Is transparency for telecom providers regulated by law?

Yes, it appears from Article 2.1 of the TW that providers of Public Telecom services must register with the ACM. Since one reseller/partner of Routit/KPN apparently submits an expression of will on its behalf and has registered with ACM, and the other does not, there is no “level playing field”. This while the ACM itself also published in 2008:

Policy Rules for Number Portability 2008 (ACM), fifth paragraph: 5. 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 .

It has been evident that Routit/KPN or KPN would not want to disclose who sells products on its behalf. In this case, however, the request is not for the reseller but for the service provider “Who sells to “the customer”, i.e. from whom the customer receives the invoice”.

From a published ACM enforcement request from provider Belcentrale BV on this subject (contrary to what Routit claims, Qupra is not the only one asking questions about this subject):

Case law shows that for the question of whether a party qualifies as a provider of an electronic communications service, the decisive factor is that the service provider is responsible towards the end users for transmitting the signal through which that end user can actually purchase the service.4 5 The Court Rotterdam also came to this conclusion in its decision of 8 May 2002: “Providers can only be those who, in a legal sense, can proceed to conclude an agreement with customers.” In this regard, the court considered that it is decisive that the relevant provider undertakes to provide a telecommunications service to its customers as part of its (public) offer. It is decisive who provides this service for the end user and thus with whom the end user has an agreement. This makes this party responsible for the delivery of the service to the end user.

The fact that ACM does not proceed with enforcement in this enforcement request is apparent from 1 elementary difference compared to the case of Routit:

It appears from the information that Ries has provided to ACM that it does not enter into an agreement in its own name for the provision of the Complete service. Customers contract with Dean One to provide this service. Article 1 of the quotation contains the passage: “dean one is pleased to offer you a quotation for Complete”. Ries is listed as ‘telecom dealer’ on the cover page of the quotation. Otherwise, the quote contains the Dean One logo on every page. All this shows that Dean One takes responsibility for the delivery of the service.

In COIN context, the term service provider (SP) and network provider (NO) are therefore discussed. Where the service provider has the billing relationship with the customer, and the network provider facilitates the service provider and / requests porting. In many cases, these 2 are one and the same legal entity, such as with Qupra cs. In the case of RoutIT where it never has the invoice relationship, but the partner of RoutIT has this, the service provider can never be RoutIT BV (SP-CODE VOIP).

For example, it appears from ACM’s (OPTA) policy rules from 2008 (Article 5)

5. 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.

With explanation

Mobile telephony, and lately also VoIP, is also sold through third parties (auxiliaries). The customer can perform all actions with the auxiliary person to obtain the service. This article emphasizes that providers are responsible for the assistants they engage to conclude, amend and terminate agreements with end users on their behalf and that number portability must therefore also be possible in these cases. In addition, the provider of the service (and not the auxiliary person) remains the person on whom the legal obligation rests for the provision of number portability. The providers must therefore provide these assistants with the correct information and resources.

A request for a valid expression of will can be made since the entry into force of the “transfer” policy rule on three grounds:

• There is in any case reasonable doubt as referred to in the first paragraph if the leaving offerer indicates that he:has received a complaint from the subscriber in which the subscriber indicates that he has not consented to the termination of the agreement or that he has consented thereto as a result of a misleading representation by the acquiring provider;
• has repeatedly received complaints from subscribers stating that they have not consented to the termination of their contract and the transfer to the acquiring provider, or that they have consented to it following a misrepresentation by the acquiring provider;
• has received a termination of a fixed-term agreement, which would incur costs for the subscriber due to early termination of that agreement.

Qupra cs. invokes Article 2. C of the policy rule in the E-mail, more specifically through the phrase it uses “port on the end date of the agreement…. That is not the case in the present case in which we request the expression of will”. In all cases where RoutIT requests porting, it never requests this on or near the end date of the agreement. And it deviates greatly from that. This would result in a closing bill when the porting is carried out, without it being clear whether the subscriber wishes to pay for this. The explanation to the policy rule shows, among other things:

“the interest of the transferring provider to have access to expressions of will, even without an underlying individual complaint from a subscriber, outweighs an agreement between telecom providers to only do this in the event of an individual complaint.”

And

“In the event of premature termination of the agreement, the transferring provider may require the receiving provider to demonstrate that the subscriber has expressed a sufficient degree of will before the switch is implemented.”

In addition, RoutIT is clearly clear that Qupra cs. based on the then current COIN CHANGE REQUEST NUMBER 337 version 6 dated 22-06-2007 and COIN CHANGE REQUEST NUMBER 344 version 5 22-06-2007, this includes what an expression of will must comply with at that time, and the method of retrieving under article 5 “disputes”

Disputes: If, as a result of requesting individual authorizations, a donor operator can demonstrate that a recipient operator is structurally unable to submit authorizations as a result of the fact that customers are ported without expressing will, the donor and recipient operator will in the first instance try in mutual consultation. to arrive at a satisfactory solution. If it appears that mutual consultation does not lead to a solution, a market party can take appropriate measures, including legal action to enforce the obligation to have a legally valid authorization.

From the explanation of the policy rule

… If reasonable doubt arises at a later stage as to the presence of (adequate) power of attorney, the other party must turn to the person giving the power of attorney (the subscriber), who will be obliged to provide clarity in reasonableness and fairness. Since the damage has often already been done – the unwanted switch has already been made – it is justified in order to prevent this that the transferring provider, before cooperating in a switch, always first requests proof of authorization from the receiving provider, if there is with that specific provider, there are structural complaints from subscribers about slamming, and systematic deception in the realization of the expressions of will. The Court of Appeal of The Hague points out that in the case of systematic slamming, as a result of which a transferring provider loses subscribers in an improper manner, it is in the transferring provider’s interest to have access to expressions of will, even without an underlying individual complaint from a subscriber, outweighs an agreement between telecom providers to only do this in the event of an individual complaint.

This does not alter the fact that the requesting of proof of power of attorney may be omitted if there is no reason to doubt that the receiving provider has an adequate power of attorney (see also Section 3:70 of the Dutch Civil Code). Unnecessarily requesting expressions of will creates barriers to switching and incurs implementation costs that should be avoided where possible.

The agreements between telecom providers that are being prepared by the COIN Association, including a so-called “low trust” procedure, regarding the power of attorney granted by the subscriber to the receiving provider, provide a good interpretation of requesting expressions of will where necessary.

Specific attention should be paid to any premature termination of the agreement. If the receiving provider requests a switch on behalf of a subscriber, while that subscriber has a fixed-term contract with the transferring provider whose term has not yet expired, the subscriber may owe a lump sum payment to the transferring provider for early termination of the contract . A subscriber will generally want to avoid such a lump sum payment and not want to change provider before the term of the agreement has expired, or the agreement has been tacitly renewed and can therefore be canceled free of charge at any time, subject to any notice period, on the basis of article 7.2a of the law. In the event of premature termination of the agreement, the transferring provider may require the receiving provider to demonstrate that the subscriber has sufficiently expressed his will before the switch is implemented. Incidentally, in every situation of premature termination of a fixed-term agreement, there is not necessarily a termination without this being desired by the subscriber. A subscriber may also have valid reasons for wanting to terminate the agreement prematurely and for accepting any surrender value involved. In that case, the subscriber’s expression of will must show that he has been explicitly informed about a lump sum payment and that he has expressly agreed to bear the costs of the lump sum payment.