Back to skool for TCP drafter

Whoever drafted the TCP Code needs some lessons in basic English grammar. The Code is afflicted by ambiguities that could have been avoided with a little knowledge of grammar and good drafting.

Ironically, the rules about international roaming provide two good examples of words failing in the Code. We say 'ironically' because clarity around roaming is such a red hot topic just as the Code goes live.

We'll explain why the TCP Code lets itself down on this key point.

A short grammar lesson

  • We use adjectives, and adjectival phrases, to describe and qualify nouns.
  • We use adverbs, and adverbial phrases, to describe and qualify verbs.
  • We use conjunctions to link words, phrases and clauses.
  • But when we use adverbs and conjunctions, or adjectives and conjunctions, together, we can create ambiguity.

An example

Let's say I ask you to bring hot coffee and ice cream to the picnic. You'd be sure (from the context) that I wanted:

  • (a) hot coffee and (b) ice cream,


  • (a) hot coffee and (b) hot ice cream.

The context makes it clear that 'hot' is intended to qualify 'coffee' but not 'ice cream'.

Another example

But what if I ask you to bring fresh milk and cream to the picnic? Obviously, I want the milk to be fresh and the cream to be fresh.

Again, the context provides the answer. But this time, it's the opposite of the first case: 'fresh' is intended to qualify both 'milk' and 'cream'.

A third, not so easy, example

This time, I ask you to bring along some Greek dips and wine. But do I want Greek dips and Greek wine? Or Greek dips and any wine I like?

Was Greek intended to qualify 'dips and wine' or just 'dips'? On the information available, there's no way to be sure.

How drafters remove this ambiguity

Actually, there are a few techniques. But one you'll often see is like this:

Please bring to the picnic some:

(a) Greek dips; and

(b) wine.

In this case, it is crystal clear that 'Greek' qualifies 'dips' but not 'wine'.

On the other hand:

Please bring to the picnic some Greek:

(a) dips; and

(b) wine

unambiguously uses 'Greek' to qualify both 'dips' and 'wine'.

What does this have to do with the TCP Code?

Consider this passage, taken from clause 4.1.3:

A Supplier must make available the following information on its website and without charge upon request to enable this outcome:

Question: What is the relationship between 'on its website' and 'without charge' and 'upon request'?

Does 'upon request' mean that a provider doesn't need to post the specified information on its website unless someone asks it to? Grammatically, that is completely open to a reader. On this reading, 'on its website and without charge upon request' operates conjunctively (which is fair enough, since 'and' is a conjunction).

Does it also mean that a provider may charge for the information, unless someone asks for it without charge? Very possibly so.

Turning to guesswork, it might seem odd to excuse a provider from posting important info on its web site. So maybe 'on its website' and 'without charge upon request' are meant to reference two separate things. The provider must give the information:

(a) on its website; and

(b) if so requested, by another means, without charge.

You need to infer the underlined words to make the second case meaningful.

So either clause 4.1.3 means that you needn't provide the listed info at all and/or you can charge for it, until someone asks, or it means to refer to two separate ways of providing the info, one of which isn't actually articulated. Bad drafting indeed.

It gets worse

Here is one of the items of info in the list that follows the intro to clause 4.1.3:

International Roaming: information about whether a Consumer needs to take any action to activate international roaming on the Supplier’s Telecommunications Product (such as applying for activation of this functionality with the Supplier) or deactivate international roaming and the basic Charges to send SMS, make and receive standard calls and for data usage on the Supplier’s Telecommunications Product from different countries (including that roaming Charges may be higher than Charges for international calls from Australia and data usage may be more expensive, and that Customers may be charged for both making and receiving calls while overseas) in a prominent and/or easily navigable and/or easily searchable position on the Supplier’s website.

Sorry it's such hard reading … 109 words strung together … but that's exactly what the Code says.

Now here's the question: Does the above passage require a provider to post on its website:

  • the basic charges to send SMS from 'different countries'

or only

  • information about the basic charges to send SMS from 'different countries'???

You see, it's impossible to tell whether the words 'information about' at the start of the para qualify all the items that follow or just some of them. It is not possible for a provider to know whether the Code requires them to detail charges, or more generally provide 'information about' them. That's because so many things are run together as a rambling list, giving no way of knowing where the effect of qualifying words is intended to end (if at all).

It is not good enough that a mandatory Code should be ambiguous on such an important issue.

No sympathy for the drafter/s

The best drafter can make a mistake. Drafters are human and so are readers, so eliminating all ambiguity is hard. But drafting a para that rambles on for 109 words including eleven conjunctions … yes eleven … is reckless. It would need a master drafter to safely land such a para once it was airborne (except that a master drafter would never allow such a dangerous flight to take off).

It would be a miracle if a para that answered that description … 109 continuous words including eleven conjunctions … didn't end up ambiguous. If you draft that way, don't ask for sympathy when you're called out.


About Peter Moon

A telco lawyer with a truckload of experience
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