Cyber Law: Complaints Regarding Services of Telecommunications Companies

The General Consumer Code of Practice for the Communications and Multimedia Industry Malaysia furnishes s. 188(1) of the CMA 1998. 

For the purposes of consumer complaints, regard should be given to, amongst others, Part 3 (Complaints Handling) and Part 4 (Code Compliance by Service Providers) of the code. Part 3 provides the rules which are to be observed in terms of how telcos handle consumer complains. These are in relation to: Visibility & Accessibility, Special Needs, Responsiveness, Charges, Further recourse, Suspension charges, Internal data collection and Analysis, Review, Changes to complaint handling processes and Retention of records. Since time is money, consumers should be informed as to some of their expectations on the responsiveness of the telcos under the code. To highlight a few:

Part 4 states the methods which Service Providers are to comply with to ensure their adherence to the Code and Sub-codes:-

• Develop appropriate compliance policy and procedures
• Ensure that the compliance policy, procedures and the Code are publicized to the employees of the Service Provider.
• Develop appropriate procedures or programmes to educate employees of Code compliance issues
• Implement a line management structure to monitor compliance of the policies, procedures and the Code
• Designate or set up a specific unit to attend to, coordinate or otherwise handle Code compliance related issues
• To liaise with the Consumer Forum in order to get updates on the Code
• Where relevant, ensure that the Code is published to third parties who are working together with the Service Provider in the provision of the services

In the event a consumer intends to launch a complain, he/she should note Part 6 para 6B (Consumer Complaints), amongst others:-

There are two forums to which a consumer can lodge a complaint – Communications and Multimedia Consumer Forum of Malaysia (CFM) and Communications and Multimedia Content Forum of Malaysia (CMCF). When lodging complaints, the former should not be confused with the latter – CFM is a forum which hear complaints on communication services whereas CMCF is a forum which hear complaints on content via electronic medium. Hence, should a consumer wish to lodge a complaint regarding telcos, CFM is the proper forum. 

A consumer can file his/her complaint to CFM by way of these avenues:

It is however vital to note that the company a consumer is complaining about must be given the opportunity to resolve the dispute first before seeking recourse to the CFM.

If a consumer is still not satisfied with the decision of the CFM, he/she can refer the complaint to the MCMC provided that he has exhausted his recourse to the company and the CFM. He/she can:

s. 69 of the CMA 1998 states the duty of the MCMC with regard to handling complaints: 

(1) The Commission may conduct an investigation on a matter referred to in section 68 upon a written complaint by a person.

(2) The complaint shall specify the person against whom the complaint is made (“the respondent”).

(3) If it appears to the Commission that—

(a) a person wishes to make a complaint; and

(b) the person requires assistance to formulate the complaint or to reduce it into writing, it is the duty of the Commission to take reasonable steps to provide appropriate assistance to the person.

(4) If a complaint has been made to the Commission under this section, the Commission may make inquiries of the respondent for the purpose of deciding—

(a) whether the Commission has power to investigate the matter to which the complaint relates; or

(b) whether the Commission should, in its discretion, investigate the matter.

(5) If the Commission decides not to investigate, or not to investigate further, a matter to which a complaint relates, it shall as soon as practicable and in such manner as it thinks fit, inform the complainant and the respondent of the decision and the reasons for the decision.

s. 70(1) of the 1998 Act provides that the MCMC is obligated to inform the respondent that the matter to which the complaint relates is to be investigated before commencing an investigation of the matter.

In line with the requirement under s. 196 of the 1998 Act where the Commission is to establish procedures for consumer complaints, the “Guidelines for Complaints Handling” was introduced by MCMC in 2004. Under the guidelines, amongst others:

• The complainant shall include the following in the Notification of Complaint: (a) the names and addresses of the parties; (b) the point(s) at issue and a brief statement of facts; (c) a copy of any relevant supporting document, contract or agreement, if any, which relates to the complaint including proof of previous correspondence with the relevant licensee or the Forum; and (d) the relief or remedy sought. 
• In the event that the complainant suffers from a disability or a disadvantaged due to lack of language and/or writing skills, a complainant may seek aid from designated officers of the MCMC’s consumer complaints handling unit. 
• Upon receipt of a complaint, the MCMC will notify the relevant company of the same in writing. The company is compelled to reply to the Commission within 15 days from the receipt of the MCMC’s notification. A reminder letter would be issued if the company fails to meet the deadline. All correspondences shall be copied to the Complainant. 
• The relevant company may request for an extension of time from the MCMC to handle the complaint, in which case the complainant must be duly informed
• In the event that there is no resolution offered by the relevant licensee or if the relevant licensee does not reply to the Commission’s Notification, the Commission will act to resolve the complaint by deciding on the matter and the Commission’s decision shall be binding on both parties
• Alternatively, if there is an offer for resolution by the relevant licensee but the complainant is not satisfied with the same, the Commission will decide whether the rejection by the complainant of the resolution offered is reasonable. If the rejection is deemed by the Commission to be unreasonable, the Commission shall decide that the complainant accept the said resolution and the file on the complaint will be closed. However, if the rejection of the resolution offered by the licensee is determined to be reasonable, the Commission will act to resolve the complaint by deciding on the matter.

What if the consumer is still not satisfied with the decision of the Commission? Fret not, the consumer can appeal to the Appeal Tribunal.

S.120 of the CMA 1998 states:-

1. Subject to subsection (2), a person who is aggrieved or whose interest is adversely affected by a decision or direction (but not a determination) of the Commission made pursuant to the performance of its powers and functions under this Act or its subsidiary legislation, may appeal to the Appeal Tribunal for a review of the merits and the process of certain decisions or directions of the Commission, unless the matter is not subject to an appeal to the Appeal Tribunal.
2. Subject to subsection 17(1), the Minister may determine the decisions or directions of the Commission which are not subject to appeal to the Appeal Tribunal under subsection (1).

It is noted that any decision by the Appeal Tribunal is conclusive and binding on the parties to the appeal and it is not subject to further appeal.

Judicial review is a procedure by which a court reviews the decision of a public body (in this case, the MCMC and the Appeal Tribunal).

S. 121 of the CMA 1998 states:-

1. A person affected by a decision or other action of the Minister or Commission may apply to the court for a judicial review of such decision or other action.
2. A person shall not apply to the court for a judicial review unless that person has first exhausted all other remedies provided under this Act.

It is however important to note that only in the very exceptional case where the decision of the MCMC and/or the Appeal Tribunal has caused an injustice to the consumer can the courts allow a judicial review. As the Court of Appeal stated in the case of Hazlinda bte Hamzah v Kumon Method of Learning Centre [2006] 3 MLJ 124:-

“Being a specialist body, the Tribunal has been conferred with extraordinary powers to do speedy justice for consumers. As such, its awards should not be struck down save in the rarest of cases, where it has misinterpreted some provision of the Act in such a way to produce an injustice. For courts should be ever remindful that certiorari is not a remedy that is available as of right. It is a discretionary remedy. It is not every error of law committed by an inferior tribunal that entitles the High Court to issue certiorari. It must be demonstrated that the error has occasioned an injustice in a broad and general sense.”

It is therefore suggested that a consumer should only pursue this action should he believes that he has suffered a substantial injustice which is not remedied by the MCMC and/or the Appeal Tribunal and that he has a very solid basis for an application for judicial review.