Test yourself: Who is a Consumer and what is a Consumer Contract ?

One of our recent posts raised an interesting question which many ISPs and telcos seem to overlook; Who is a ‘Consumer’ under the CommsAlliance Telecommunications Consumer Protections Code 628:2007 (the “TCP Code”) ?

 The answer has some pretty serious consequences.

When the word ‘Consumer’ is used, one usually thinks mum, dad and the kids, right ? Well, its potentially more like mum, dad, the kids, the local milk bar operator, the local accountant, the local builder and the local solicitor, just to name a few under the TCP Code. So this puts a heap of contracts for telecommunications services into the contracts with ‘Consumers’ pile.

The TCP Code

The TCP Code defines a ‘Consumer’ as:

(a) a person who acquires a Consumer Product for the primary purpose of personal or domestic use; or

(b) a business or non-profit organisation which at the time it enters into the Consumer Contract:
(i) does not have a genuine and reasonable opportunity to negotiate the terms of the Consumer Contract; and
(ii) has or will have an annual spend with the Supplier which is, or is estimated on reasonable grounds by the Supplier to be, no greater than $20,000, other than a person acquiring a Consumer Product for resale.

And ‘Consumer Contract’ as:

an agreement between a Supplier and a Consumer for the supply of a Consumer Product, other than for the supply of content services by third parties who are not Carriage Service Providers.

(Note ‘Consumer Product’ includes a Carriage Service)

Fair Trading Laws

It is worth noting that state-based consumer fair trading laws, like Victoria’s Fair Trading Act 1999, contemplate ‘consumer contracts’ as being:

an agreement, whether or not in writing and whether of specific or general use, to supply goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, for the purposes of the ordinary personal, domestic or household use or consumption of those goods or services

Don’t forget

This inconsistency makes it even easier for the industry to forget its obligations under the TCP Code, not to mention those under the state-based Fair Trading laws.

Don’t get caught out !  Our tip is to carefully refer to both your TCP Code obligations and those under state-based consumer laws at the same time when reviewing your customer-facing processes.