“No Evidence of Wrongdoing”

In responses to consumers the regulators frequently claims that there is “no evidence of wrongdoing,” so here in black and white is the current position.

• Consumers are complaining that they have been charged by Mobitrans for a service which they did not consent to and have not even heard of.
• EE, and Mobitrans, both claim that these charges were accepted by those complaining, but neither company has been able to provide any valid evidence of this consent.
• Even without evidence, EE and Mobitrans are refusing to refund consumers, simply insisting that they must have agreed to the charges at some point. The burden of proof is being placed on the consumer to somehow prove that they didn’t authorize the charges, rather than on the operator to prove that the consumer did authorize the charge.

Does that sound like there’s no evidence of wrongdoing, and that nothing needs investigating? Of course not.

If the consumers consented to these charges, where is the evidence? And if there is no evidence, how on earth can EE justify taking money from consumers’ bank accounts on the mere say-so of a third party, despite objections from the customer? Would banks be allowed to simply pay customers’ money to any company that asked for it, and demand that the account holder prove that they hadn’t agreed to this? Of course not.

If EE or Mobitrans can’t provide any evidence to back up their claims and yet refuse to refund customer then that is theft.

Ofcom and PhonepayPlus contradicting each other

It seems that Ofcom and PhonepayPlus are contradicting each other in their responses.

In an email date 13th October, Ofcom replied:

In light of the concerns you raised, we have followed up with PhonepayPlus to better understand the status of the disputed service. PhonepayPlus advised us that their initial response to you was based on their understanding at that time, based on an initial examination of the Mobitrans service, that the service was an ‘own portal’ and, as such, was outside their regulatory remit.

PhonepayPlus have, however, continued to review their provisional assessment  and, subsequently, upon further examination, now consider that Mobitrans’ service may not fully meet the criteria for an ‘own portal’ service as set out in the 2012 Ofcom Review of Premium Rate Services. Therefore PhonepayPlus is currently pursuing this matter further with EE.

In the event that the Mobitrans service does not qualify as an ‘own portal’ service then it would be captured by PhonepayPlus regulation and they will ensure that your complaint will form part of any future investigation into the service. PhonepayPlus has also said that they will further examine the concerns you raised about Payforit and will provide a more detailed response to you in due course.

In my phonecall to PhonepayPlus today I was told that this was incorrect, that PhonepayPlus still considered Mobitrans to be an “Own Portal” service, that Ofcom was “shouldn’t have told me that.”

PhonepayPlus still consider Mobitrans to be an “Own Portal” service and outside their remit.

I am still awaiting a further response from Ofcom.

Response to Ofcom

Open letter to Ofcom in response to letter dated 5th October.

Thank you for your initial response to my query on the ongoing complaints about Mobitrans’s unauthorised charges to EE customers’ bills.

In the case of my personal complaint, I am happy to wait for PhonepayPlus’s re-investigation of their initial ruling that the matter was beyond their remit. I hope that they will this time find that they able to pursue the matter.

I note as suggested Ofcom’s review in 2011 in which they decided that as Payforit still had similarities with other Premium Rate services it was inappropriate for it to be unregulated. I feel that the evidence I have laid out and the ongoing situation with EE and Mobitrans makes it very clear that this was the correct decision.

However, I do not feel that the main complaint I raised has been given due attention.

The current level of regulation is clearly insufficient and not fit for purpose. They are numerous complaints of unscrupulous or incompetent premium rate operators making charges against consumers against their wishes or intentions, and the process for seeking a refund is both weighted strongly against the consumer as it is designed, but is also not being followed by operators.

As I stated in my letter, I told that I am expected to demonstrate that I did not subscribe to the service and yet after many hours of effort — and £70 of phone calls and many emails — I have not been able to speak to anyone at EE or Mobitrans who  are capable of providing me with the evidence which they are supposed to and which would able to argue my case. I have been provided both with meaningless assurances and suggestions that I may have accidentally subscribed (which in itself runs counter to the requirement for “robust checking of consent”), and with sham evidence which, in my professional opinion as a network analyst, proves nothing and which would not remotely stand up in court.

It is bad enough that the onus is on the consumer to prove a negative when a company takes money from them and claims consent. It is however utterly unacceptable that these companies are able to present this sham evidence as fact and refuse any real evidence. If I, as a professional network analyst, am finding it nigh-on impossible to contest these spurious charges given the lack of cooperation of EE and Mobitrans, how is the average layman expected to fare?

The consumer should be receiving proper protection and support from the watchdog, and the onus should be on the premium rate and network operators to prove beyond reasonable doubt that the customer consented. Furthermore, these attempts to fob people off with technical-sounding sham evidence should be taken very seriously as they are at best a demonstration of a lack of technical competence required for running such a service, and more likely a deliberate and conscious attempt to mislead the consumer.

Reply from Ofcom: PhonepayPlus are now reconsidering “Own Portal” ruling

I’ve had a reply from Ofcom to a detailed letter of complaint about the situation I sent in August.

Thank you for your letter and attachments dated 24 August 2015 about the unauthorised premium rate charges you were billed for by EE. I am sorry to hear of the difficulties you experienced and that you do not consider your concerns have been addressed. I also apologise for the delay in replying but it was necessary to show the papers to relevant colleagues and seek their advice.

In light of the concerns you raised, we have followed up with PhonepayPlus to better understand the status of the disputed service. PhonepayPlus advised us that their initial response to you was based on their understanding at that time, based on an initial examination of the Mobitrans service, that the service was an ‘own portal’ and, as such, was outside their regulatory remit.

PhonepayPlus have, however, continued to review their provisional assessment and, subsequently, upon further examination, now consider that Mobitrans’ service may not fully meet the criteria for an ‘own portal’ service as set out in the 2012 Ofcom Review of Premium Rate Services. Therefore PhonepayPlus is currently pursuing this matter further with EE.

In the event that the Mobitrans service does not qualify as an ‘own portal’ service then it would be captured by PhonepayPlus regulation and they will ensure that your complaint will form part of any future investigation into the service. PhonepayPlus has also said that they will further examine the concerns you raised about Payforit and will provide a more detailed response to you in due course.

You may also be interested to know that Ofcom undertook a review of the Payforit scheme in 2011. Although the industry felt this type of service should be removed from regulation, we concluded there were still similarities with other premium rate services. In view of the associated risks, our assessment was that removing regulation was not appropriate and Payforit should be regulated by PhonepayPlus. If you would like to see a copy of our statement, it can be found here: http://stakeholders.ofcom.org.uk/consultations/review-premium-rate-services/statement/.

You could hardly accuse anyone here of being over-eager in their sense of urgency in dealing with the matter.