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End-user compensation
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39. (1) The Commission may, for the purposes of this section, specify a failure (referred to in this section as a “specified failure”) of a provider of internet access services or number-based interpersonal communications services (referred to in this section as a “provider”) to comply with an obligation under—
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(a) a minimum quality-of-service standard, or
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(b) Regulation 90 of the Code Regulations.
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(2) Where a provider commits a specified failure the provider shall pay compensation to any end-user affected.
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(3) Where the Commission specifies a failure under subsection (1) providers shall, not later than 3 months thereafter, prepare and publish a scheme (in this section referred to as a “compensation scheme”) setting out the compensation that end-users are to be entitled to in respect of the specified failure and a transparent procedure by which compensation shall be paid.
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(4) A compensation scheme shall include at least the following in respect of the specified failure—
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(a) a user-friendly description of the procedure by which compensation is paid,
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(b) the amount of compensation that end-users are entitled to,
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(c) the means by which compensation will be paid, and
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(d) the time periods within which end-users will receive compensation.
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(5) Providers shall ensure that the amount to which end-users are entitled under a compensation scheme is sufficient to compensate them having regard, inter alia, to—
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(a) the nature of any loss of service experienced,
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(b) the duration of any loss of service experienced, and
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(c) any failure on the part of the provider to keep end-users informed throughout the process.
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(6) A provider shall not charge an end-user any fee in connection with the payment of compensation.
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(7) The Commission may determine that providers pay compensation to end-users in respect of a specified failure without the need for an end-user to make a complaint or a claim for compensation.
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(8) A compensation scheme shall be published by the provider on its website in a clear and comprehensible format that is easily accessible by end-users and, in particular, by end-users with disabilities and in any other manner as may be specified by the Commission.
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(9) Where a provider prepares a compensation scheme it shall ensure that end-users are informed about the scheme in a user-friendly manner.
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(10) Where a provider prepares a compensation scheme it shall ensure that end-users are informed, in a clear and comprehensible way, that the compensation scheme does not prejudice their right to pursue compensation in respect of a specified failure by other legal means or proceedings.
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(11) The Commission may specify the amount of compensation to be payable in respect of a specified failure.
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(12) Providers shall report to the Commission annually in relation to the operation of this section in such manner as may be required by the Commission, detailing in particular, in respect of the period to which the report relates—
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(a) the specified failures in respect of which compensation was paid by the provider,
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(b) the number of instances of each specified failure in respect of which compensation was paid by the provider,
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(c) the amount of compensation that was paid in respect of each specified failure by the provider, and
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(d) the average time taken by the provider to pay compensation to an end-user.
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(13) The Commission may require a provider to submit to an independent audit or review, paid for by the provider, on its compliance with this section.
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(14) This section, other than s ubsections (1), (7), (11) and (13), is a regulatory provision.
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(15) This section is without prejudice to the right of—
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(a) an end-user to pursue compensation in respect of a specified failure by other legal means or proceedings, including where the end-user considers any compensation granted under this section is not adequate, and
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(b) the Commission or any other person to bring proceedings in respect of a specified failure.
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