Industry to TCP regulators: We need a direction

Possibly the top two objectives of the 2012 TCP Code  are (a) to reduce the number of customer complaints, and (b) to get any complaints that do arise closed fast. 

Which makes it pretty remarkable that the Code stumbles over the questions: “What’s a closed complaint and when can a telco mark a complaint as closed?”

The fledgling regulator Communications Compliance needs to issue a clarifying direction on this, fast.  The new complaint handling rules start in a few days and there should not be internal inconsistency in the Code on this key point.

What’s the problem?

No point in mincing words here, either:  The definition of ‘closed’ (as in a ‘closed’ complaint) and the clauses that say when a telco is allowed to ‘close’ a complaint are pathetically badly drafted.

When can a telco ‘close’ a complaint?

Clause 8.2.1(a)(xiv) of the TCP Code (yes, the Code that demands telcos use clear language itself has clauses at five, and more, levels of numbering!) tells us when a telco may ‘close’ a complaint.  It can do so only if:

  • the complainant wants out of the process, or
  • the complainant is a serious jerk, or
  • the complainant has disappeared, or
  • the complainant consents.

We simplify, but that’s the essence of it.

What is a ‘closed’ complaint?

You may wonder why there even needs to be a definition of ‘closed’.  You’d be right.  There doesn’t.  But there is, and here’s what it says (in summary):

A complaint is closed if:

  • it is no longer open (a stunning insight if ever there was one)


  • the complainant wants out of the process, or
  • the complainant is a serious jerk, or
  • the complainant has disappeared, or
  • there was an agreed resolution that the telco has fully implemented.

We won’t bore you with expert drafting principles (which say that none of the last four bullet points should have appeared in a properly drafted definition in a legal document).  But we will point out that:

  • there are four bullet points that say when a telco may close a complaint, and
  • there are four bullet points that tell us what a closed complaint is, and
  • three of the bullet points (in blue) are the same in each list, but
  • the fourth bullet point (in red) is not the same in each list.

So consider the problem this creates

Let’s pretend that a telco customer could be a difficult person.  Difficult Danny makes a complaint and Telco Tim offers to resolve it by giving a $20 credit.  And Tim makes the credit, as agreed.  Deal done.

Can Tim close the complaint?

Yes, he can

Well, according to the definition of ‘closed’, he can.  Because he has fully implemented the agreed resolution.

And no, he can’t

But according to clause 8.2.1(a)(xiv) he cannot.  Because Difficult Danny hasn’t in fact consented to the closure.

See … there are two different tests that apply to the same question.  They can lead to different answers.  Bad law.

Could the problem be solved by common sense?

Sure.  For instance, you could argue that when Danny agreed to a resolution, he implicitly consented to the complaint being closed if Tim fully implemented that resolution.  Nice argument.  (But there are contrary legal arguments, too.)

But why should telcos have to rely on ‘arguments’ that they aren’t in breach of this very serious Code?    Why isn’t something as central and critical as the idea of ‘closing a complaint’ really carefully, unambiguously and well drafted?

Does it matter?

Sure does.  As we said at the top of the post, achieving closed complaints is a key driver of the entire Code.

When Communications Compliance finalises its reporting requirements for complaint handling performance, the closure rate and velocity is sure to figure.  And those figures will be published for the world to see.

What’s the solution?

A regulator should issue a position statement clarifying how it will view / enforce the ‘complaints closure’ test.  It would be as simple as saying that the regulator takes the view that:

  • where there is an agreed resolution that a telco fully implements, it will always be considered that the ‘complainant consents to closure’ test is satisfied (even if there’s no evidence of actual consent), and
  • where a complainant in fact consents to closure, it will always be considered that the ‘fully implemented’ test is satisfied.

That would harmonise the two different positions that the TCP Code currently takes on the same important question.

What if the current unsatisfactory position is allowed to stand?

It probably won’t be ‘the end of the world.’  Even if nobody has the sense to clarify the issue, they will probably have the sense not to take advantage of the ambiguity to the detriment of telcos.  That would be a very bad look.

But it does undermine the Code and its purpose.  If regulators want to breathe fire about Code compliance, key concepts (like ‘closing a complaint’ for heaven’s sake) should be crystal clear.

About Peter Moon

A telco lawyer with a truckload of experience
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