Subscribers to all the cellular networks are complaining that their data and airtime are “disappearing”. The networks’ standard response is that your data and airtime can’t just disappear: your smartphone and data-hungry apps are consuming more than before.
Mickey Beley isn’t buying it. The Vodacom subscriber’s bill jumped from an average of R4 000 a month over the previous six months to R6 331 in March and then to R7 162 in April because of extraordinarily high data usage. Data accounted for R2 257 of his March bill and for R4 700 of his April bill. Previously, data accounted for between R8 and R46 of his total bill.
Beley is in sales, so he’s on the network’s Red Premium package, which gives him 2GB of data and 1 200 minutes of talk time every month. He says he habitually monitors his usage – checking it more than once a day – to ensure he doesn’t exceed the limits and incur hefty out-of-bundle rates.
“I’m a very careful user. I don’t use my phone as a hotspot [which enables other wireless devices to use your data], nor do I leave apps open. I have a history of buying extra data so that I don’t pay out of-bundle rates, which makes these bills all the more peculiar. They don’t reflect my usual behaviour.”
Beley does not subscribe to itemised billing, but if he did, it would show the date and time on which the data was consumed and how much data was consumed. Itemised billing does not show whether the data was used by an app or a website you visited.
After receiving his bill for March, Beley went into a Vodacom outlet to ask for proof that he had used such an extraordinary amount of data. He was told that only the “technical service division” could provide such information; his request would be sent to them. A week later, he went into another Vodacom outlet to follow up on his request, but the information wasn’t available. “I don’t know how many times I went into Vodacom stores to find out if the technical service division had provided feedback, but none was forthcoming.”
Then one night in April, Beley received notification that his phone was using data while it was being charged. “In the space of about five minutes, I got three SMS notifications that more than 200MB had been used.” He took a screen shot and immediately disconnected the phone from the power bank.
The same thing happened later that month while he was driving. “Out of the blue, I received a notification that I had 98MB left; a minute later, I was out of data.”
After R7 162 was debited from his bank account at the end of April, and Vodacom had still not explained his high data usage or sent his account for April, Beley engaged attorney Trudie Broekmann, who specialises in the Consumer Protection Act (CPA).
Unbeknown to him, Broekmann was in the process of helping Sarah Lawrence, another Vodacom customer, with a similar problem. Vodacom eventually made a “bill-shock offer” to Lawrence, reimbursing her to the tune of R26 826. (Bill shock is “the negative reaction a subscriber can experience if their phone bill has unexpected charges”, according to Wikipedia.)
Beley says he went to Broekmann because Vodacom had failed to provide him with the information, namely, proof of his extraordinarily high data usage and his April bill, to which he is entitled.
“I have been emphatic all along: I need to see where the data was actually used. Vodacom has yet to show me,” Beley says.
He hasn’t had his device checked, because he’s sure there is no problem with it. “If there were, my problems would have persisted beyond March and April. It makes no sense,” Beley says.
It took a letter of demand and nine emails from Broekmann to Vodacom before Vodacom responded in late July to Beley’s complaint.
The gist of the response: the customer uses a “data-intensive” iPhone and was sent SMSes notifying him that he had exceeded his data-bundle allocation and would be billed at out-of-bundle rates. Attached to the response was a report showing Beley’s data usage from February to July. “All usage billed is true and correct and therefore no credit is due to the customer,” the letter said.
Beley denies receiving SMS alerts pertaining to his spend. The alerts he received were merely a reflection of data being consumed – and not by him, he claims.
“I have a call limit on my account. It is set at R2 997, and it applies to the overall invoice amount on my account, and not just calls. According to Vodacom’s website, I am supposed to receive SMS alerts when my usage reaches 50 percent, 70 percent and 90 percent of the limit set. Vodacom claims these were sent to me. I would like to see proof that I received them. Furthermore, the website says that ‘when you reach 98 percent of the limit amount, your line will be locked’. Why was my line not locked?”
And the usage report from Vodacom does not prove how the data was used, he says. “It merely indicates the amount of data and the date the data was used. I would like to see how the data was used; what websites or apps were accessed.”
Broekmann wrote back to Vodacom asking for proof that the SMSes had been delivered to Beley’s phone. Vodacom’s failure to deliver the SMSes constitutes a breach of the contract, as well as the CPA, in several ways, she says. She has not received such proof, she says.
Broekmann argues that Beley is not liable for charges from the date each month on which the first notification SMS should have reached him, because her client did not know that he should reduce his data usage.
Vodacom’s failure to lock Beley’s line was a material breach of contract, Broekmann says. Beley was not liable for any data charges levied after the time that the line should have been locked.
In early August, Vodacom had still not provided Beley with a copy of the contract and his invoice for April 2016, which is also a breach of the CPA.
Broekmann demanded that Vodacom reimburse Beley for the excessive data charges, plus interest, plus his legal fees of R3 000. Broekmann also warned Vodacom that, if it failed to meet this demand by August 8, Beley would report Vodacom’s contraventions to the National Consumer Commission (NCC) and the media.
In early August, Broekmann sent another letter to Vodacom on hearing that Vodacom had implemented a new accounting system during March/April and had experienced billing issues. “From the amounts supplied, it is clear that the data charges for March and April are unusual, and no explanation for this has been supplied by Vodacom,” she wrote.
One month later, having had no response from Vodacom, Broekmann sent another email to the network, notifying it that Beley had further proof of incorrect billing.
On September 7, he had checked his usage (using the *111# facility on his phone). It showed he had 1 757 minutes of talk time and 4.26GB of data. When he checked the following day, at about the same time, he had 803 minutes of talk time and 2.02Gb of data. For that to be accurate, Beley would have to have been talking on the phone for 16 hours between the times that he took the readings – which he denies.
On September 28, Vodacom sent Broekmann an email explaining the terms and conditions that apply to call limits, also known as “soft blocks”. Broekmann says the Ts & Cs are unfair, unreasonable and unjust in terms of the CPA (see “Your Vodacom ‘call limit’ expires after seven months”, below).
Early this month, Broekmann sent her 12th email to Vodacom, calling on the network to pay Beley’s legal fees, which had escalated to just over R17 000, failing which the complaint to the NCC would be lodged and Beley would consider taking the matter to the Small Claims Court, she said.
The next day, Robyn Naidu, the executive head of legal affairs at Vodacom, responded. “Purely as a gesture of good faith and without admission of liability”, Vodacom would consider crediting Beley’s account with a sum equal to the amount charged to him in excess of his average data usage for the two-month period in question. But Vodacom was not prepared to pay Beley’s legal fees, because it was not at fault, Naidu said. And any NCC complaint or information to the media would be defended.
Broekmann responded by email: “I am surprised that you offer no explanation at all for the data consumed when my client connected his phone to his car’s Bluetooth set, and when he charged it using a Vodacom-issued charger. Charging data fees in these circumstances certainly amounts to wrongdoing. A failure to respond before various threats are made and 12 emails sent certainly justifies legal fees – and my client does insist on receiving repayment of same.”
Beley has lodged a complaint with the NCC and at the time of writing was about to lodge a complaint in the Small Claims Court.
Vodacom to investigate
This week, after being invited to comment on a draft of this article, Vodacom asked Beley for written permission to extract the detailed information he requested, “such as the URLs accessed that contributed to the disputed data usage”. The extract of data takes at least 48 hours to complete, according to Byron Kennedy, the spokesperson for Vodacom.
Vodacom apologised for the inconvenience caused to Beley, particularly the manner in which his data-information request was handled at its franchise stores.
The extraction of the information is integral to the investigation into Beley’s matter and therefore Vodacom was not yet in a position to provide substantive comment, Kennedy said.
YOUR VODACOM ‘CALL LIMIT’ EXPIRES AFTER SEVEN MONTHS
Vodacom’s contracts, under the heading “mandatory call limits”, state that “all Vodacom (Pty) Ltd subscribers are subject to a monthly mandatory call limit for the first seven months of the contract”.
Vodacom customer Mickey Beley was not notified when the call limit was lifted after seven months, and it was not brought to his attention when he entered into the contract that the limit would be lifted after seven months, as required by the Consumer Protection Act (CPA), according to Trudie Broekmann, an attorney who specialises in the CPA.
The first Beley learnt about the lifting of the limit was in an email from Vodacom to Broekmann.
The email said that, “with regards to locking of the line, when a new contract is entered into, a limit is placed on the account for up to seven months as per the attached signed contract. The limit is then removed once the retention period has been reached, and should a customer wish to have a limit in place, the customer is required to request this service. No record can be found that a call limit was requested by the customer for each line.”
What this means is that Vodacom sets a limit on your calls for seven months, and then, without warning (apart from the small print in the contract) “unlocks” your account, and there’s no limit to the charges that you can rack up.
“This amounts to an ambush of consumers, and doesn’t comply with the CPA, specifically, in that it’s unfair, unreasonable and unjust (section 48), probably unconscionable (section 40), and the necessary warning hasn’t been given to consumers (section 49), so it is probably void (section 51(3)),” Broekmann says.
In terms of consumer law, specifically the Consumer Protection Act and the Icasa Act, you are entitled to:
• An itemised bill if you dispute any charge levied by your service provider, even if you don’t pay for one each month;
• Notifications warning you that you are about to reach, or have reached, certain limits pertaining to your usage, if your service provider is contracted to send these;
• A soft block preventing you from incurring any further charges once you have reached any limits, if your service provider has undertaken to provide one in terms of your contract; and
• An accurate bill. If the service that monitors your usage is defective and feeds the wrong information to the billing system, your bill will be inaccurate and can be disputed. The onus is on your service provider to prove that you did, in fact, incur charges and/or used the data for which you have been billed.