Optus toughens up mobile contract
Last December Optus incurred customer wrath, effectively torpedoing mobile access to cheap international VoIP services by charging them at international rates.
At the time, Optus insisted that:
International calls within the meaning of your Optus Mobile Standard Form of Agreement for all Timeless and Cap plans includes calls that re-route or divert to international numbers.
CSP Central asked Optus to tell us where the SFoA said that. We couldn’t be sure – because the document is a confused mish-mash – but as far as we could tell it said no such thing.
Apparently Optus didn’t feel too sure of its grounds, either. So it has bolted on a powerful, unbalanced new contract term that is sure to attract the interest of consumer regulators who have unfair contract terms legislation in their armory. Today, that’s only Victoria. On 1 January 2010, it will be every Australian State and Territory, and the ACCC.
The new Optus contract term
The following little gem has been added to Optus’ standard terms:
5.2A Blocking Calls
Effective 12 August 2009, we may block access to a number (other than an emergency service number) if we reasonably require this to be done for technical, operational or commercial reasons.
Seems pretty rude, to us
It’s the ‘commercial reasons’ that trouble us most.
It’s a ‘commercial reason’ to block a particular number that it relates to a service that competes with Optus.
It’s a ‘commercial reason’ to block access because the number represents a call type that is unprofitable for Optus.
For many purposes, the word ‘commercial’ can reasonably be translated as ‘money making’. That’s not a cheap shot. ‘Commercial real estate’ is real estate used for money making purposes. ‘Commercial loans’ are financial arrangements made to facilitate money making activities.
So substitute that for ‘commercial’ in Optus’ new term and you get:
5.2A Blocking Calls
Effective 12 August 2009, we may block access to a number … if we reasonably require this to be done for … money making reasons.
It’s a pretty unbalanced and unreasonable power to have, unless Optus can explain what legitimate interest it is necessary to protect.
Unbalanced and unreasonable equals illegal
Under the new national unfair contracts law, due to take effect on 1 January 2010, a term in a standard form contract that is (a) seriously unbalanced and (b) not reasonably necessary to protect a legitimate interest is void. And the onus of showing the legitimate interest will lie on the party that benefits from it.
Back in January, we were asking Dear Optus, please show us where the supposed definition of international calls could be found. Now, we’re asking What legitimate interest of Optus justifies a power to block access to numbers for unspecified ‘commercial’ reasons ?
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3 Responses to “Optus toughens up mobile contract”
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I saw elsewhere that they are saying that customers can exit their contracts without penalty if they feel they don’t like the terms, so I think they way the law works, that if you get the opportunity and stay, you become bound to the new terms?
I would imagine they would be hoping that not many people opt out of their contracts.
Yes, that should be the offer they make to all affected customers.
But there are some issues around that. First, is an ‘affected customer’ someone who actually uses VoIP services, or does a wider class qualify i.e. users who say ‘I haven’t used those services, but I might have. I have now lost that option, so I am worse off.’ ?
The second issue will be, after the new unfair contracts law comes in (and it already applies in Victoria) that it makes no difference whether the customer has agreed to a particular term. If the term is severely imbalanced and the reason for it isn’t justifiable (under law, not in the service provider’s sole opinion) then the term will be void.
But under what’s called the ‘TCP Code’, yes they can currently lock customers into a contract change if they first offer them penalty-free cancellation rights.
I have contacted optus on several occasions about the above contract change, they will only terminate the contract at no change if you have actively used a service that allows you to call a mobile number, and be redirected to a international call. Also people who have banded their contracts together (home phone, broadband and mobile phone contract) cannot terminate the contract with out paying the exit fee’s associated to their home phone and broadband, as those contracts were not modified.
All conversation have led to “please contact our legal department” My issue is around Fair use. Calling cards have been around for years, and offer the same functionality as a Mobile connected VOIP service. I think a challenge of this contract amendment in court would be a interesting case. This change is allowing Optus to have an monopoly over their existing customer base, and is preventing the consumer from Choice.
Another interesting point is with new model’s of phones such as the iPhone and Nokia N97′s consumers can now use VoIP services such as SKYPE from their mobile device, however telco’s have blocked access by through 3G so the consumer is restricted to using a WiFi connection when available. Rather than getting on the bandwagon of newer technologies such as VoIP and offing consumers choice and allowing healthy competition to drive down cost to the consumer the telco’s seem to be more concerned at driving profit through unfair practices than giving the consumer a Fair go.
Its such a pity that Australian legislation and laws are so far behind our European counterparts that companies such as Optus can abuse our basic human rights of choice; and can act in a unethical way with out any legislative guidance. However the new national unfair contracts law is a step in the right direction…