Wednesday, August 8, 2012

Are you still getting disturbed from Telemarketers despite strong regulations by TRAI- Why so?

The proactive approach of TRAI has ensured the growth of telecom industry is India. The estimated total population of telecom subscribers as of now is somewhere around 100 crores indicating tele-density as 80. While TRAI has ensured growth of telecom industry, it could not look into the system of complaint handling for the problems being faced by telecom subscribers. The industry is still lacking with a redressal system outside the company. The subscribers are at the mercy of the company to get solution to their problem. While all other sectors of important service industry like Banking, Electricity, Insurance has a system of approach to Ombudsman in case the consumer fails to get redressal from his service provider, the Telecom Industry has not been provided with a system of Ombudsman. Why that too for 100 crores customers? Even in a service industry where the system of Ombudsman do exist and the Ombudsman if unable to provide relief to the customer as per his satisfaction, customer has another option of approaching the consumer forum. This option is also not available to Telecom Subscribers as complaint preferred under Consumer Protection Act is barred under section 7B of Indian Telegraph Act, 1885 which covers the disputes between subscriber and the Telegraph Authority. Hon’able High Court of Delhi in its judgement in a case W.P.(C) 8285 of 2010 has held that
“12. Having heard learned counsels for the parties, I am of the view that the impugned order dated 22.09.2010 passed by the State Commission cannot be sustained, as it erroneously holds that the consumer complaint of the petitioner was barred by Section 7B of the Indian Telegraph Act.  It is clear that the respondent no.2 is not a telegraph authority.  The bar under Section 7B, if at all, could have applied, had the dispute arisen between the petitioner and a telegraph authority, which the respondent no.2 is not.  Merely because respondent No. 2 is a licensee under Section 4 of the Indian Telegraph Act, it does not confer on it the status of a telegraph authority.  If the intendment of Director General of Posts & Telegraph were to confer the status of the Telegraph Authority upon the licensees under Section 4, the Director General of Posts & Telegraph, which comes under the Central Government could have issued the requisite notification under Section 3(6) of the Indian Telegraph Act, which has not been done.  The Parliament was conscious of the fact that there could exist a licensee(s) by virtue of Section 4 of the Indian Telegraph Act. However, it has not chosen to fasten the statutory arbitration on the licensee or its consumer under Section 7B.  Else, while mentioning the Telegraph Authority, the legislature could easily have included the “licensee” as one of the parties to an arbitration dispute under Section 7B of the Indian Telegraph Act.”
However, the dilemma of accepting the complaints by consumer forums are still continuing and TRAI should have taken with the concerned statutory authorities for necessary amendments. To the best of my knowledge, TRAI had even not approached concerned constitutional authorities to bring Telecom Services under the ambit of Consumer Forum even after more than 3 years of the time of SC Judgement. Why so?
I have brought the issue of Value Added Services creating nuisance to the subscribers In my post on 20th June 2012 on my blog, The subscribers are not aware of as to when some or the other service of chargeable would get activated to his/her mobile without their consent and the money gets deducted from their prepaid account. This post has been mailed to senior most officials of TRAI through emails and we sincerely expect that TRAI must be in action to address such concerns.
The mobile subscribers are also facing lot of disturbance from the telemarketers who keeps on disturbing the mobile users through their promotional calls. The latest addition to such nuisance is now addition of landline telephone connections.  TRAI has brought out regulations during December 2010 to curb the menace of telemarketers "The Telecom Commercial Communication Customer Preference Regulations, 2010". These regulations had already gone through seven amendments in just less than a year and finally got implemented on 27th September 2011. With the implementation of these regulations, it was expected that now the subscribers would have peaceful life and will get relieved from the disturbance created by the telemarketers. Every subscriber started feeling that the menace being created by telemarketers would become a thing of the past. The main consideration of TRAI regulations was centred on:
1.      To give a choice to the subscribers as to whether he would be interested in fully blocking the receipt of telemarketing calls and messages or receive such calls and messages for certain categories of his interest. For exercising such freedom. The subscribers would be required to get registered his mobile number with NDNC or NCPR to exercise such options.
2.      An option was incorporated in the regulations for even for those subscribers who don’t want either to block the receipt of the calls but at the same time wanted to have an option to identify the call as to whether it is of a telemarketing so as to decide either attend to the call/ messages or reject it due to various situational realities such as person driving the vehicle, busy in meetings or is in roaming

The regulations brought out were looking apparently to be quite favourable to the subscribers and the subscribers were quite sure that now the problem of telemarketing call would be a thing of the past. Such feeling of the subscribers became fuss as the regulations are not enforceable or its difficult to lodge the complaint or subscriber not encouraged enough to report for violations of the regulations. TRAI has quietly not considered any implementation mechanism and the subscribers which now due to volume of the users could be termed as public was feeling cheated and they continue to feel getting disturbed from Telemarketers. Before I start writing on my own experience and subsequent analysis on the TRAI regulations, I would like to take back you to my post on 11 May 2012 on my blog under Telecom Companies violating TRAI regulation on telemarketing calls

I am again bringing out following 6 points of the regulations which are of prime importance for the purpose of proving that the TRAI regulations are totally in-effective and that is the reason the subscribers whether he has got his mobile number registered with NDNC/ NCPR or not is continue to suffer from the menace of telemarketers. If I say that the public has been befooled by bringing out such a regulation will not be violative of any constitutional remarks. I have carried out following actions for the purpose of analysis:
1.      My experience of receiving a telemarketing calls/ message while driving on a toll highway on 11th  January 2012 and then escalating the issue with MTNL (being my service provider), TATA Teleservices (being the service provider through which telemarketing call originated) and TRAI (being the regulatory authority)
2.      Seeking details of the telemarketing calls/SMS being received by other subscribers(whether the subscriber is registered or not with NDNC/NCPR)
3.      My applications under RTI to both i.e MTNL and TRAI (both being Public Authorities under RTI Act 2005) and their responses.
Six Important Regulations:
1. All the telemarketers are required to be registered with TRAI for the purpose of telemarketing business.
2. All the telemarketing calls and SMS are to be carried out during 9.00 AM to 9.00 PM
3. All the telemarketing calls should originate from a number series of 140xx xx xxx so that the receiver of the call can identify the incoming call as telemarketing before opting to receive or not.
4. All the telemarketing SMS should be sent with a 9 alphanumeric character code or identifier and no message of telemarketing nature can be sent through any mobile number.
5. There cannot be telemarketing call to a number which is registered with NCPR. It means the customers who have got their mobile number registered with NCPR cannot receive any call or SMS of telemarketing nature at any cost.
6. Customers not registered with NCPR can also identify the commercial calls because they will all come from numbers starting with '140'. This is a series specially earmarked for telemarketers.

Analysis of the TRAI Regulation on Telecom Commercial Communication Customer Preference
1.      I continue to receive the telemarketing calls and SMSes on an average of more than 30 per day. These numbers of calls and SMSes are in violation of TRAI regulations viz. Calls not getting originated from a number series of 140 xx xx xxx as allocated by DOT and SMS not following 9 alpha-numeric identifier code. This compels the subscribers either to read all the SMSes to see if any useful message doesn’t get deleted accidentally or select whole lot of SMSes in group to delete where many times important messages gets deleted.
2.      I have got two connections, one is not registered with NDNC/NCPR and other is registered with NCPR. The situation of receipt of telemarketing call /SMS is same for both numbers. Hence registration with NCPR seems to be futile exercise implying that TRAI regulations are ineffective as far as their regulations are concerned on unsolicited commercial communications.
3.      Even the subscribers who are registered with NCPR and have blocked their number to receive any of the telemarketing call or SMSes have reported the similar situation as explained above. Their faces looks exactly to be same as that of theme image.
4.      The most of the telemarketers are from the subscribers of TATA, Reliance and includes both landline and mobile connections. The violations are to such an extent that I have stopped picking up any call getting originated from Reliance and TATA and it really worked. There is hardly any call getting originated from BSNL and MTNL numbers.
5.      The TRAI regulations for system of complaint redressal for telemarketing calls do not cover the subscribers who are not registered with NDNC/NCPR even though the above 6 points regulated are for that category of customers. If such customers can not log complaints, then what is the enforcement mechanism for violation of these 6 regulations? Is it not to befool the public that “we have made 6 regulations to protect you but you cannot complain for their violations”. In India how any system can work without any system of complaint? When there is no system of complaint how the constitutional authority would be able to judge the effectiveness of rules and regulations? Is it not to befool by the telecom companies saying that since there are no complaints on records so 100% abiding of rules and regulations?
6.      Even in a case where the subscribers are registered with NDNC/NCPR, the complaint system is such a complicated that he would be required to spend atleast two hours daily to complain. Who has got energy and time to spend minimum of two hours daily and after all for what consideration. He would find a easy route of deleting the messages in multiple selection and continue to bear the brunt of telemarketing calls next day and so on.
7.      It is only the category of those subscribers who are not registered with NDNC/NCPR could have reported the violation of DOT Numbering plan of 140 xx xx xxx and 9 alpha-numeric code. In absence of the complaint handling system, no such violation could be in the notice of the regulators and hence on paper 100% effective regulations just to please themselves befooling the public. Why one year efforts of DOT for implementation of a separate numbering plan for telemarketers down the drain?
8.      There are only 2515 telemarketers who are registered with TRAI for the purpose of telemarketing business. Given the size of the business, it is hard to believe that there are only 2515 telemarketers in India. There are lot many companies/ call centres which are not registered with the TRAI for the purpose of doing telemarketing calls and these are the companies who are creating menace and are not answerable to the customers unless and until these companies are also compelled to get registration with TRAI for the purpose of telemarketing business.
9.      Unless and until action is taken against these telemarketing agencies, there would be addition to more defaulters

My experience while driving on Toll Highway
I was driving through a Toll National Highway 58 between Delhi and Haridwar on 10th  January 2012. As could be appreciated that the driving speed of the vehicle on the National Highway specially which are Toll Roads are relatively higher when compared to good and wide Roads in any city specially Delhi. I was also driving on high speed but within the speed limits when I received a call from a number 09266998873. Since the call was from a normal mobile number and hence thinking this as a non-promotional call, I had immediately withdrawn my vehicle from the National Highway to attend to the call. I was surprised when the caller identified as LIC and wanted to explain me the guaranteed saving plan. I wanted to dig out certain details of the caller so that the same could be communicated to my service provider MTNL at the time of lodging a complaint. Hence I had to pass through a stage of mental disturbance when a call of telemarketing landed onto my mobile without being identified as a telemarketing call compelled me to take my vehicle off the main highway in addition to bearing the charges for receiving incoming call in roaming.  Later on I could find out that the caller was a registered subscriber of TATA Teleservices.
I took up the issue with both service providers i.e MTNL and TATA to take a suitable action against the telemarketers so that such situations are not repeated and at the same time reimburse the cost incurred by me on attending to the call as I was on a roaming at that particular time. As you would say after how much would have been the cost of the call. It may be only Rs. 3/- but unless you impose such cost, it would not deter violators for violating the regulations.
It was rather surprised MTNL was not responding to the mails for about a month and then I had to ensure that they respond to such crucial violation and unless such a tendency is arrested at the initial stage itself such menace would continue and issues won’t get addressed for the rest of the life. After a hectic follow ups, I made sure MTNL responded and it made me further surprised that they were not agreeing to that the telemarketer has violated the regulation. I kept TATA and TRAI in loop and I was astonished that it took almost three months in making them agree that there have been violations of TRAI regulations. As usual every one tried to cover up giving me a feeling that every person in the stakeholders is part and parcel of such violations may be due to either business compulsions or some other oblique motives. I had to face threatening from MTNL for registering a case against me which was counter challenged by me that I will have no other option but to get a FIR registered against General Manager of MTNL who criminally got registered my number with NCPR on their own with an intention that by registering number with NCPR I would not be able to identify what is going on in the industry. Na rahega baans na bajegi Bansuri....It could be any reason. As per the procedure ;aid down for registering any number with NDNC or NCPR, the request has to originate from the number itself. How MTNL got registered my number with NCPR was later found out through RTI. From the information received from MTNL, a clear case of perjury was fit to be slapped on MTNL officials.
I believe that such violations cannot continue unless hand in glove arrangement exists. Finally I had to take recourse to RTI which at least has ensured in agreeing by TRAI that TRAI has not made any provision to address such violations; the result is that the telecom subscribers continue with menace of telemarketing calls and SMSes as bought out below:
The complaint system for the subscribers to report for the telemarketing call / SMS even for the registered subscribers is such a complicated that the person might have to spend at least 5 to 10 minutes in reporting one case of violations. As brought out hereinafter the number of telemarketing calls/ SMS being received by any subscriber on an average must be around 30 per day that means the subscriber might have to spend on an average more than 2 hrs in a day to report to the concerned agency about receiving telemarketing calls/ SMS. Now who will spend such amount of time and after all for what consideration? In a case where the service provider is penalised, the amount goes to exchequer and no amount of penalty is paid to the subscriber who is going through the pains of telemarketing calls. This itself deters the customers to spend their valuable time in escalating the complaints. Non-registered subscribers do not have any system at all for lodging complaints. So it could be easily derived that the regulations of strong nature have been framed with such a weak system of implementation and hence “Telemarketers keep on enjoying your business, we are with you” is the outcome of such a regulation. In view of above, I appeal to all stakeholders which also include the customers:
1.      Customers continue to lodge complaints as per existing system of complaint registration till TRAI relook into the issue of simplification of the complaint process and also plug the loopholes in the system.
2.      A complaint system for Non- registered NCPR subscribers as there are five regulations the beneficiaries of which are only and only non-registered NCPR/NDNC subscribers and such regulations are being violated without any check. Violation is a violation and need to be enforced strictly.
3.      A complaint system through emailing needs to be introduced which could be an effective and most economical tool because just with one email complaint one can report the matter of violations from whole day log report.
4.      Share part of the penalty leviable on the violators with the complainants. Unless this is introduced, the subscriber would deter him/herself for escalating the complaint. After all why waste time without any consideration?
My next post would contain reproduction of the correspondence with MTNL, TATA, and TRAI including details sought under RTI. Meanwhile I look forward your comments/feedback.