Nigeria: Telephone Subscribers' Rights And Remedies For Dropped Calls And Undelivered Text Messages: The Legal Perspective.1

Last Updated: 10 April 2018
Article by Benedict Oregbemhe

1. Introduction

In telephony, dropped calls may be due to the service providers' fault, local environment constraints, and cell phone problems. On the part of the service provider, dropped calls might result from inadequate radio coverage either in the downlink or uplink connection capacity of the provider. The radio coverage of a telecommunications company is the geographical location where the sta-tion communicates or receives signals. Radio station coverage depends on cer-tain factors, such as the topography of the area, buildings, technology, radio frequency and the connectivity of the subscriber. Some radio frequencies pen-etrate better than others and provide better signals, and effective and efficient radio stations, inter alia, are a function of a taller antenna masts, higher power transmissions, and better quality antennas.

In mobile telephony, uplink and downlink are different in frequency transmis-sions. Uplink means the transmission of frequencies or signals from a mobile cell phone to a Base Station while downlink is the transmission of frequency or signals from a Base Station to a mobile cell phone. Dropped calls may occur as a result of low frequencies or signals transmission in the uplink or downlink or an external interruption in the communications between the Base Station and the mobile device.

A Base Station communicates with cell phones in order to place a phone call. The cell phone automatically connects to the nearest tower when a call attempt is made and continues to communicate with that tower as long as it remains the closest one within range. If the person making the phone call is on the move, i.e., travelling, walking, or driving, then, the call will likely move out of the range of the closest tower and a handoff will automatically occur to move the call to the new closest tower.

In the above scenario, the handoff will occur without a problem, but occasion-ally, there will be a complication and the call may be dropped during the handoff. This complication could be due to extreme cell traffic on either one of the tow-ers, glitches in the backend software, power outages and encounters with a "dead zone". A "dead zone" in the telecoms industry means an area with no reception available from the Base Station.2

On the other hand, the local environment in which we live also contributes to the incidence of dropped calls. The type of construction materials used in our houses or offices contribute to bad reception.3 The cell phone itself may be the cause of dropped calls. A cell phone with a damaged antenna, will likely expe-rience poor cell phone reception, data loss and frequent dropped calls. A cell phone with a low battery will likely have a high degree of dropped calls. A sub-standard cell phone may experience difficulties in connecting or communicating with the cell tower to continue or sustain a phone conversation. The dropped calls may be as a result of the inability of the cell phone antenna to connect or communicate with the cell towers for an effective phone call.4

2. Undelivered text messages

Several reasons account for undelivered text messages. These reasons in-clude; when the cell phone is turned off, or within a dead zone area, is damaged and unable to connect or communicate with a cell tower, or is out of range of a cell tower. A text message will not be delivered if the recipient number is invalid or does not exist, or if the telecoms operators' filters are applied due to local regulations,5 or if the telephone line has been de-activated due to improper reg-istration or documentation etc. When a text message is sent or initiated, the telephone service provider holds the text message until it is able to connect with the recipient cell phone number to deliver the text message. If the text message remains undelivered for a certain amount of time, depending on the time limit of the service provider, the text message will be abandoned and undelivered.

In both dropped calls and undelivered text messages discussed above, the sub-scriber tacitly confers a benefit on the telecoms service provider, i.e., the ex-penditure of money in that the service provider deducts the airtime or call credit of the subscriber for the entire time when the call was dropped or as a result of the text message remaining undelivered. The maker of a phone call intends to communicate or connect with the call recipient and the value or benefit con-ferred on the telecoms service provider is the utilisation of the caller's airtime or call credit. If the subscriber's airtime or call credit is deducted by the telecoms service provider without a reciprocal benefit conferred on the subscriber as a result of dropped calls or undelivered text messages, the subscriber is thereby short changed in the process. The above scenario is tantamount to a failed consideration in the law of contract. Since the relationship between a subscriber and a telecoms service provider is contractual, the principles of the law of con-tract with respect to failed consideration apply with equal force.

3. Failure of consideration by a telecommunication service provider

In the law of contract, a failure of consideration means that a state of affairs contemplated as the basis for payment has failed to materialise, or if it did exist, has failed to sustain itself.6 It means therefore that a failure can occur if a tele-coms service provider fails to perform its own side of the bargain to sustain a continued connection or communication of the subscriber calls or to deliver the subscriber's text message to the recipient. Consideration, when used in the re-lationship between a telecoms service provider and its subscriber, refers to the condition which formed the basis of the subscriber's transfer of benefit or value to the telecoms service provider. It is only when the condition (the continued connection with the recipient of the call) fails, that there is a failure of consider-ation (an inability or failure to deliver the text message) on the part of the tele-coms service operator.

A party who has paid money to another for a consideration that has totally failed under a contract is entitled to claim the money back from the other party.7 In the same vein, a subscriber, whose airtime or call credit has been deducted by the telecoms service provider for dropped calls for the entire seconds or minutes which never added value or benefit to the subscriber, is entitled to a refund of the exact or equivalent airtime or call credit deducted from him. It is the present practice that, once a text message is composed and sent, the value or cost of the text message is automatically removed or deducted from the sub-scriber's available airtime or call credit, irrespective of whether the text mes-sage is delivered or not. The telecoms service provider usually notifies the subscriber of the undelivered text message. In this scenario, the subscriber is entitled to a refund of the value or cost of the undelivered text message due to a total failure of consideration on the part of the telecoms service operator to deliver the text message.8

The subscriber should not bear the financial burden of dropped calls and unde-livered text messages, considering that the contract between the telecoms ser-vice provider and the subscriber is essentially a contract of adhesion that had not been negotiated, and in which the parties did not have equal bargaining powers. The telecoms service provider dictates the terms of the contract, there-fore, the contractual relationship should be construed more in favour of the sub-scriber under the principle of contra proferentem.

When a call is dropped or a text message is not delivered and the telecoms service provider deducts the subscriber's available airtime or call credit, the subscriber automatically suffers a financial loss and the telecoms service pro-vider is conferred with a financial benefit. Therefore, when a telecoms service provider fails to execute or carry out the instructions of the subscriber by failing to deliver the text message, the service provider unjustly enriches itself and should refund to the subscriber the deducted airtime or call credit.

Footnotes

1 Benedict Oregbemhe, Senior Associate Dispute Resolution Department, SPA Ajibade & Co., Lagos, NIGERIA. 

2 Jeff, "Causes of dropped calls and how to fix them", 26 October 2012, http://www.ubersignal.com/blog/causes-of-dropped-calls-and-how-to-fix-them accessed 19 February 2018.

3 Ibid

4 Ibid

5 Edwin Carvalho, "SMS 101: Why Messages Fail to Deliver", 23 September 2015, https://www.nexmo.com/blog/2015/09/23/sms-101-why-messages-fail-to-deliver /, accessed 19 February 2018.

6 Prof. Festus Emiri, The Law of Restitution in Nigeria, Malthouse Press, Nigeria, 2012.

7 Nwaolisah v. Nwabufoh (2011) NWLR (Pt. 1268) 600 at 633, paras C–D, per Adekeye, J.S.C. (as he then was) and at p. 640, para A, per Rhodes-Vivour, J.S.C.

8 By the nature of the contract between the subscriber and the service provider it is implied that, once the sub-scriber has available airtime or call credit to sustain the transaction, the service provider will execute the sub-scriber's instruction by delivering the text message to the recipient. If the text message as initiated cannot be delivered, the service provider should not be allowed to unjustly enrich itself to the detriment of the subscriber

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