ICASA’s Code of Conduct Regulations were published in the Government Gazette on 7 December 2007. These Regulations require
- the development of a Consumer Code of Conduct for a licensee; and
- a revision of the licensee’s service contract and billing, collection and credit practices.
The objective of the Regulations is to set acceptable standards of conduct for licencees in their dealings with consumers & to protect the rights of consumers in the electronic communications market.
The Regulations are applicable to all ECS and ECNS licensees to the extent that they deal with consumers
(i.e. natural persons including end-users who use and/or receive for their own use the service and/or products of a licensed service).
While the Regulations are not of a particularly high quality (and contradictory and confusing in places), licensees should take the time to ensure they are compliant and develop their own Consumer Code of Conduct.
Basic compliance obligations
Licensees are required to develop their own code of conduct based on and in compliance with the Code of Conduct Regulations. Staff will need to be trained to ensure this code of conduct is followed and there are requirements as to the display and availability of the code.
Licensees will need review their service contracts and their billing, collection and credit procedures insofar as these apply to consumers to ensure that they comply with the specific provisions of the Regulations.
What must be in your Code of Conduct?
Licencees are required to make the following “key commitments” to consumers and must display a copy of the section of its code of conduct setting out these “key commitments” at its business service centres and business outlets as well as on its website.
The “key commitments” set out in the Code of Conduct Regulations are as follows:
“All licencees must:
- Act in a fair, reasonable and responsible manner in all dealings with consumers;
- Ensure that all services and products meet the specifications as contained in their licences and all the relevant laws and regulations;
- Not unfairly discriminate against or between consumers on the basis of race, gender, sex, age, religion, belief, disability, ethnic background or sexual orientation;
- Display utmost courtesy and care when dealing with consumers;
- Provide consumers with information regarding services and pricing;
- Where requested provide consumers with guidance with regard to their customer needs;
- Keep consumer’s personal information confidential; and
- Advise consumers of their right to refer complaints to ICASA.”
These key commitments to a large extent mirror good business practice and existing legal requirements. The real compliance aspect here is to ensure that these “key commitments” are properly displayed as required by the Regulations.
A licensee’s Consumer Code of Conduct must inform consumers about their rights in terms of the services they provide. The Regulations state that these consumer rights include (but are not limited to):
- A right to be provided with the required service without unfair discrimination;
- A right to choose the service provider of their choice;
- A right to receive information in their preferred language;
- A right to access and question records and information held by the service provider;
- A right to the protection of the consumer’s personal data, including the right not to have personal data sold to third parties without the permission of the consumer;
- A right to port a number in terms of applicable regulations;
- A right to lodge a complaint; and
- A right to redress.
Although the Regulations do not explicitly state this, licensees are advised to include contact details or other information which consumers can use to exercise these rights where relevant. This could include, for example, a complaints number and e-mail contact and instructions or a link to instructions on how to port a number.
Some notes on the rights themselves:
- The rights which have been italicised above can simply be stated without further information being provided, e.g. you have the right to choose your service provider.
- The example given in the previous bullet indicates that some of the rights don’t have a lot of substance.
- A right to receive information in a consumer’s preferred language does not mean licensees have to provide information in languages outside of those which may represent their current or target markets. Where a licensee receives a request for information in a language they do not have the information available in then that licensee must decide whether to find a way to communicate or advise the consumer that they are not able to do so.
General Obligations imposed by the Regulations
Provision of information
Licensees are required to provide consumers with ready access to accurate and easy-to-understand information relating to
- Their broad range of services / products on offer
- Tariff rates applicable to each service offered
- Terms and conditions
- Payment policies
- Complaints handling procedures, and
- Relevant contact details.
This information does not need to be set out in the licensee’s Consumer Code of Conduct itself.
The Code of Conduct Regulations prohibit any licencee from providing any service to a consumer for a charge, fee or other compensation unless the price and terms and conditions of the provision of such service have been made known to the public and ICASA.
- Make this information available for inspection at their offices during business hours;
- Make this information available to anyone who requests it at no charge
- Provide this information on its website; and
- Provide the pricing details within 30 days of commencing a service.
Licensees are further prohibited from offering, presenting, marketing or advertising any tariff plan in a manner that may be misleading.
Requirements for a licencee’s service contract
The Code of Conduct Regulations set out a number of guiding principles which must be observed by licencee’s in the drafting of their service contracts to be entered into with consumers.
The service contract must:
- Be written in plain and understandable language.
- Include clear provisions relating to at least the following:
- Nature of the contract;
- Minimum duration of the contract;
- Any applicable payment for early termination – i.e. if a contract is terminated prior to any minimum duration;
- Notice period for termination; and
- Manner of notice of termination.
Licensees should review their consumer service contracts to ensure that all of the above points are set out therein.
Licensees must also
- inform consumers about changes to the terms and conditions of a contract within a fair and reasonable period, and
- provide a consumer with a copy of the written terms and conditions immediately or as soon as is reasonably possible after conclusion of a contract. Where a contract is entered into telephonically the licensee must provide a copy of the written terms and conditions within 7 (seven) working days after entering into the contract.
The Code of Conduct Regulations set out some general provisions regarding privacy of consumer personal information and the obligations on licencees to protect such privacy.
Licensees are required to ensure that the personal information of consumers is only used for the purpose permitted or required and, subject to the exceptions below, may only report or release such information to the consumer who provided it.
Consumer information may only be released to a third party where
- the licencee has written permission from the consumer to do so;
- the licencee is directed to do so by an order or court;
- the licencee is briefing an accredited debt collection agency during the debt collection process;
- the licencee is briefing its auditors for the purpose of auditing the licencee’s financial affairs; or
- such release is required or permitted by an applicable law.
These rules regarding the processing of consumer information should be set out in the Code of Conduct.
Licenseess should review their internal procedures regarding the protection and processing of personal information to ensure compliance with the above.
While the Regulations do not define what it to be regarded as consumer information, licensees are advised to treat any identifying information received from consumers as being personal information. This would include: names, addresses, contact details, ID Numbers and the like.
Charging, Billing, Collection and Credit Practices
The Code of Conduct Regulations set out detailed rules with regard to payment and related practices undertaken by licencees with regard to consumers. Licensees should note in particular the rules applicable to defining a suitable degree of consumer protection regarding billing complaints.
Licensees are required to:
- clearly communicate billing processes to consumers;
- set out procedures in their bills;
- inform consumers at the outset, if applicable, that credit referencing I risk assessment will be applied; and
- provide a simple explanation to consumers of how the credit referencing system operates. This information must be provided in accordance with the provisions of the National Credit Act No. 34 of 2005 and any other applicable law and/or regulation.
The “Applicable rules in defining suitable degree of consumer protection regarding billing Complaints” are as follows:
- Where the consumer lodges a billing complaint, the complaint handling process must be guided by the following general principles:
- Licensees must not disconnect the service of the consumer while the investigation of a disputed portion of a bill is still pending;
- Licensees must reach a determination regarding the billing complaint and communicate it to the complainant within fourteen (14) working days;
- Licensees must not disconnect the service until the Licensee has notified the complainant about the results of their investigation and the final decision on the complaint;
- Licensees must not take adverse collection procedures or assess late charges and/or penalties while the investigation of a disputed billing is still pending;
- Licensees must not require the consumer to pay the disputed bill in full pending the investigation of the complaint.
- Licensees must ensure that the consumer is informed well in advance about time for payment and the possibility of disconnection in the case of non-payment within a certain period before they disconnect him/her.
Licensees should review their service contracts and internal procedures so as to ensure they are in compliance with the rules set out above.
Promotional Marketing, Advertising and Sales Practices
The Regulations contain a general obligation on licencees to ensure that advertising and promotional material is not misleading and complies with the Advertising Standards Authority’s (ASA) Code of Conduct and any other relevant codes.
Licencees are required to clearly state the steps which they will take to remedy a defective product or service and “must bear the interests of consumers in mind” when formulating such steps. Licencees are further required to “put in place alternative measures” for the period where a defective product is being repaired.
Complaints handling, resolution and escalation procedures for customers
Licensees must develop and prominently display their complaints handling procedures and must specify that consumers have the option to refer complaints to ICASA.
Operational/implementation and evaluation arrangements
The Code of Conduct Regulations require that licensees ensure that their employees are trained with regard to the contents of their code of conduct. They must also ensure that they take steps to ensure that consumers are aware of the existence of their code of conduct and its contents by, amongst other things, prominently displaying an abridged (i.e. a highlights package) copy of their code in their premises.
What languages must the code be available in?
The licencee’s code of conduct must be available in printed form in English and one other official language and must also be provided in any other official language where a consumer requests this.
A copy of the “key commitments” section of the licencee’s code of conduct must be displayed at all of the licencee’s consumer service centres and business outlets as well as on its website.
An abridged copy must be kept on the licensee’s premises.
Licencees are also obliged to provide a copy of their code of conduct to any consumer where it is requested.
Consequences of non-compliance with the Code
Any failure to comply with the provisions set out in the Code of Conduct Regulations will constitute an offence. ICASA may imposed penalties as set out in section 17H of the ICASA Act.