Today, Cooper Mills started to prepare our expert checklist for Chapter 5 of the Telecommunications Consumer Protections Code — the rules about billing. Immediately, it was clear that whoever wrote this section had even fewer drafting skills, and less attention to detail, than the drafters of other chapters.
Let’s look at a disturbing example.
The Chapter carve out
We’re not interested in trivial examples here; only in major foul ups. So let’s kick off with a whopper.
First step: The ‘Offer’
Key elements of the TCP Code are focused on a thing called ‘Offers’. Basically, an Offer is a standard plan / product / service that a service provider sells ‘off the shelf’. That’s in contrast to a custom solution.
‘Offers’ are important to the Code. For instance, each ‘Offer’ needs to have a Critical Information Summary.
The concept is easy to understand but hard to define. The Code has a pretty stumbling stab at defining it. But it’s a definition, at least.
Offer means a current, standard in-market plan containing pricing that is made by a Supplier for the provision of Telecommunications Products, which is available to any individual Consumer or Consumers as a class and includes, without limitation such offers made in Advertising.
OK, there’s a lot of room to wonder exactly what that means, but the gist is sort of clear.
Second step: The Chapter 5 carve out
If an expert drafter was asked to write a sentence that carved out an entire chapter of the TCP Code, their hands would shake. After all, a wrong word, an ambiguous phrase, could accidentally exclude the operation of the Code to an unknown number of providers and plans.
Fortunately for the stress levels of whomever drafted the introduction to Chapter 5, no such concerns seem to have disturbed their slumber.
Here’s what Chapter 5 doesn’t apply to:
This chapter does not apply to the Billing of goods and services provided by a Supplier in relation to specific works and commercial arrangements that are not the Supplier’s market offerings.
Now, we may be wrong, but our sixth sense tells us that this carve out is aimed at excluding services that are not ‘Offers’ as defined in the dictionary of the Code. We guess that the drafter was trying to say:
This chapter only applies to the Billing under Offers that have been accepted by a Customer.
Instead of that, we have a very significantly different formula of words. Apparently, for the purposes of this Code, there are:
- current, standard in-market plan containing pricing that is made by a Supplier for the provision of Telecommunications Products, which is available to any individual Consumer or Consumers as a class
- goods and services provided by a Supplier in relation to specific works and commercial arrangements that are not the Supplier’s market offerings
AND THEY ARE PRESUMABLY DIFFERENT!!! Well, what is the difference? Are they mutually exclusive, or do they overlap? If they overlap, exactly where and how?
The difference is critical. Chapter 5 is entirely excluded in the case of goods and services provided by a Supplier in relation to specific works and commercial arrangements that are not the Supplier’s market offerings. Is that narrower than, or broader than, or overlapping with ‘Offers’? Exactly what doesn’t Chapter 5 apply to?
It’s not good enough
Service Providers stand to be punched up for failing to comply with the TCP Code. In principle, we have no problem with that. But if the best that a six year process (yes, that’s how long a lot of the drafting in this Code has been in play) can produce is this kind of slovenly drafting, it’s a sad reflection on Code development processes.
It also means that no provider can confidently say they comply with the Code. Who can ‘swear’ that they comply with requirements they can’t confidently understand?