Are correct and good expressions of will important for a smoothly functioning transfer system?
Yes, COIN and all Dutch telecom providers work within a legal framework of self-regulation agreements by means of a “high trust” principle. By means of the COIN agreements, all connected Telecom providers are obliged to comply with the legally regulated system (4.2 and 4.10 TW) of Number Preservation (taking the subscriber’s number to and from another provider).
According to ACM.nl, 2164 providers of Public Telecommunications services and Networks are registered. Although there is really something to haggle on this list and there are also, for example, many internet providers, installation parties, antenna sites, etc. that presumably do not provide telephone services, and therefore do not request number porting. At COIN, in January 2021, fewer than 235 unique parties are registered with COIN with an SP code. Only the network provider Routit (code VOIP) determines who it gives access to COIN and thus determines on behalf of which of the 235 unique SP codes (service providers) it submits a request for number porting and the agreement with Qupra et al. ends.
Presumably many of the 1500 resellers/partners (IEXnl) are not registered with COIN. Qupra CS. cannot check it, other than requesting the will. Nevertheless, Routit requests number porting/porting on behalf of this party. Of the submitted statements of will, none of the authorized parties other than Routit/KPN itself is COIN registered, and only 2 are ACM registered. The authorizations submitted by Routit, but also by other parties, are often incorrect on the basis of COIN and ACM regulations, unclear, and lead to misconceptions at Qupra CS. and her (former end customer). If Routit also does not pass on the COIN rules to its partners, it is impossible for them to comply with these rules. It is clear that the expressions of will are not in order as a result.
No expression of will = no control on "who is porting with whom"
Qupra CS. because RoutIT/KPN does not provide an expression of will (or provides an expression of will without making known who the Service Provider is), cannot verify whether it concludes a porting agreement with a party other than RoutIT ACM registered. Nevertheless, RoutIT/KPN refers for part of the responsibility to its reseller/partner. Qupra remains in the dark about this.
When RoutIT/KPN would use a different SP code than its own SP code, namely the SP code of the relevant Telecom provider in the porting process, such as Qupra CS. that does. Would Qupra CS. also know to whom it is porting, and whether this party is registered with ACM, just like Qupra, and is part of the “level playing field”.
Confidence in your competitor that they have the expression of will “in order” is a basic condition to guarantee a smooth switching process.
For example, it appears from ACM policy rules from 2008 (Article 5) (Exhibit V):
Providers are responsible for the information to and for the behavior of the persons and companies they engage when concluding, amending and terminating contracts with end users of the public electronic communications services designated for number porting.
For example, the Ministry of Economic Affairs reports in its 2018 policy rule (exhibit 12, policy rule Explanatory Memorandum):
No switching without the subscriber’s explicit consent The receiving and transferring provider shall ensure that the switching does not take place without the subscriber’s explicit consent, ie without a proper expression of will on the part of the subscriber. There must therefore be a proper expression of will on the part of the subscriber that satisfies the requirements of the Civil Code and which shows unambiguously that the subscriber wishes to switch to the receiving provider and wishes to terminate the agreement with the transferring provider. This does not alter the fact that there may be a provider-driven switch based on a power of attorney, as is often the case now and is legally anchored with the switching service to be provided as described in section 5.2.1. The power of attorney is the power that a principal (in this case the subscriber) grants to the authorized representative (the receiving provider) to perform legal acts in its name (termination of the agreement with the transferring provider), as referred to in Article 3: 60 CC. On the one hand, it is necessary to prevent a subscriber from switching providers without having actually agreed to this. On the other hand, at the same time, a smooth switching process between telecom providers must be guaranteed and no switching barriers must be raised, for example because the transferring provider always requests expressions of will from the receiving provider when there is no need for this.
In other words: assume a switching procedure based on trust where possible, but with good guarantees against an unwanted switch. The basic principle here is the rules laid down in the Dutch Civil Code with regard to power of attorney (Book 3, title 3, Articles 60 to 79 of the Dutch Civil Code), in particular Articles 3:70 and 3:71 of the Dutch Civil Code.
What are the consequences of not having an expression of will in order?
It is evident that the wishes expressed by some telecom resellers are not in order. They are missing, incomplete and the content does not correspond to what has been agreed. This causes errors in the switching process. After all, with a defective or missing expression of will, Qupra cs cannot check what the customer’s wishes are with a departing customer. The expression of will is also a termination of the contract with Qupra CS., but:
1. Does the customer really want to leave Qupra CS?
If this is not the case, there is an invalid expression of will and a line hijacking and/or slamming. According to a 2005 study by ACM, KPN is the largest slammer in the Netherlands. ACM research from 2005 confirms this picture, because we now know that under 3.6.2 KPN it was demonstrably unable to provide an expression of will (slamming/line hijacking) more than 5000 times. KPN is therefore the largest “slammer/line hijacker” in the Netherlands.
2. Does the customer want to leave immediately, and does he accept a final bill? If the telecom reseller does not submit the statement of will, Qupra CS. not prove that;
In porting processes it is not sufficiently clear what is meant. When the new telecom provider / operator enters “customer agrees to final bill” in the system, Qupra CS. other than playing it through the customer cannot prove that this is not the case. Nevertheless, KPN is propagating that it has this customer authorization in court, and Qupra CS. is empty handed when it comes to evidence. The court is of the opinion “There is nothing to show that Club Med has provided KPN with the stated authorization.”
Routit/KPN port in some switching processes (not all processes provide this option) with the text “Customer agrees with Final Note” (see Exhibit V-6). As a result, Qupra CS. comply with the legal right to number portability. In retrospect, it turned out in this case that the customer did not agree with the final invoice at all and a legal battle ensued (Rechtspraak.nl 6153462 CV EXPL 17-16133 ) in which this customer requested a refund of the final invoice and won this claim. Since there is no service in return, it is difficult to collect a final invoice. This is also apparent under Margin 11 of the court’s assessment (where the same Exhibit V-6 was submitted):
“11. MTTM et al.’s second defense also fails. Aside from whether MTTM et al., in view of the purport of Article 7.2a TCW, was authorized to collect the final invoice in the event of an agreement on the final invoice, it has also not been established that Club Med agreed to charge the final invoice. A concrete confirmation from Club Med to this effect has not been submitted and it follows from the correspondence submitted (see 1.7) that Club Med did not agree with the charging of the final bill. The argument of MTTM et al. that it is customary within the market of telecom service providers to rely on KPN’s confirmation – so that MTTM et al. could trust that KPN was authorized to give its agreement on behalf of Club Med does not provide sufficient substantiation for its assertion. There is nothing to show that Club Med has provided KPN with the alleged authorization.”
Qupra CS is also not required by law to cooperate with the request for number portability Via COIN, switching from one provider to another is realized. At the request of the State Secretary of the Ministry of EZK on 9 February 2020, the providers made agreements about the switching process via COIN. Part of these agreements is that a provider, in this case Qupra CS., only needs to cooperate with a porting request if the customer has expressly agreed to pay the lump sum payment, which of course also includes all other outstanding costs.
The Explanatory Memorandum to the recent amendment of the Telecommunications Act in connection with the implementation of the European Code for Electronic Communications (the Telecom Code) also explicitly refers to this principle. The legislator has expressed this as follows:
“After all, a subscriber may also have valid reasons for wanting to terminate the agreement prematurely and for accepting any commutation sum involved. In that case, the subscriber’s expression of will must show that he has been explicitly informed about a lump sum payment and has expressly agreed to bear the costs of the lump sum payment. The legislator also refers explicitly to the process agreements made within COIN.
Does the customer want to leave immediately and does not accept a final bill? Then the telecom provider does not have to cooperate with porting.
The more recent judgment of the Amsterdam District Court from 2020 is therefore much clearer: c 13/686754 / KG ZA 20-613 and it is clear that a telecom service provider does not have to cooperate with porting if the final bill has not been paid, or the contract has not been legally terminated.
Always have an expression of will in order? Become a reseller-partner
Do you want to comply with the regulations regarding switching and porting as a reseller partner? Please contact rob@qupra.nl or leave your details here, and we will send you an example of the required data and report your registration with COIN and ACM, and keep you informed of laws and regulations, so that you as a partner comply with the telecom law and ACM regulations. For more information about Qupra’s services, visit https://quprawholesale.com/services/.