TELUS CUSTOMER RECEIVES $24 000 CELL PHONE BILL AFTER PHONE STOLEN

Dr. Jesse Jansen, a Vancouver emergency room physician, lost his cell phone at a hotel while on vacation in Chicago. Jansen was confident that hotel staff would locate his phone--perhaps between the cushions of a couch and return it to him in due course. As Jansen stated to the press: "Theft wasn't at the top of my radar."4 As well, Jansen wrongly believed at that time that if he reported his new $600 cell phone missing, it would be permanently deactivated. Jansen ultimately waited two weeks before contacting Telus, during which time 8 GB in data roaming was consumed by whomever stole his cell phone or came into possession of it. According to press accounts, when Jansen complained to Telus about the highly distressing $24000 bill he subsequently received for data roaming, Telus advised that he had provided text consent to incurring additional roaming charges and he was therefore responsible for paying the full amount of the bill.

Under the CRT's Wireless Code-designed to protect consumers on a variety of fronts- a service provider is required to "suspend national and international data roaming charges once they reach $100 within a single monthly billing cycle unless the account holder or authorized user expressly consents to pay additional charges. "When Telus sent a text to Janssen's cell phone number pursuant to this CRTC requirement, it received a reply of "yes." It would seem that the thief or other unauthorized person had replied "yes" to the text message sent by Telus. Most certainly, Jansen had not.

Though the exact terms of the contract between Telus and Jansen were not reported in the media, Telus's standard "Mobility Service Terms" for British Columbia recites a number of obligations between the customer and the service provider. Clause 15 provides that the Telus customer "is responsible for ... [the] account and for the activities of anyone who uses it." It would seem, therefore, that Jansen is responsible for the extra data roaming charges. That is until Jansen notified Telus that his cell phone was missing, he would be contractually responsible for the account, regardless of who was actually using his cell phone even a thief. On a related front, clause 16 in Telus's Mobility Service Terms also points to Janssen's liability. That clause states: "If your device is lost or stolen, please contact TELUS immediately. You will continue to be responsible for the use of your device until you notify us. Following notification of the loss or theft, you will no longer be responsible for pay-per-use charges. However, you will remain responsible for all regular recurring charges, such as your rate plan fee."

There is an argument that Jansen is not liable, however, and this is based on the CRTC Wireless Code provision that the service provider "must suspend data roaming once they reach $100 within a single monthly billing, unless the account holder or authorized user expressly consents to pay additional charges." As noted, no such consent was secured since the thief or other culprit is not "the account holder or authorized user." However, this interpretation is unlikely to succeed since it would make Telus responsible for data roaming above $100 even where an account holder, such as Jansen, knew the phone was missing but waited weeks before contacting Telus to report the loss.

Jansen subsequently rejected telus's offer to lower his bill to $1224. His view was that $500 would be a fairer number as it represented the charge Janssen would have faced had he purchased a US roaming package for 8 GB of data in preparation for his trip to Chicago. As well, Jansen stated to the media that as a victim of a fraud, he "was hoping that there would be some degree of protection afforded" to him. Telus was unmoved by this counteroffer. Next, Jansen lodged a complaint with the Commission for Complaints for Telecommunications Services (CCTS). As part of that process, Telus made the submission that "the sole responsibility lies with Mr. Janssen" because he did not report his lost phone to Telus for two weeks.?

Ultimately, the matter did not proceed to a CCTS investigation because Jansen decided to accept Telus's renewed offer to lower his bill to $1224.

Though Telus's legal argument appears to be sound that Janssen is responsible- the telecommunications company is open to criticism for tie taking steps to detect or suspect fraud particularly given the extreme facts of the case. Janssen's usual monthly charge on his cell phone bill was $67. As the data consumption on Janssen's account started rising precipitously, Telus arguably should have done more to prevent its escalation due to fraud. For example, Janssen told the press that every time he contacts Telus, he has to provide a verification code as a security measure: "They [Telus] made me verify who I was constantly, but to charge me $24000, there was no verification", Jansen stated to the media.

Perhaps, then, Telus should change its practice and require a valid verification code when seeking consent from the account holder or authorized user to permit overages. This step would not alter the customer's ultimate responsibility for his or her own account but it would assist in reducing the fall-out from a cell phone theft. In short, a thief is unlikely to know the verification code associated with the account and would be blocked at that point.

Critical Analysis: On what contractual basis can Jansen argue that he should only be obligated to pay for a US roaming package as opposed to being responsible for all the data roaming charges incurred prior to his reporting his cell phone as missing? Do you agree with Telus's decision to offer a compromise on Janssen's bill? Do you agree with Janssen's decision to accept the compromise proposed by Telus? Why? What risk did Jansen _take when he rejected Telus's first offer to lower his cell phone bill to $1224?