On 7 October 2009, the President of the Office of Electronic Communications issued a decision imposing financial penalty amounting to PLN 250,000 on Telekomunikacja Novum Sp. z o.o. for breach of information obligations towards end users.
As a result of administrative proceedings it was found that Telekomunikacja Novum Sp. z o.o. had committed the following breaches in 2008 and 2009:
1) Failure to include in relevant agreements for the provision of telecommunications services the provisions on:
The above-mentioned provisions should be included in the agreements for the provision of telecommunications services in accordance with Article 56 (3) (3), (5), (6), (8) of the Telecommunications Act.
2) Failure to include in the rules and regulations for the provision of telecommunications services the obligation to instruct in a reply to a complaint about exhausting the complaint procedure and the right to pursue a claim by way of court proceedings, and if it is the consumer that files a complaint, about the right to pursue claims by way of mediatory proceedings before the President of UKE. The obligation to include such an instruction in a reply to a complaint results from § 7 (2) of the Ordinance of the Minister of Infrastructure of 1 October 2004 on the complaint procedure and conditions to be met by a complaint about the telecommunications service.
3) Failure to include the following details in replies to the complaints: name of the service provider’s unit handling the complaint and instruction about exhausting the complaint procedure and the rights of users resulting from this fact (which is a breach of obligations referred to in § 7 (2) (1) and (6) of the Ordinance). Moreover, when handling technical complaints Telekomunikacja Novum Sp. z o.o. failed to confirm in writing, within 14 days of the complaint receipt, that it had been submitted as well as to reply within 30 days of the day on which the complaint was filed (which is a breach of § 5 (3) and § 7 (1) of the Ordinance).
The irregularities found as a result of administrative proceedings should be qualified as the breach of information obligations towards end users. Under Article 209 (1) (4) of the Telecommunications Act whoever breaches information obligations shall be subject to financial penalty. The Telecommunications Act provides for issuing a decision by the President of UKE to impose financial penalty of up to 3 per cent of revenues obtained by a given entity in the previous year.
The provisions breached by Telekomunikacja Novum Sp. z o.o. aim at ensuring protection of consumers in their relation with a telecommunications undertaking. Appropriate information given to end users by the service provider constitutes one of the basic conditions for ensuring necessary protection of end users’ interests. The breaches committed by Telekomunikacja Novum Sp. z o.o. directly resulted in lowering the level of end users protection provided in the law due to failure to inform them properly. Therefore it may be expected that users which haven’t been adequately informed and are consequently not aware of their rights frequently tend not to make any use of them.
The President of UKE while assessing the scale of the breach took into account the information presented by the company about the removal of irregularities. The circumstance that the changes implemented in order to remove the irregularities found in a decision does not change the fact that the irregularities actually occurred and therefore the penalty had to be imposed in accordance with the Telecommunications Act.