss fault, £10 per day (after end of second working day after fault report)
2. Delay providing service (if promised a date), £6 per day
3. Missed appointment, or cancelled/changed within 24 hours before, £30

This is simple, easy to understand, and not that daft...

The good news for us, as an ISP, is that all three of these are basically someone else's problem. Appointments to visit a customer for any reason are not by us as such, we don't go to customers, we arrange through carriers, which arrange with Openreach. So missed appointments will be 100% down to Openreach. The same is true for delays in provision, and delays in total loss fault repair in most cases. We're careful not to promise an installation date, so the delayed provision pretty much bypasses us, but we may as well pay out if we get compensation from carriers.

The fault stuff is good for us as it is "total loss of service". This is important. There are a lot of grey areas, and a lot of cases of vague faults. We spent a lot of time arguing with carriers about cases of low level packet loss, unexpected throughput issues, extra latency, intermittent service and frequent drops. None of those are "total loss". All of these are, thankfully, out of scope. A total loss of service is generally pretty clear cut. So OFCOM have got their head screwed on there.

In theory a total loss of service could be us, but unlikely for such a thing to ever last for two working days. So basically, this is all down to carriers and Openreach. Yay!

To be honest I like the simplicity of it all. Well done OFCOM. But...

Carriers not forced to pay ISPs!

The biggest issue is that whilst it is clear that every one of these cases is someone else's problem it is us that have to pay out. It is right that we pay out, we have the contract with the end user. But OFCOM think we can negotiate with carriers to get the same compensation from them so not be out of pocket if not our fault, which it won't be. OFCOM clearly have no fucking clue. We may be lucky - we may find the big players manage to beat up BT Wholesale, Talk Talk Business, etc, and they do in fact offer us the same compensation. Given that we struggle to negotiate for BT Wholesale to actually have a process to even fix faults in the first place, let alone define what a fault is, I do not hold out a lot of hope. It it works, and we get the same compensation for the same things, we are fine. We will have an admin cost of recognising and automating the payouts, and checking that we get the compensation from carriers, and disputing with carriers when they have not paid us (there will be disputes, guaranteed). That is a cost, but overall this will be OK, we are good at this stuff. Fingers crossed.

Broadband depends on a phone line!

As you probably know most broadband services needs a working phone line. If the phone line breaks then the broadband cannot work. This is pretty basic stuff, but OFCOM think most services have same provider for both. That may be true on aggregate but for small ISPs it is not, and most of our lines have someone else providing the phone line part. Oddly the phone lines we provide are out of scope as they don't allow calls, so if we did a line for someone else and it failed (killing their broadband), we would have no obligation to pay compensation for the phone line being dead. Crazy or what?!

The way it is worded now, someone can complain of no broadband to us. We look, see PSTN fault, and say "report to phone line provider". That is all we can do. We have no contract with the part of BT doing the phone line. We cannot do anything to fix it. Forcing us to pay money won't change that! The end user has to contact their phone line provider. But according to the proposed rules, if the broadband is not working in two working days the we have to pay out £10 a day until it is, even though not our fault and we have no means to fix it. There is not even an obligation on the end user to report the fault to the phone line provider. They could sit on it, raking in £10 a day, from us, forever!

There has to be an end to payouts at some point?

OFCOM decided on no cap on daily payouts. I understand, but ultimately we could find there are services we cannot provide. The checker may be wrong, the line may be just too long. In rare cases even a fault may not be possible to fix. In these cases there is the option for us, or the customer, to cancel the order or cease the service. But the wording as proposed does not clarify that this stops the daily payments. If we accepted an order and gave a date (based on carriers telling us), and then cannot provide, could we be paying £6 per day forever? Scary!

Using ADR if not compensated - bad idea!

OFCOM propose that ADR should cover cases where a customer thinks automatic compensation is due and not paid. This is a huge problem.

OFCOM have sensible limited faults, for example, to "total loss", which is pretty clear cut. But a customer with an intermittent fault or other speed issue, that takes time to fix, may want compensation. It will be a very easy mistake to make, or a tricky argument over "total loss of service". It could even be someone with a router problem, and needing a new router, feels we should pay when no compensation under this scheme is due.

The problem is that even with many days delay the compensation is way less than the circa £350 cost of an ADR case (even if we win). So the customer simply has to say they feel compensation is due and threaten ADR. Any ISP will have to pay up else pay more for ADR even if they win the case.

So the limit to "total loss" is moot once you factor in the threat of ADR. However, assuming we get compensation from carriers they won't pay us for such cases and we cannot take them to ADR.

Ultimately this extends the compensation to cover every fault, not just total loss, but intermittent and customer router issues, and the ISP pays out with no way to "improve the service" which is what this whole scheme is trying to do.

Post takes time!

The normal process for most faults is to start by eliminating end user equipment. The carriers make us do this, and it is not totally daft. So usual process is send a router out, which takes a working day, at least.

OK, so we do that and it turns out that it really is the broadband at fault. So we report to carrier. But we have already wasted one working day on sending a router.

Even if we negotiate with carriers to pay compensation to us, they will not allow for the wasted working day in such cases, even though they insist we replace equipment first.

This means we have to change our processes and report a fault to carriers at the start, then send router while they are saying "no fault, book an SFI", and then we say, yes, a fault as we have now tried a new router. All a bit iffy, but process needs working out. I can see the carriers being pissed over this as it gives them at least one fewer working days to fix things.

It costs money!

At the end of the day, if we have to pay out more because of all of these gaps we have more costs, and have to consider higher prices. If the carriers have to pay us more to pay out, they may charge us more, and we have to consider higher prices. At the end of the day the consumer pays. Well done with that OFCOM!

"Alternative" Dispute Resolution

We have ADR in the telecoms industry and it is creeping in to other areas from what I can see.

My issue here is simple, why "alternative"? Surely that simply means the "original" is not fit for purpose? If that is so, why not fix the "original" rather than making an "alternative".

So what is the "original"

Well, to for most civil low level disputes that ADR may cover it is the county courts system under the small claims track.

I have used the courts may times. I have seen them work, and (in my opinion) go wrong. I have been the one making the case, and the defender. I have learned a lot of lessons. In some ways, the fact that I have had to learn lessons is an issue. It should be a process the novice can handle without learning lessons from the past.

The process, and I mean the "small claims process" here,  has some really good features.

• Fixed costs, starting very low, in the tens of pounds
• Loser pays (up front if making the claim, so costs known and spent in advance)
• Lawyers can get involved but their costs are not claimable (and they are looked down on)
• Judgement is binding (either way)

There are however issues. It is normally a court hearing, in a location where one of the parties may have to travel at some cost (what with so many contracts over the Internet and not face to face). This itself is a problem, and daunting.

There are some things to help - the county court at Reading, and I assume many others, have a system of free (once you have made a claim) arbitration. This is a one hour phone call (so no travelling) alternating the parties, to try and resolve the issue.

This is huge - it removes the travel and the scary court appearance. It will not always work, but I bet it works a lot - anyone got stats on that?

But if that fails the process is not hard. It may seem scary, it is just you, the other side, and a judge, in a room (an office), and discussion. That is all. Not really a problem (apart from travel).

Can we make it better?

The arbitration is good, but we could do more. How about a remote (email) based arbitration as next step. Each party emails arguments and evidence to the judge to consider. If the parties accept that ruling then all done, if not then a court appearance.

I would be in favour of this, even if it has a small additional fee over the telephone arbitration.

Why is ADR bad?

The only ADR we have had was a fucking nightmare. We were not even allowed to see the details of the case against us - what the hell? That is mental and would never be allowed in a court. The judgement was made with no discussion and no appeal. It was final.

Also ADR for ISPs, and others, is cost one-sided, only the ISP pays either way. It allows customers to threaten ADR with no risk even when they know they are wrong. The cost is way more than the county court, by a factor of around 10. How is "alternative" justice so much more expensive than "real" justice? ADR only makes sense if it is cheaper.

My proposal?

Well, the emailed resolution to add to the phone call arbitration for a start.

In some cases we could err on the side of the consumer, maybe having some limits on cost that are more skewed towards ADR. My suggestion is end user must have a risk and up front cost of maybe £5 or £10, so as to remove the frivolous claims. Then maybe up to a certain level for large claims that is all their cost, with company paying the rest (tens of pounds).

Even so, I think cases need to allow counter claims. If ISP says "they have not paid bill", that should be valid. ISP pays fee to counter claim, and adds that to claim if they win. At present ADR is one-sided and cannot act against end user. Why have any one-sided system?

Conclusion

We could make the "real" dispute resolution better and remove the need for "alternative" dispute resolution in so many areas. Let's do that!

ADR (Otello) from the other side (EE)

Having dealt with Otello, or whatever they are called now, from the ISP side, and it ending very badly with them breaching their own terms and basically screwing us, I have now seen ADR with them from the customer side.

It is not me personally but my son, who had mobile service with EE. He had a SIM for him and his girlfriend and ceased the later, and paid all on Direct Debit. He is young, and he does not pay attention, which is fair enough - Direct Debit is perfect for him.

However, after a couple of years when he should have only been paying one mobile contract he finally clocked that he was paying two - a couple of weeks out of phase, both similar amounts. Direct Debits a couple of weeks out of phase. And no, surprisingly, not the SIM for his girlfriend but a third SIM that started when he first got a contract.

The problem is, every time he saw a bill or DD, it looked a reasonable amount, and it did not click it was twice a month not once a month. He is known for not even opening post. I remember when I was young and I don't hold it against him. I think he is learning - the world is there to screw you if you let it!

So he got on to EE who decided to handle it via their Fraud department, took ages, did not tell him anything, and got nowhere. I serious doubt any fraud. I suspect a simple cock up by EE sales droids. Eventually he got around to complaining again, and again they did the same. This was getting silly, so I suggested ADR.

Now, EE have no evidence that he asked for an extra SIM. They have no proof of delivery. They have no record of the SIM ever being used in a phone or making or receiving any calls. Nothing to say he has a contract with them apart from the fact he has paid (by Direct Debit).

ADR conclusion - even though EE have no evidence of any contract? They decide in EE's favour?!?! They say it is odd he did not notice earlier or claw back the Direct Debits.

I suggested he write back and say that if "clawing back the Direct Debits" would swing the case in his favour, he can do that, for all payments right now if they like. (DD rules allow that if no physical signed DD mandate). He did not write that, and sort of gave up.

If he did not have to worry over credit rating then simply clawing back all DDs would force EE's hand and they would have to take him to court with no evidence. He has to worry about credit ratings. A sad sate of affairs really for all of us.

Anyway, ADR is clearly a waste of space, so next steps:

1. Data Protection Act Subject Access Request to EE for all evidence of any contracts formed with him (call recording, web logs, signed contract) or any usage of the SIM or even proof of delivery.
2. Assuming none exist, letter before action for county court.

At the end of the day if they cannot prove a contract exists, even by implicit "use of the service provided" I think they are going to lose. Well worth a try and trains him on the ways of DPA and county courts, and not a lot to lose in trying.

I'll try and post an update once we make progress. This is around £1000 so worth his time, even if he loses, to learn the processes.

ADR and broadband switching

Thank to ISP review for drawing my attention to Call for Evidence on Improving the Consumer Landscape and Quicker Switching issued by BIS.

As anyone that follows my blog knows I have some "views" on ADR! I feel like a dark part of my life has come back to haunt me just typing those three letters. I may go and lie down for a bit...

However, apart from a lot of scathing suggestions, I have made one concrete proposal that there should be some sort of on-line service to allow complaints to be registered to an ISP/telco. This would then automate the escalation to ADR, and allow the ombudsman access to the debate and evidence. It would avoid any confusion over whether something is a "formal complaint", the date of complaint, the content of the complaint, and if it has already been resolved or not.

Evidence re ADR (PDF).

The other point of interest is consumer switching. What is crazy is that OFCOM just finished a process of consultation and change to move broadband switching from 5 working days to 10 working days lead time, and gaining provider led. BIS want 7 working days!

Again, I have come up with a concrete proposal - one that avoids the need for a trade off between a long lead time to avoid slamming, and a short lead time for convenience. Simply add a positive confirmation message via losing provider (just as there is a reject via losing provider now) allowing order to move back to earlier completion date (even next day). This solves a lot of problems in one go, even the issue of fixing mistakes.

Evidence re Switching (PDF).

Let's see what they say.

P.S. If you want to submit evidence, the first email address in the BIS document does not work.[fixed]

Accused of lying?

There are fun logic puzzles, such as the paradox "This statement is a lie", and of course more subtle variants of that theme.

But I have just come across a rather fun "complaint".

The complaint is that we accused someone of lying. Apparently, accusing someone of lying is a bad thing, and really bad "customer service". Obviously anything where the customer is not happy is, by definition, bad customer service. However, personally, I don't see a problem with accusing someone of lying, if, in fact, they have lied. I have a problem with lying.

But it struck me as an almost "clever" sort of complaint, as there is really no way to answer the complaint without it being true!

If I investigate and find that we did in fact accuse the person of lying, well, then it is true.
If I investigate and find that we did not accuse them of lying, as is the case here, then my finding is now accusing them of lying about the accusation of lying!

Either way, we end up accusing them of lying. Catch 22!

Oh well, I will have to agree that we accused them of lying or are now accusing them of lying. I'll not dispute in any way that we have or are accusing them of lying and not dispute in any way that it was bad customer service. After all, I would not want a "dispute" that might need "resolving".

I should say well done to the customer for coming up with a self confirming complaint though.

Do I give in to blackmail?

We have a customer with a dispute, and of course we want tor resolve it. I'm not going to give any personal details here, obviously...

The dispute is relatively simple, he asserts that we told him 100GB/mon for Home::1 would be fine for a house of 5 adults all separately watching netflix every night. Unsurprisingly he used 100GB in 10 days. Home::1 has a minimum term of 6 months and a very reasonable early termination charge.

Now, let me say right off, if we did say that to him, we will sort something out for him - more allowance for 6 months or leaving with no early termination fee, or whatever. If we screwed up and said something wrong, we will take responsibility for that. We have ticketing for emails and record all calls, so it should be simple to work that out. Sadly he is being a tad vague on times or numbers or names of people he spoke to. Hopefully we can confirm this.

He had a huge long debate with our accounts department over what is "average usage". We explained what we say on the web site and ordering pages and what OFCOM have reported about average usage for broadband. He seems to think he is "average", which is clearly not the case, but all irrelevant - we sold him 100GB.

The problem is that he is now talking of ADR (Alternative Dispute Resolution).

Obviously we are going to try and resolve this, and ideally come to an agreement without involving ADR, but at the end of the day ADR is a huge problem with this and massively impacts negotiations.

The early termination charges are much lower than the cost of ADR even if we only look at the fee we have to pay (and ignore all the time and effort) and even if ADR finds we are completely correct and we are not ordered to pay anything or do anything. This means the threat of ADR is effectively blackmail. The customer can simple be as difficult as he likes; insist we said things with no evidence of that; and demand he can leave with no early termination charge "or else, ADR".

What concerns me is we may find the call recording and prove we did not say that, and so have done nothing wrong, but he can still demand ADR and still put us in this annoying position of choosing to cave in to blackmail or pointlessly go through ADR - a process which would not "resolve" the dispute.

If we cave in, we save money compared to ADR, but what is to stop everyone who changes their mind just invoking "ADR", making a total mockery of simple fair contract terms.

Very frustrating. We'll see what we can do to resolve it anyway, and what evidence we can find. In the long run we have have to think of other ways to package services as clearly "early termination charges" may effectively be un-enforceable on consumer products. I'll try not to get stressed this time.

P.S. One way this may be resolved in future is with routers getting cheaper, migrations getting cheaper, people already having FTTC, and, of course, cheaper back-haul bandwidth. Eventually there will be no need for any minimum term and no reason for someone that simply "misunderstands" not to simply move on to their next ISP as complete resolution of the issue. We can but hope.

P.P.S. In all the years I have been blogging, you can see disputes really are rare - I would not expect to blog every disagreement, but an actual unresolved dispute is incredibly rare and I think I probably have blogged every one so far - making me wonder even more why the hell ADR even exists.

Customer Service and ADR

Rather annoyingly I am losing sleep over the whole ADR thing again, but this time it is hypothetical debate by email with CISAS and not a case. This does, at least, mean we can sort ground rules out before getting a case.

The issue has come up over the types of dispute they can handle, which includes "billing", "service" and "customer service". The latter includes things like being rude to a customer on the phone. The debate started when I asked how they decide customer service issues and what they are, and they used the phrase "duty of care". I asked where it came from and they reference the implied term to use "reasonable skill and care" in providing a service. They have now said that this reference to the sale of goods act comes from OFCOM, which is a slight surprise, but does not change things.

I am surprised that providing a service (e.g. broadband) with reasonable skill and care could be taken as having to provide a level of "customer service". It seems a stretch to me, but that is, apparently, OFCOMs interpretation, so we'll work within that rather than arguing it.

Just to be clear - we want to provide good customer service. We understand that billing issues need correcting, and that a failure to provide service to the agreed level deserves the agreed level of compensation, but "customer service" comes down to keeping customers, getting referrals and getting good reviews. It is, in my view, not acceptable that someone can say we were rude to them and demand hundreds of pounds in compensation else blackmail us by threatening ADR which would cost us hundreds even if we "win". Let us be judged by our customers and their actions, not by CISAS.

It seems to me that they have several issues regarding "customer service" complaints and how they resolve them.

1. The Comms Act allows a complaint from someone who is not yet a customer, as it redefines customer to include someone simply seeking a service. CISAS agree that such complaints could only be about "customer service" as no bills or services yet. But the reference for the "duty of care" to provide "customer service" is an implied contract term, and there is no contract yet, so no duty of care. Ooops.

2. Even when someone is a customer, this duty of care comes from an implied term which OFCOM interpret in a particular way. However the sale of goods act allows such implied terms to be changed or removed by explicit terms in the agreement. So we do. We make it clear that we'll use reasonable skill and care to provide the actual service, but that "customer service" is not part of the contract. To ensure compliance with unfair contract terms legislation we even draw this to the attention of the customer when ordering. CISAS have now conceded that we can do this in the contract, but have not said what they would do about it (e.g. not take on customer service cases).

But then there is another issue which CISAS are still struggling to get their head around. I am still debating this one. It is the fact that they resolve disputes.

3. As a simple matter of policy, we agree customer service complaints. If someone says we were rude, we agree, and apologise. If they say they had poor customer service, we agree, and apologise. There is no disagreement, no difference of opinion, no dispute to resolve.

CISAS talk of whether or not our response to a customer service complaint "resolves the dispute to the customer's satisfaction" and cannot seem to grasp the concept that in such cases the complaint is not actually a "dispute" in the first place, and so the question of whether or how it is "resolved" does not come up. Also, being not a dispute, it is not a question of whether the dispute is within CISAS scope, or even how that is decided. If not a dispute, then there is no decision to make.

We're waiting for them to understand the concept of a "non dispute" and the fact that a "Dispute Resolution" service is not relevant to a non-dispute.

So, I'll keep you posted. At least we have some progress that the reference for customer service is apparently defined by OFCOM as an implied contract term which can be explicitly removed from the contract. That alone is massive progress. I wonder if other ISPs will follow suit on that. As I say, I am more than happy for our customers to judge our customer service in reviews and recommendations, but not via ADR.

Oh, no ADR for me!

Well, I complained about the complaint handling process, which is something I can complain about according to the Comms Act, and I complained about the service, which is again something I can complain about, but this is what the Ombudsman service had to say!

Shame they were not so dismissive when someone complained about A&A.

Duty of Care

I am having some interesting discussions with the ADR provider we now use, CISAS, over a particular aspect of the Communications Act and the service they offer.

Specifically, they can handle disputes in three specific areas, being the bills we have issued, the actual communications service we provide, and "customer service".

This last point is a tricky one for many reasons. I am querying it specifically with them, mainly because the Comms Act covers complaints made by prospective customers. After some discussion CISAS do agree that someone who is not actually buying service yet could only make a "customer service" complaint as they would have had no bill and not had a service to complain about.

So the issue of complaints over "customer service" needs more careful understanding. This is where it gets fun.

A&A have very explicit contract terms covering compensation for poor customer service. Specifically, there is none. A failure in customer service harms our reputation, but we don't compensate for it. We don't charge for the "customer service" aspect of what we provide either. CISAS did come up with examples, such as being rude to a customer or prospective customer, as being poor customer service.

Now, my view on this is simple. Customer service is all about making the customer happy. If a customer perceives that they have received poor customer service, then, by definition, they have. It does not matter who is "right". At the end of the day we would have failed to keep them happy. Customer service is all about perception of the customer.

So, if anyone claims to have received poor customer service then we will, of course, try and address that to improve what we do, and apologise, but fundamentally we have to agree that we did indeed provide poor customer service. So, there is no dispute. We would be 100% agreeing with the customer service complaint. And as CISAS only handle "disputes" there can be no case to take to CISAS if we agree all "customer service" complaints. I am awaiting CISAS's comments on that one.

Obviously someone may say "I had poor customer service, compensate me for that" to which the answer is "the contractually agreed compensation for poor customer service is zero". If they don't agree then we have a "contract dispute" and not a "customer service" dispute, which CISAS do not handle. Again, waiting for them to answer on that one.

But then I did ask more about this, and particularly covering prospective customers. CISAS said the arbitrator consider our "duty of care" when providing customer service. I asked where this comes from, and their answer surprised me. They say "This 'duty of care' derives from the Supply of Goods and Services Act 1982, section 13 of which places an obligation on all businesses that supply services to customers to "carry out the service with reasonable care and skill". This duty extends to the level of customer care provided. This duty also applies regardless of what the Terms and Conditions of a particular provider's contract states, and cannot be abrogated."

Well, that is a an odd one. For a start, that Act specifically relates to a contract for services having an implied term to carry out the service with reasonable care and skill, but for prospective customers we do not (yet) have a contract, so we have no obligation to use reasonable skill and care (yet). The obligation is specifically part of the contract. Waiting for an answer on that!

Also, the Act specifically allows implied terms to be explicitly agreed out of the contract. Now, the reason they comment on this duty of care not being abrogated is that we pointed out our terms say we will be rude and unhelpful. Well, the Act they quote allows us to vary those implied terms in our contract. We have asked about that too.

And finally, the Act covers there service we are contracting for, e.g. "broadband". It does not cover "customer service". Even if it did, "customer service" is not a communications service, so not covered by CISAS anyway.

I have to wonder what would happen if a separate company handled all marketing and pre-sales enquiries. One that does not sell communications services, just finalises the contract between the customer and A&A, and as such does not need to be a CISAS member. In that case any complaint from a prospective customer is rejected as the party giving the poor "customer service" would not be A&A and would not be a CISAS member.

So it sounds like they are struggling to find the basis for considering "customer service" issues at all, let alone the question of "customer service" for someone that is not a customer yet!

It makes sense - good customer service has never been a contract or compensation thing - it is a matter of reputation and good business. I reserve my right to be rude to a customer or prospective customer, even if I never expect to do so.

From what I can see we have no duty of care to provide "customer service". The Comms Act does mean we have to have a complaints procedure relating to customer services issues, which we do as we receive the complaint, agree it, apologise, and pay zero compensation.

But if CISAS cannot back up their claims that there is a "duty of care", then what then? Will they stop taking customer service complaints?

I'll post more when they have stopped wriggling. It is much more fun when we don't have an actual ADR complaint in progress!

Just to add - I am not saying we want to provide poor customer service - obviously. We try to provide the best customer service possible. What I am saying is I do not want someone to be able to blackmail me to the tune of over £300 because they say we offered poor customer service, especially if they are not even a customer! At the moment, that risk exists, and I feel strongly that it should not. It just makes no sense.

ADR from the other side

Well, now that AAISP no longer do voice SIMs, I have a GiffGaff SIM for my personal use. It is a while since I have simply had a normal mobile contract like this for myself.

So, I asked them on their support web page if they do ACR, as required by section 11(3) of The Privacy and Electronic Communications (EC Directive) Regulations 2003.

Before anyone starts talking of just pressing the red button (or whatever you do on an iPhone), the regulations require that the "subscriber" has the option to reject such calls, and the subscriber is not the same as the "user" and may be nowhere near the phone. This basically means the telco have to offer ACR (Anonymous Call Rejection). Thankfully the ICO seem to agree. I pursued this back in 2003 and got nowhere, apart from ICO confirming that the mobile companies were in breach and refusing to "exercise their enforcement function" when requested to do so by myself.

Now we have ADR, so this seems a perfect chance to try ADR from the consumer side. I really hope GiffGaff are not using the same bunch I had the misfortune to deal with last. Mind you, if they do, having been so unbelievably biased towards the customer last time, I would hope they are not hypercritical enough to treat me differently.

What is interesting is that I am almost seeing the point in ADR now! I can't for A&A, but for GiffGaff, so far, they are a shambles.

• I asked if they do ACR.
• They said no.
• I asked for a deadlock letter as this seemed to be the end of the matter and a deadlock, so they said to email a complaints email address.
• I did, and they replied saying they would answer in 5 days
• They did not
• I checked the old ticket raised which said it is closed, cannot be updated and to raise a new ticket. They had marked it "solved" which is clearly not the case.
• I raise a new ticket, explaining old ticket was closed, and asking again for deadlock letter.
• After a day or so I get a reply saying this is covered by an old ticket and to reply to that old ticket, the one I cannot reply to now.
• I have asked again, now for the forth time, for a deadlock letter, and added a complaint about being given the run around.

So, will be interesting to take them to ADR now.

We'll see if ADR is, as it seems, a simply way to blackmail any telco in to caving in on any point that may otherwise cost them up to £350.

It will also be interesting to see what happens if the arbitrator orders them to actually provide ACR. If they can, then why the hell did they not before, i.e. 10 years ago when a law required them to. The regs do not even say it has to be a free service.

If they cannot, then what then? Would ADR insist on compensation? And what happens when, next month, I point out that the law still says they have to do ACR and take them to ADR again? Or hundreds of other people take them to ADR?

I have no idea how this is going to pan out - it seems crazy that I can, as an individual, cause a telco this much hassle. We'll see how it goes.

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Update: Just got this from GiffGaff (3rd Nov)

"The law you have quoted is indeed correct, however, this law also states the anonymous call rejection is only required where it is available. As you have been advised already we do not offer this service and therefore it cannot be provided."

Err, no, the law says "Where a facility enabling the presentation of calling line identification prior to the call being established is available". Which means where I get CLI at all, which I do.

They also say "Our ADR provider is Offcom who can be contacted anytime through their own web site."

WoW!