The
Telecom Consumers Protection Regulations, 2009
[Gazette of Pakistan
S.
R. O. 300(1)/2009.--- In exercise of the powers conferred
under clause (o) of sub-section (2) of section 5 read with clause (c) and (m)
of sub-section (1) of section 4 of the Pakistan Telecommunication
(Re-organization) Act, 1996 (Act XVII of 1996), the Authority is pleased to
make the following regulations:---
PART-I
Preliminary
1.
Short title and commencement--(1) These regulations shall be
called the “Telecom Consumers Protection Regulations, 2009”.
(2)
These Regulations shall be applicable from the date of gazette notification.
2.
Scope and applicability.—These regulations shall apply to all Operators to
promote and protect the rights and interests of the Consumers of
telecommunication services in Pakistan
3.
Definitions.--(1) In this regulations unless the
context or subject otherwise requires:---
(i) “Act”
means Pakistan Telecommunication (Re-organization) Act, 1996;
(ii) “Advertisement”
means and includes the following modes of marketing adopted by Operators to
attract the Consumers:---
(a)
by displaying of notices, banners,
billboards, play cards etc.;
(b)
by means of catalogue, brochures,
pamphlets etc.;
(c)
by exhibition on films or
photographs; or
(d)
by electronic or print media or
through any other means;
(iii) “Authority”
means Pakistan Telecommunication Authority established under section 3 of the
Act;
(iv) “Code
of Commercial Practice” means an agreement of set of rules, which defines the
behavior of Operators who undertake to be bound by it in relation to one or
more Commercial Practices;
(v) “Commercial
Practice” means any act, omission, course of conduct, representation or
commercial communication (including advertising and marketing) by an Operator,
which is directly connected with the promotion, sale or supply of a Service in
Consumers, whether occurring before, during or after a commercial transaction
in relation to a Service;
(vi) “Consumer”
means any natural or juristic person who is in an actual or potential user of
publicly available telecommunication Services from an Operator and not the
reseller of such Services;
(vii) “Operator”
means a license holder authorized by the Authority to establish, operate and
maintain the telecommunication systems and to provide Service(s);
(viii) “Professional
diligence” means the standard of special skill, care and conduct which an
Operator may reasonably be expected to exercise towards Consumers commensurate
with honest market practice or the general principle of good faith;
(ix) “Regulations”
means all or any regulations issued by Authority
under provisions of the Act including these Regulations;
(x) “Rules”
means all or any rules issued by the Federal Government under Section 57 of the
Act;
(xi) “Service”
means telecommunication service as defined in the Act; and
(xii) “Transactional
decision” means any decision taken by a Consumer whether it is to act or to
refrain from acting, concerning:---
(a)
whether, how and on what terms to
purchase, make payment in whole or in part for, retain or dispose of the
Service, and
(b)
whether, how and on what terms to
exercise a contruactual right in relation to a Service.
(2)
The words and expressions used herein but not defined shall have the same
meanings as are respectively assigned to them in the Act and the Rules.
PART-II
Service Providing, Interruption and Disconnection
4.
Service Provisioning.--(1) Consumers shall be able to
select the Operator as well as the available Services as per their own choice.
(2) The Services shall be provided
to Consumers in a fair, transparent, efficient and non-discriminatory manner.
5. Service Interruption.--(1)
Customers shall be entitled for uninterrupted Services at all times.
Provided
that in case of planned network system enhancements, updates or upgrades, the
Consumer shall be given thirty (30) days prior service interruption notice by
the Operator.
Provided
further that in the case of unforeseen technical interruptions/faults the
Operator shall inform the reasons for the interruption and expected time of
restoration of Services to the Consumers by any means listed in sub-regulation
(2) of regulation 7.
(2) Operators shall take all
reasonable and necessary steps in providing Consumers with adequate
arrangements/concessions in case of lengthy outages or Service interruption for
which due notice was not served.
6. Withdrawal of Service.—Operators
may withdraw the provisions of any Service to Consumers, provided such
withdrawal is approved by the Authority and thirty (30) days prior notice is
given to Consumers.
7. Suspension and Disconnection of
Service.--(1) Subject to prior communication
of suspension and disconnection policies to the Consumer, an Operator may
suspend or disconnect a rendered Service in accordance with their policies.
(2) Without prejudice to the
foregoing provisions of sub-regulation (1) above, Operators shall give fifteen
(15) days prior notice to Consumers in case of suspension or disconnection of
Services, not less than once by any of the following mans:---
(i)
personal service;
(ii)
registered/courier mail;
(iii)
telephone;
(iv)
fax transmission;
(v)
electronic mail;
(vi)
Invoice/bill; and
(vii)
Short Messaging Service.
Provided
that the Operator shall clearly communicate the reaons for
suspension/disconnection to the Consumer along with the actions required on the
part of that Consumer to avoid such suspension / disconnection.
(3) The Operator shall not suspend
or disconnect a Service to a Consumer on account of which the Consumer has paid
all the dues, even if the Consumer has defaulted in the payment of the Operator
in relation to some other Service(s).
Provided
that an Operator may suspend/disconnect all connections of an individual
Service to a Consumer, which are subscribed by that Consumer in his own name
and the default is not cleared for any one of such connections.
(4) The Operator shall not deny
access to emergency numbers to Consumer, where the Service is suspended for any
valid reason.
(5) The Operators shall restore
Services to a Consumer within twenty four (24) hours from when the Consumer has
taken all remedial steps, to the satisfaction of the Operator, in order to
rectify the matter resulting in such suspension or disconnection by the
Operator.
PART-III
Commercial Practices
8. Commercial Practices.--(1)
Operators shall not use unfair Commercial Practices wien selling Services to
Consumers.
(2) A Commercial Practice shall be
regarded as unfair if:---
(i)
it is contrary to the requirements
of Professional Diligence;
(ii)
it is a misleading action under
provisions of sub-regulation (3);
(iii)
it is a misleading omission under
provisions of sub-regulation (4); and
(iv)
it is listed in sub-regulation (5).
(3)
A Commercial Practice is a misleading action if:---
(i) it
contains false information, and is therefore untruthful or in any way,
including overall presentation, deceives or is likely to deceive the average
Consumer in relation to one or more of the matters listed below, and it causes
or is likely to cause him to take a Transactional Decision that he would not
have taken otherwise:---
a. the existence or nature of the Service;
b. the
main characteristics of the Service, such as its availability, validity,
benefits, risks, after-sale consumer assistance, complaint handling, date and
method of provision, delivery, fitness for purpose, usage, quantity,
specification and results to be expected from its use;
c. the
extent of Operator’s commitments and motives of Commercial Practice;
d. the
tariff or the manner in which tariff is calculated and the existence of a
specified tariff advantage;
(4)
A Commercial Practice is a misleading omission if, in its factual context,
taking account of all its features and circumstances and the limitation of the
communication medium, it omits, hides or provides in an unclear,
unintelligible, ambiguous or untimely manner such material information that the
average Consumer needs, according to the context, to take an informed
Transactional Decision and thereby causes or is likely to cause the average
Consumer to take a Transactional Decision that he would not have taken
otherwise.
(5)
The following Commercial Practices shall be regulated as unfair in all
circumstances:---
(i) Falsely
claiming that a Service is able to facilitate winning ingames of change; and
(ii) Requiring
a Consumer who wishes to claim on a insurance policy to produce documents which
could not reasonably be considered relevant as to whether the claim was valid,
or failing systematically to respond to pertinent correspondence, in order to
dissuade a Consumer from exercising his contractual rights.
9. Code of Commercial Practice and
Service Contracts.—(1) The Operators, who are required
to take approval of the Authority regarding Code of Commercial Practice and
standard contract of service under their respective license, shall publish
their Code of Commercial Practice and standard contract of service for the
information of Consumers.
(2) The unfair terms used in the
contract concluded with a Consumer by any Operator shall not be binding on the
Consumer.
(3) Following is the indicative and
non-exhaustive list of items, which may be regarded as unfair if it has the
object or effect of:---
(i)
inappropriately excluding or
limiting the legal rights of the Consumer against the Operator in the event of
total or partial non-performance or inadequate performance by the Operator of
any provision of the Service contract;
(ii)
making an agreement binding on
Consumer whereas provision of Services by the Operator is subject to a
condition whose realization depend on his own will alone;
(iii)
requiring any Consumer who fails to
fulfill his obligation to pay a disproportionately high sum in compensation for
restoration/rectifying the breach;
(iv)
authorizing the Operator to dissolve
the contract on a discretionary basis where the same right not granted to the
Consumer;
(v)
permitting the Operator to retain
the sums paid for Services that are not yet supplied by him and where it is the
Operator himself who dissolves the contract;
(vi)
automatically extending a contract
of fixed duration without the consent of the Consumer;
(vii)
irrevocably binding the Consumer to
terms with which he had not real opportunity of becoming acquainted before the
conclusion of the contract;
(viii)
enabling the Operator to after the
terms of the contract unilaterally without a valid reason unless the Operator
is required to inform the Consumer with reasonable notice and the Consumer is
free to dissolve the contract;
(ix)
providing the tariff of Services to
be determined at the time of delivery, or allowing the Operator to increase the
tariff without giving the Consumer the corresponding right to cancel the
contract if the tariff is deemed too high by the Consumer;
(x)
obliging the Consumer to fulfill all
his obligations where the Operator does not perform his;
(xi)
giving the Operator the possibility
of transferring his rights and obligations under the contract where this may
serve to reduce the guarantees for the Consumer without his agreement; and
(xii)
exclude or hindering the Consumer’s
right to take legal action or exercise any other legal remedy, particularly by
requiring the Consumer to take disputes exclusively to arbitration which are
not covered by legal provisions, unduly restricting the evidence available to
him or imposing a burden of proof which according to the applicable law is not
valid or should lie with another part to the contract.
(4) The Authority may, on its own or
on the request of Consumer(s) or Operator(s), review the terms and conditions
of the Code of Commercial Practice and service contract.
(5) Subject to the approval of the
Authority, the Operators may also amend the terms of the Code of Commercial
Practice and conditions of the service contract.
10. Tariff and Billing.--(1)
The Operators shall ensure:---
(i)
that no Advertisement shall be
launched or tariff shall be charged for any Service to Consumers without
approval of the Authority, if such approval is required.
(ii)
that Consumers know the exact costs
for all Services prior to purchase, clearly expressed without any false or
misleading information; explicitly disclosing the tariff rates, unit of
charging, applicable taxes etc. in their Advertisements;
(iii)
that the effective tariffs for all
Services are in accordance with the tariffs as published in Advertisements;
(iv)
that in any even, not to
pre-activate any tariff on Consumer, optional in nature, without the consent of
that Consumer.
(2) All Operators shall provide
detailed billing information to their Consumers in accordance with license
terms and conditions, Regulations/Directives issued by the Authority, Code of
Commercial Practice and service contract as approved by the Authority.
PART-IV
Redressal of Consumer Grievances
11. Nature of complaints.—Notwithstanding
anything contained in any procedure provided in any law for the time being in
force, all Operators shall entertain complaints of Consumers in relation to any
Service, including but not limited to the following issues:---
(i)
Misuse of Service
(ii)
Quality of Service
(iii)
Illegal Practices
(iv)
Poor Services
(v)
Provision of Service
(vi)
Misleading Statements
(vii)
Non-Provision of Service
(viii)
Mobile Number Portability related
complains
12. Complaint Handling Mechanism.--(1)
All complaints, at the first instance, shall be filed with the Operator against
whom the complaint has any grievance.
(2) For the purpose of stated above,
every Operator shall establish and maintain a Consumer complaint handling
mechanism.
(3) The complaint handling mechanism
shall be widely published and responsive to Consumer complaints in a
comprehensive and effective manner.
13. Modes of filing complaints with
Operator.--(1) Every Operator shall establish a
round the clock Consumer care call center having a dedicated helpline number
for lodging of Consumer complaints.
Provided
where a complaint chooses to lodge a complaint in writing through a facsimile,
e-mail, internet webpage form or the post, guidance in this regard shall Cti be extended by the Operator through the consumer
manual.
(2) The charges for Consumers when
accessing the helpline number shall not be exceed the tariff determined by the
Authority.
14. Procedure for handling of
complaints.—(1) Upon receipt of every Consumer
complaint, the Operator must register the said complaint to the complainant
through the allocation of a unique complaint number, to be communicated to the
complainant along with the specific timeframe within which the Operator shall
redress Consumer grievance as soon as possible but not later than three working
days.
(2) An easy to access escalation
path shall be set up by the Operator, if required by the Authority, to be
followed by the complainant where the complainant is not satisfied with the
redress of the complaint or where no response has been received from the
Operator when such complaint is lodged at the first level with the Operator.
15. Complaints.--(1)
In the event that the complaint is not satisfied with the redressal of the
complaint provided by the Operator, including but not limited to instances
where the Operator fails to respond under sub-regulation (2) of regulation 14
to the complaint within three working days, the complainant shall then file the
complaint with the Authority as specified in sub-regulation (2).
(2) All complaints under these
Regulations shall be registered with the Consumer Protection Directorate,
Pakistan Telecommunication Authority Headquarters, Islamabad or its Zonal
offices where applicable by the Consumers personally or through their
representative(s) by post, courier, online or email at complaint@pta.gov.pk
in the manner specified in sub-regulation (3).
(3) Complaints to be filed under
sub-regulation (2) of regulation 15 of these Regulations must include, at
minimum, the following:---
(i)
the name and address of the
complainant;
(ii)
the name and address of the Operator
against whom the Consumer has grievances;
(iii)
the nature of complaint and brief
statement of facts;
(iv)
a copy of service contract or
agreement pertaining to the complaint, if available;
(v)
proof of previous
correspondence/complaints filed with the Operator; and
(vi)
specific relief or remedy sought.
(4) Upon receipt of every Consumer
complaint, the Consumer Protection Directorate or respective Zonal office will
acknowledge the said complaint as soon as possible but not later than three (3)
working days through the allocation of a unique complaint number to be
communicated to the complainant.
(5) Upon admission of the complaint,
the same shall be forwarded by the Consumer Protection Directorate or the
concerned Zonal office to the Operator for resolution of the same or for reply
in writing, as the case may be.
(6) The Operator shall communicate
the redressal status report of the complaint, as directed by the Authority,
simultaneously to the concerned Consumer and the Authority within the time
limit as specified by the Authority.
(7) Where the Operator is required
to submit its reply on a given complaint, the Consumer Protection Directorate
or the concerned Zonal office, as the case may be, shall examine the Operator’s
reply and dispose off the complaint with issuing
appropriate order.
(8) If no reply is received from the
Operator within the given deadline, the Consumer Protection Directorate or
concerned Zonal office, as the case may be, may call the Operator and/or the
Consumer for a hearing and shall pass an order accordingly, which shall be
binding on both the parties.
(9) In the event that a complaint
filed under sub-regulation (2) of Regulation 15 reveals general deficiency or systemic
inadequacy in the provision of Services adopted by the Operator, the Operator
shall take remedial steps in respect of all Consumers and intimate the same to
the Authority.
(10) Without prejudice to the
foregoing the Authority may on its own, initiate appropriate action against the
Operator, for any activity or activities directly or indirectly, adversely
affecting the interest of the Consumers.
PART-V
General Conditions
16. Confidentiality of
Information.--All Operators or employees of
Operators shall maintain confidentiality of information about Consumers and
shall ensure that no information about Consumers use of network or Service is
made available to any third person other than what is printed and published in
services directories, agreed by the Consumer or required by any applicable law.
17. Publication of Consumer’s
mannual.--(1) All Operators shall publish a
consumer’s manual and shall advertise the same, through print or electronic
media, within ninety (90) days of the notification of these Regulations, which
shall contain the following details:---
(i)
customer services helpline;
(ii)
pre-requisite for new connection;
(iii)
applicable tariff and charges;
(iv)
quality of services standards; and
(v)
procedure for resolution of
complaints.
Provided that all Operators commencing Services after the
notification of these Regulations shall implement the conditions of
sub-regulation (1) within 90 days of commencement of Services.
(2)
The manual under sub-regulation (1) of regulation 17 shall be available at all
outlets of the Operators and accessible to Consumers on the Operator’s website
which shall be updated from time to time.
(3)
Operators shall after the notification of these Regulations include the
consumer manual with every sale of their Service.
18. Directions of the Authority.--All
directives, guidelines and orders etc., issued by the Authority in pursuance of
these Regulations shall be binding on the Operator and the Consumers.
19. Force Majeure.--In
an even or circumstances which is beyond the reasonable control of the Operator
including, without limitation, acts of God, insurrection or civil disorder, war
or military operations, national or local emergency, acts or omissions of
government, or of any competent authority, industrial disputes of any kind,
fire, lightning, explosion, flood, weather of exceptional severity, acts or
omissions of person for whom the Operator is not responsible, strikes, lock
outs the Operator shall not accountable for that period to a Consumer with
respect to any Service
ERUM
LATIF,
Deputy
Director (Law & Regulations).
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