Every Offer needs a CIS, but what’s an Offer?

It’s a good question, in some cases without a clear answer. When does a telco have to provide a Critical Information Summary? We’ll explore the issues in this article, and offer some opinions about how the Code works in this important area.

The starting point is that every ‘Offer’ (as defined by the Code) needs a Critical Information Summary.  So the real question is ‘What’s an Offer?’

Superficially, it’s easy

The TCP Code requires that:

A Supplier must provide a summary of each of its current Offers to allow Consumers to compare Offers provided by each Supplier which best suit their needs.

And it explains that:

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.

Now, we’ll overlook the fact that the expression ‘current Offer’ is tautological, since ‘current’ is also part of the definition of ‘Offer’.

But it soon gets more complex

The first really curly part of the definition is the idea of a ‘current, standard in-market plan containing pricing’. If each element of that definition has a meaning (and lawyers like to think that the words of a law do have meaning) then it must logically be possible that you could also have:

• a non-standard in-market plan containing pricing
• a standard plan containing pricing that is not in-market
• a standard in-market plan that doesn’t contain pricing.

Think about those things for a moment, and whether you have a clear idea about what each of them means and how they are different from each other. If you’re not going cross-eyed, you’re better than we are.

We’ll return to this phrase below, and try to give it a reasonably predictable meaning.

Then comes the second thought-provoking element

To be an ‘Offer’, a particular plan must be ‘available to any individual Consumer or Consumers as a class’. What does that mean?

The word ‘any’ can have two different meanings, depending on context. In its first meaning, it translates as ‘at least one’. For instance, if there was a law that said, ‘It is a crime to sell a cigarette to any person’ that would mean ‘It is a crime if you sell a cigarette to at least one person.’ (And, of course, if you sell cigarettes to each of two persons, that would be two crimes.)

In its second meaning, ‘any’ means ‘all’. A law that says, ‘An hotelkeeper must give a glass of water to any person who asks for it’ means ‘An hotelkeeper must give water to all persons who ask for it’.

So that means that the definition of ‘Offer’ might mean two things:

• an Offer is a plan that is available to at least one Consumer, or
• an Offer is only a plan that is available to all Consumers.

Which does it mean? For once, the context doesn’t provide immediate assistance. The difference in the two possible meanings is dramatic. In the first, a telco would need to provide a CIS if so much as one person (who is a Consumer) could take the plan. In the second, a CIS is not required if there is just one Consumer who could not take the plan.

This is not academic. If the first meaning is correct, a plan that is only offered to business customers does require a CIS, since it is available to at least one Consumer. If the second is correct, such a plan does not require a CIS, since there are many Consumers (ie residentials) to whom it is not available.

But, of course, there are two parts to this element of the test. A plan is an Offer if it is available to any individual Consumer or Consumers as a class. What does ‘Consumers as a class’ mean? It doesn’t say ‘any class of Consumers’, it says ‘Consumers as a class’. A class of what? In what sense are residential and small account business customers of telcos a ‘class’ ? (other than that they are all Consumers as defined by the Code … and that is circular … the phrase would then mean ‘Consumers as Consumers’.) It is tremendously difficult to give a meaning to this phrase using English grammar and usage as a guide. In fact, it is probably meaningless.

It’s at times like these that you have to ask, ‘What was that person trying to say?’ The only way out is to guess at that. Again, we’ll return to this exercise below.

And then the third curious thing

An ‘Offer’ includes ‘such offers made in Advertising’, says the definition. The word ‘such’ here is a neat English way of referring back to the last time a word was used in a passage. For instance:

The man said that red chairs were not welcome in his home because his mother had once fallen ill while sitting in such a chair.

The ‘such a chair’ is a ‘red chair’, since that is the last kind of chair that has been mentioned.  It would make no sense to say:

The man said that red chairs were not welcome in his home because his mother had once fallen ill while sitting in such a village.

No ‘village’ has been mentioned before. ‘Such’ does not reference anything. It’s the same in this part of the TCP Code’s definition of ‘Offer’.

Here’s the definition again, to remind us:

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.

Note that the word ‘offer’ is not used at all before ‘such offers’. ‘Such offers’ references nothing.  Sure, the definition does start with the words ‘Offer means …’ but that’s the word we’re defining. A defined term can’t refer to itself in the course of defining itself. ‘A Grimble includes, without limitation, a red Grimble’ is not a definition. It still leaves us wondering ‘But what’s a Grimble?’

So what, so far?

Well, it isn’t looking good. We have an opening phrase (‘current, standard in-market plan containing pricing’) that is very difficult to understand, attached to a second element (‘available to any individual Consumer’) that is ambiguous, and a third idea (‘Consumers as a class’) that is very likely meaningless plus a final bit (‘such offers made in Advertising’) that is grammatically untenable.

How to interpret it?

When use of language has failed so badly, we need to do what humans can do and machines can’t (yet). We must try to work out what was most likely intended and a way to interpret the words in light of that.

What follows is educated guesswork, the best we can do.

We think the definition should be read as if it said:

Offer means an offer of a current, standard in‐market plan containing pricing that is made by a Supplier for the provision of Telecommunications Products, which is available to be accepted by any at least one individual Consumer or Consumers as a class and includes, without limitation such offers made in Advertising.

If that’s correct, three of the four issues are solved.  We only need to work out what ‘a current, standard in‐market plan containing pricing’ means.

‘Current’ must mean ‘currently available’.  (If not, then what does it mean?)  So a CIS isn’t required if a telco offers a plan that isn’t available right now.  If you’re signing people up for a plan that won’t be available until a future date, no CIS would be required.

‘Standard’ seems relatively clear.  It means the opposite of ‘customised’.  It refers to an ‘off the shelf’ plan.  Not bespoke.  Not tailored to an individual’s needs.

A ‘plan’ is probably a communications product provided on certain terms and conditions.

So what we end up so far with is that:

You must provide a CIS for every non-customised telco product you offer on specific terms and conditions that state the pricing, where the product is on offer to at least one residential or small account business customer.

We said ‘so far’ because we have one last phrase to work out:  ‘in-market’.

In-market

This is a very difficult expression to give meaning to.  It could mean something like ‘on offer in the same ways or places that competing telco products are normally advertised in’.

Another interpretation of ‘in-market’ is that it just means ‘on offer’ or ‘available to be purchased’.  But that just leaves us saying that an ‘Offer’ is an offer that is on offer. ‘In-market’ would be meaningless.

We think being ‘in-market’ has something to do with being ‘out there’ in the ways and places that telco products are publicly thrown at each other head to head, seeking to attract the attention of the general public.  Web advertising … in shops … on the TV and radio … on public transport … in newspapers … probably via telemarketing.  We think that if a plan is offered in a way that isn’t pushed at the general public in the ways and places that telco products are generally pushed at the general public, it isn’t ‘in-market’.

If that’s right, a clear example of a plan that would not be ‘in-market’ is one where the telco advertises a product and says ‘Call us for pricing’.  The plan does include pricing, and it is available to be accepted by Consumers, and it is a ‘standard’ plan.  But the product, terms and pricing (all three of them) are not out there in the market place.  The plan is ‘on offer’ but it’s not ‘in-market’.

Summing up

Our best guess is that the TCP Code should be read as if ‘Offer’ was defined as:

Offer means an offer of a currently available, standardnon-customised in‐market plan containing pricing that is made in the usual mass market ways or places (eg websites, TV, outdoor advertising, magazines, telemarketing) that telco products are promoted to the general public and that is made by a Supplier for the provision of Telecommunications Products, and which is available to be accepted by any at least one individual Consumer or Consumers as a class and includes, without limitation such offers made in Advertising.

And if that’s not what ‘Offer’ means, we’re all ears to hear what it does mean.