Access to Justice for Consumers of Telecommunications Services

Publié le lundi 2 novembre 2015

Marina Pavlović*

Consumer rights in telecommunications are of growing importance for Canadians, since access to telecommunications services is practically universal in Canada. Based on the 2015 CRTC Communications Monitoring Report, 99.3% of Canadian households have telephone access (either mobile wireless or landline) and 95.5% of Canadians have internet access with a download speed of at least 5Mbps. Telecommunications services are pervasive in the daily lives of Canadians regardless of their socio-economic status. In fact, the 2015 CRTC Communications Monitoring Report shows that the use of telecommunications is growing in the low-income population. As the Public Interest Advocacy Centre observed in its recent report on the affordability framework for communications services in the digital age, “citizens need to be able to participate fully in society—and they need communication in order to do so.” Telecommunications services are more than a consumer service—they serve as an important access point for social and economic participation, public legal education, content creation, and citizen engagement. Consider, for example, Legalswipe, an app that informs people about their rights during interactions with police, or the work my colleague Suzanne Bouclin is doing on facilitating access to justice to  homeless people through the use of communications technologies. When consumers experience problems with telecommunications services there is a spillover effect on the other aspects of their lives.

The Legal Problems of Everyday Life, a national survey exploring the nature and extent of legal problems experienced by Canadians, found that consumer issues were most prevalent at 22% incidence of all legal problems (preliminary results of the 2014 survey, conducted by the Canadian Forum on Civil Justice, indicate similar results). It also found that in the area of consumer rights, individuals largely resolve their problems through self-help. A 2011 Consumer Empowerment Survey conducted by the European Commission found “widespread ignorance” of consumer rights. If consumers are unaware of the very rights that are intended to protect and empower them, it is virtually impossible for them to perceive when their rights are being violated or effectively advocate for themselves in resolving consumer rights complaints. Consumer rights in telecommunications follow the trajectory of general consumer problems. The awareness of consumer rights in telecommunications is low, the incidence of problems is very high, dissatisfaction with the outcomes is also high, and a lot of problems continue to be unresolved, at costs to individuals and society.

Consumer rights in communications are defined in a complex and dynamic regulatory framework of federal and provincial/territorial legislation, policies and regulations, which are difficult to navigate.

However, the CRTC Wireless Code, which sets minimum standards of consumer protection for mobile wireless services, is one of the main regulatory instruments. One of its objectives is to “empower consumers to make informed decisions.” The 2015 Wireless Code Public Opinion Research, commissioned by the CRTC, found low levels of awareness of the Wireless Code: 48% of respondents did not hear about it and 31% vaguely heard about it. The survey did not test for knowledge of the substantive rights in the Wireless Code.

Wireless Code Public Opinion Research also found that 23% of respondents made a complaint, and that the complaints were predominantly (93%) made to the service providers, while only a small fraction of respondents (5%) complained elsewhere. According to the 2015 CRTC Communications Monitoring Report, the CRTC and the Commissioner for Complaints for the Telecommunications Services (CCTS) combined handled 44,000 inquires or complaints regarding telecommunications services. Assuming that 44,000 complaints to the CRTC and CCTS are those 5% of respondents who complained elsewhere, the number of Canadians who voiced their problems about their telecommunications services would be close to 900,000. That is approximately 25% of the Canadian population based on the 2013 census. This brings the number of complaints to slightly above the 22% baseline of all consumer problems. However, dispute resolution and consumer satisfaction/dissatisfaction literature (see Felstiner, Abel, and Sarat’s seminal article The Emergence and Transformation of Disputes: Naming, Blaming, Claiming), as well as Best and Andreasen’s

Consumer Response to Unsatisfactory Purchases: A Survey of Perceiving Defects, Voicing Complaints, and Obtaining Redress) posit that the number of consumers who experience problems is significantly larger than the number of those who actually voice their dissatisfaction.

44% of those who complained were satisfied with the resolution, while 43% were dissatisfied. The level of dissatisfaction among the “dissatisfied group” is rather high. Dissatisfaction among those consumers who were unable to resolve their problems or those who did not get appropriate resolution is quite high. Just take a look at this story from the Financial Post from last week, or this article from the Globe and Mail earlier this year, or this story from the Huffington Post, featuring a study from Open media a few years ago.

By now it is a truism that Canada has been experiencing an access to justice crisis, due to which those with legal problems face long delays and unsatisfactory avenues for obtaining redress. With a few notable exceptions, such as the recent BC Civil Resolution Tribunal, consumer rights have been absent from the access to justice reforms. Consumer problems are “little injustices,” as Laura Nader labelled them in her film and some of her written work, and while they affect the daily lives of citizens, they often fall through the cracks of civil justice reform projects because of their small monetary value, discrete areas of law that may be involved, and diffuse consumer interests. Consumer problems are the most prevalent problems, yet they have been markedly absent from access to justice reform. While the cost of individual consumer disputes may be low, these seemingly small disputes, when unresolved, not only pose costs to and negatively impact those who experience them, but also pose aggregate costs to society.

Meaningful access to justice in the area of consumer rights requires 1) consumer empowerment, so that the consumers can become more effective (and more satisfied?) self-helpers, 2) access to customized subject-specific, fast, expedient, efficient, fair, user-friendly, and low-cost dispute resolution mechanisms, and, when needed, 3) access to public aggregate litigation.

Professor Mary Cavanagh, from the uOttawa School of Information Studies, and I explore the first issue in our project Mapping the Front End: Legal Information Seeking Practices, which is supported by the Law Foundation of Ontario Responsive Grant Program. The project builds upon the Action Committee on Access to Justice in Civil and Family Matters’ expanded continuum of services approach that focus on the “front end” delivery of access to justice through “public legal education, information, [and] advice to assist self-help.” This involves two dimensions: 1) an evidence-based information needs, access, and uses framework and 2) an effective community-situated first response infrastructure assisting in strengthening people’s capacity for self-guided information seeking, access, and evaluation of a complex array of information sources. While there has never been access to more information, there is an increasing access divide caused by lack of adequate information literacy and self-advocacy. There are no frameworks and associated resource toolkits that teach people how to identify, access, and take advantage of information resources and services to empower themselves to perceive “injurious experiences” and take action to resolve legal problems in diffuse and often dizzying information landscape. With our project partners (uOttawa CLTSPIACCIPPIC, and ACORN Canada) we will provide tools to assist consumers to cut through the noise of the online information market place, connect with and use appropriate sources to empower them to better understand their rights, and self-advocate when their rights have been violated. We will be conducting a series of focus groups and interviews to explore these issues in the context of telecommunications services. Contact us at telecom.consIR[at]gmail, if you would like to participate.

Consumers need a centralized dispute resolution mechanism for complaints that cannot be resolved directly with service providers. If properly structured (OBSI is a cautionary tale), private-sector industry ombudsman schemes can be an effective tool for consumer access to justice. Australia has a Telecommunications Industry Ombudsman (TIO), the United Kingdom has OFCOM, and Canada has CCTS. CCTS was established by the telecommunications industry in 2007 as a response to the Order requiring the CRTC to report to the Governor in Council on consumer complaints and was approved by the CRTC in Telecom decision CRTC 2007–130. CCTS’s mandate covers home telephone; long distance telephone; wireless phone (voice, data, text); internet services (wireless and wireline); White page directories, Directory assistance, and Operator services; and, other forborne (unregulated) retail telecommunications services. CCTS administers the Wireless Code and the Deposit and Disconnection Code. The CCTS will also administer the Television Service Provider Code of Conduct, which is currently being developed to mirror the protections and objectives of the Wireless Code for the broadcasting providers.  During the week of November 3, the CCTS will undergo its second five-year review. The review focuses on the following issues, which are at the heart of its work as an ombudsman: the service an independent communications ombudsman provides to consumers; the consumer experience with the CCTS; public awareness of the CCTS; participation in the CCTS by communications service providers; the CCTS’s mandate; the CCTS’s structure; the CCTS’s funding model, and a future review. A number of service providers and consumer groups filed interventions and will be participating in the proceedings. Consumers of telecommunications services have a vested interested in the CCTS. The CRTC will open a public online discussion forum November 3–9 to facilitate broader public input about the CCTS. Follow the hearing live on the CRTC website or CPAC and provide your views on the CCTS. Follow @CRTCeng or @CRTCfra for further details.

Self-help and effective dispute resolution systems resolve a substantial number of consumer complaints. However, access to class proceedings is essential for resolving systemic issues. There have been a number of high-profile telecommunications class actions  recently, involving text message fees911 servicepre-paid telephone cards,  access feesbilling air time, and roaming charges. In order for class actions to achieve their objectives—judicial economy, access to justice, and behaviour modification–consumers’ access to class actions should not be restricted by arbitration clauses, forum clauses, or class action waivers. The New York Times is currently running a fascinating multi-part series on arbitration clauses and their impact on consumer access to justice. Arbitration clauses are not as prevalent in Canada, but they are still widespread, in particular in telecommunications. Consumer protection statutes in OntarioQuebecSaskatchewan, and Alberta (to a degree) prohibit the use of arbitration clauses in consumer contracts, although the effect of the prohibition varies depending on the scope of the respective statute. While the issue is a bit more nuanced, arguably arbitration clauses are also prohibited in common law after the Supreme Court decision in Seidel v Telus. Yet, arbitration clauses have not been eradicated from consumer contracts, in particular in telecommunications. Take a look at WIND Mobile, Terms of Service, Rodgers Terms of Service, Acceptable Use Policy and Privacy Policy and Arbitration Protocol, or Shaw Cable Joint Terms of Service. More work should be done to ensure that terms of use respect consumer protection laws and more advocacy is needed to strengthen the legislative and judicial prohibition of these restrictive clauses. We may soon get answers to some of these questions. The Supreme Court of Canada is currently considering a leave to appeal in Douez v Facebook, which deals with the relationship between forum selection clauses and class action.

To borrow the term from the great Roderick Macdonald, access to justice is a “multifaceted phenomenon,” that includes both substantive and procedural law and both reactive and proactive (preventive) action. Consumer rights should be protected by a tailored access to justice approach that may require public-private partnerships. Consumers should have a strong say in how this access to justice initiatives takes shape.

*Marina Pavlović is a law professor at University of Ottawa and a founding member of the Centre for Law, Technology and Society. She is a consumer-groups appointed director on the Board of the Commissioner for Complaints for Telecommunications Services, and a co-principal investigator (with Mary Cavanagh) of the LFO funded project Mapping the Front End: Legal Information Seeking Practices.

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