Operators providing a publicly available ECN or ECS must provide certain standard contract conditions to consumers in a clear, comprehensive and easily accessible form (eg, details of price and tariffs, duration of contract, etc). Operators must notify customers one month in advance of any proposed changes to their terms and conditions and of their right to withdraw without penalty if they do not accept the changes. Failure to do so may be prosecuted as a criminal matter as failure to comply is an offence. It is a defence to establish that reasonable steps were taken to comply, or that it was not possible to comply, with the requirement. ComReg also has the choice of bringing a civil action for non-compliance to the High Court. ComReg has not specified a medium to be used for contract change notifications, but provides that notifications must be presented to customers clearly, unambiguously and transparently, and must include certain minimum information. ComReg has initiated enforcement actions regarding a number of alleged breaches of the rules and most recently issued notices of non-compliance against eir, Vodafone, Virgin Media and Sky in 2018 for failure to notify customers in the prescribed manner as required under the Universal Service Regulations.
ComReg has also issued a number of requirements in relation to bills and billing mediums. By way of example, consumers must have a choice about whether to receive paper bills or alternative billing mediums, and a paper bill must be provided free of charge where access to online billing is not possible.
ComReg’s enforcement powers in relation to consumer contracts derive from the European Union (Consumer Information, Cancellation and Other Rights) Regulations (following the EU Consumer Rights Directive, ComReg re-iterates in its most recent Strategy Statement and that it intends to use the powers provided for by these regulations to improve consumers’ experience of contracts and switching). For example, ComReg has recently (in 2017 and 2018) notified Yourtel, Vodafone, Virgin Media, Three and Sky of findings of non-compliance with respect to the operators’ obligations under the Universal Service Regulations including implementing a contract change without notifying customers of the change and of their right to withdraw without penalty from such contract if they did not accept the modification. ComReg successfully brought a prosecution against Yourtel in February 2018 for failure to respond to a statutory request during its investigation into consumer complaints.
In July 2015, ComReg notified eir of a finding that, during the period November 2011 to July 2015, eir did not comply with the transparency obligation imposed in respect of its Bitstream product. It did not publish on its website sufficient information to identify and justify any differences between the services and facilities set out in the wholesale broadband access reference offer and the comparable services and facilities that eir provided to itself during this period.
In relation to the premium rate services (PRS) sector, ComReg has initiated investigations against operators and published a finding in March 2015 of non-compliance against Dragonfly Mobile Ltd with the PRS Code of Conduct and breaches of its licence resulting in €390,000 being refunded to 12,000 end-user consumers. It has also issued a notice of non-compliance against Zamano Limited in May 2017. ComReg also withdrew the allocated 57,741 and 57,575 short codes.
Finally, ComReg and the CCPC have each stepped up enforcement action in relation to consumer issues.
ComReg brought enforcement action against a number of service providers (eir, Virgin Media, Vodafone, Yourtel) in relation to the incorrect charging of customers for electronic communication services. The cases were brought in the Dublin District Court and total fines of €76,000 (Yourtel), €11,000 (eir) and €11,500 (Vodafone) were imposed. Each of the companies committed to putting remediation plans in place to prevent such issues arising in future. In July 2018, Eircom was fined €23,500 and received 10 separate criminal convictions in relation to 10 counts of incorrect charging of customers for electronic communications services.
During 2015, the CCPC (under its consumer law powers) initiated a number of enforcement actions by way of compliance notice against certain providers of telecommunication services (ie, Vodafone, Three, eir, Meteor, Virgin Media) for failing to make available information to customers, including the right to cancel distance contracts and the right to return the contract goods or services. No fines were applied to the respective undertakings to the extent that compliance was demonstrated within 14 days of the notice.
In 2016 ComReg has increased its enforcement and after an investigation imposed a €255,000 fixed penalty notice on Virgin Media under section 85 of the Consumer Protection Act 2007 for failure to provide 26,046 of its customers with a contract in a durable form in contravention of the Consumer Information Regulations 2013. ComReg investigated Virgin Media as a result of complaints from Virgin customers who claimed the lack of a contract in durable form made it difficult for the affected Virgin Media customers to recognise and see exactly what they were being charged for by the company. This was the first time that ComReg has imposed fixed penalty notices (FPNs). ComReg has the power to issue FPNs under the Consumer Protection Act 2007 for breaches of the Consumer Information Regulations 2013.
In 2017 ComReg initiated an investigation into the way in which Vodafone notified its customers of changes to their roaming terms and conditions (to include an automatic opt-in provision). ComReg determined Vodafone incorrectly notified its customers of this change and imposed a fine of €250,000 and forced Vodafone to remediate its customers to the tune of €2.5 million. Vodafone also made binding commitments not to use ‘auto opt-ins’ in future.
In 2018, Sky made a settlement and paid ComReg €117,000 in relation to an alleged failure to provide customers with a contract on a durable medium, and breaches of their right to a cooling-off period. As part of this settlement, Sky agreed to take remedial action to prevent any further breaches of these consumer obligations.
In 2018, ComReg brought proceedings against Yourtel in relation to billing customers for a service that it was alleged was never received. In February 2019, Yourtel consented to orders before the Commercial Court requiring it to cease its contraventions.
In November 2018, ComReg announced Formal Dispute Resolution Procedures for End-Users of Electronic Communication Services and Networks, introducing structures and timelines for disputes in relation to any regulations under which ComReg has the power to resolve disputes. This will apply to disputes that remain unresolved by the Service Provider for more than 40 working days, and will come into force on 2 September 2019.
Back to top