Three mobile - A faked sales recording supports their case?

[Johnnie]

I have recently had cause to complain to Otelo in order to resolve an issue with '3' mobile. For the last year '3' have been insistent that I agreed to have a contract with them - despite the fact that I refused to agree to a contract with their sales agent (when the sales agent cold called over a year ago).

 

Despite requests from myself and the Trading Standards Office, '3' (seven months ago) were unable to provide any written proof of this contract or a recording of the sales call (which in any case would prove that I refused to agree to a contract and told the sales agent that I was 'not interested'). During Otelo's investigation '3' submitted a recording which they claim is the sales call with myself. I have reason to believe this recording is a fraud: In their report Otelo detail how during this conversation I compare my current contract with that being offered and agree with the salesman that the contract with '3' is £20 a month cheaper - much better value than my current contract. In point of fact I have NEVER had a contract phone and I enjoy Orange PAYG service topping up by only £10 per month (£20 cheaper than £10? How is this possible?).

 

I believe '3' have fabricated this recording in order to avoid being subject to the regulations governing mis-selling , recently introduced/reinforced, and to avoid any comeback on the considerable amount of harrassment I have suffered from their debt collection agency.

 

Otelo have refused to provide a copy of this recording, despite using it as the primary piece of evidence in their investigation.

 

If an authentic recording of the sales call did exist it would prove that I refused to enter a contract with '3', as I stated to them in a letter seven months ago.

 

'3' Insist the fictitious contract was 'activated' yet the phone and SIM remain packaged as received. How does this meet the definition of activated? The phone and SIM were received without paperwork of any kind. I negotiated with Mr Irving of '3' to return the phone in exchange for written proof that any claim '3' held to a contract with me was nulified - I am aware from many, many reports by consumers posted on the internet that phones posted back to '3' are often misplaced before they reach their destination and the ones that do are more often than not received with different and more serious faults than they had when they were despatched back to '3' - I refused to return the phone without the confirmation as discussed. Mr Irving now denies this conversation took place.

 

Since Otelo seem to be protecting their client and they will close their case without giving me sufficient time to raise a SAR, I am at a loss to understand who I can rely on to enforce the laws that exist to protect me.

 

What now?

[rebel11]

Hi John

 

Welcome to CAG

 

I would get the SAR under way. Don't worry about Otelo closing the file, once you get the evidence from the SAR, you can ask Otelo to re - open the case. If they

don't threaten them with legal acion. The evidence will contridict with what '3' are saying. It could be any Tom, Dick or Harry on the recording. Make sure your SAR

Request covers the Recording. You might even find the '3' do a 'U' turn.

[Johnnie]

Thanks rebel,

I made some enquiries about a SAR yesterday. I will follow them through and update with any developments.

[buzby]

Whether a contract exists will depend on whether any money changed hands. If it did, then a contract exists. Further, OTELO has no obligation to you to provide anything, if 3UK have your payment details it will be accepted that these were provided by you at some stage, unless you are asserting fraud - and this can be very difficult. OTELO is an arbitrator, and although 3UK pay them for the adjudication services, calling them their 'client' won't proceed to a resolution in any meaningful way.

 

What does interest me is that you have a phone and a SIM. (these can be activated without ever being unpacked) it actially means the SIM is activated on their network, should you choose to try it. Just because you did not doesn;t mean there's no liability. Surely, you don't expect to keep these at no cost? You have the goods, surely you expected to pay for the service? You would have been in a much better position if you returned their property (and kept a receipt), as this way there is no way they could claim you owe them anything. As it stands, they can - as I doubt they would have send a phone, unasked without any payment commitment.

[Human Writes]

I'd be careful about alleging that 3 have forged evidence they have submitted to Otelo - this is an alternative dispute resolution scheme meant to resolve civil disputes about telecommunications services, your alleging that three have comitted a serious crime, the very nature of your allegation could prevent Otelo from assisting you - anyway without listening to the recording your in no position to know what three's evidence does or does not say.

 

Get the SAR and then appeal Otelo's decision, I'm surprised the Otelo have refused to supply you with the call recording on which they are basing their findings, you've got a right to the call recording I'd insist that Otelo provide a copy as well as three, the call recording is your personal data and Otelo would have to disclose the call recording on receipt of a SAR as well.

[Johnnie]

The SAR is going off today.

 

"Get the SAR and then appeal Otelo's decision, I'm surprised the Otelo have refused to supply you with the call recording on which they are basing their findings, you've got a right to the call recording I'd insist that Otelo provide a copy as well as three, the call recording is your personal data and Otelo would have to disclose the call recording on receipt of a SAR as well. "

 

I am also very disappointed that the investigation did not include disclosure of this material. Hardly an impartial or transparent report if the evidence presented is not made freely available to both parties.

 

"...anyway without listening to the recording your in no position to know what three's evidence does or does not say."

 

Otelo gave a detailed account of the claimed recording in their report.

 

There is very little room for me to dispute the contents of the claimed call, knowing that I refused to agree to a contract, without claiming that the recording is fraudulent.

[Johnnie]

@ Human Writes: "I'd insist that Otelo provide a copy as well as three, the call recording is your personal data and Otelo would have to disclose the call recording on receipt of a SAR as well."

 

I imagine that a SAR to Otelo would be very useful - since this would perhaps provide the exact version of the recording that they used in the investigation. In reply to my letter asking for an actual copy of the recording on which Otelo based their judgement Otelo state:

 

"Thank you for your letter dated 18 October.

 

You refer to information supplied to this office by Three and state you require a copy of this information before commenting further.

 

The information you refer to does not belong to Otelo. In order to obtain copies of any information relating to you that is held by Three you can submit what is know as a Subject Access Request (SAR) under the Data Protection Act 1998. Further details of how you can make such a request can be found on the Information Commissioner's Office website at www ico gov uk or by telephone on 030 123 1113.

 

I must advise that Otelo's process does not allow for additional time for you to obtain information using a SAR. I note your comments but you must confirm how you wish to proceed within the timeframe advised in my last correspondance."

 

According to the third paragraph there - it would appear that I can't SAR Otelo?

Edited November 1, 2010 by Johnnie
typo

[buzby]

I'm unaware of any 'right' that extends to Otello being required to provide any evidence used in their findings to a complainant. Further, there is no right to any call recording, a transcription is the usual process, and supplied in written form. However, as the OP has not confirmed whether any payment to 3UK was made, Id assume on balance there has been, and as a result a contract would exist.

[Johnnie]

No money has changed hands. No payments have been made. No form of payment comittment or contract has ever been agreed to.

 

A genuine sales recording would confirm that a mobile phone offered on contract was refused.

[buzby]

So, a network provided goods (by way of a mobilehandset) with no money paid or exchanged? Are you sure? As verification of payment method is required in order to establish a contract, I'd be gobsmacked if they hadn't. Also, you so still have the goods, don't you?

[Johnnie]

Yes, I refused to have a contract phone, but one turned up anyway.

 

Yes, I still have the goods. I don't want the goods, but they are their own proof they have not been used. As previously mentioned I arranged to return them to '3' in exchange for written proof that the contract was voided and no money owed.

[Johnnie]

and btw:

"The Act covers personal information that:

• is held, or going to be held on computer;
  
• is in, or going to be in, a manual filing system that is highly structured so that information about you can be easily retrieved;
  
• is in most health, educational, social service or housing records; or
  
• is other information held by a public authority."
  

A sound recording would no doubt be held on computer - I doubt anyone still uses audio tapes. I can't see why this could not be provided easily and even sent by email as an attachment if necessary.

[buzby]

Having the goods, however you may believe you are justified to retain them, work against you, massively. What you are asking is that a company who you say you entered into no agreement, and to whom you paid no money, you are retaining their goods (under ransom, if you will) that they agree to some form of action before you will agree to release their property? Bad move.

 

To have any reasonable hope of walking away from this, the goods, which by your own admission are not your property, need to be returned by a means that confirms delivery at its destination. This way, any leverage on you is lost.

 

Secondly, afraid there is no point in quoting the DPA to ne, then suggest that it may 'be held on computer'. Certainly, nobody uses standard tapes any more, however 1" multitrack tape systems are still VERY common, and are exempt. Secondly, digital systenms, especially on top-end systems cannot rely on 'a computer'. Digital archival systems recordding CS operator positions are dedicated kit, capable of integrating timecode, TOD (time of day) flags, a low-burst data stream encoded within the audio recording (to ensure editing is not possible). Is this a 'computer'? Not under the Act it isn't, as it is a dedicated telecommunications infrastructure device. Where an enquiry requires disclosure, it is this device alone that permits the extract to be made as it is otherwise secure. To permit uiversal usability, a typed transcription of the transaction is provided as this requires only a pair of eyes to understand.

 

Whilst you have their property, you will continue to be disadvantaged, unless they agree a variance, and that would not appear likely.

[Johnnie]

I intend to continue to treat the goods as unsolicited. All I require is that my rights are upheld and I am protected from being bullied into a bogus contract (and suffering the charges thereof). That is not holding anyone or anything to ransom.

 

I honestly don't believe that a sound recording is inaccessible except solely by the system on which it is archived, without there being a means to access or reproduce, reformat or transport that recording.

 

While "...It could be any Tom, Dick or Harry on the recording..." A transcription holds no authenticity at all.

[Human Writes]

and btw:

 

"The Act covers personal information that:

• is held, or going to be held on computer;
  
• is in, or going to be in, a manual filing system that is highly structured so that information about you can be easily retrieved;
  
• is in most health, educational, social service or housing records; or
  
• is other information held by a public authority."
  

A sound recording would no doubt be held on computer - I doubt anyone still uses audio tapes. I can't see why this could not be provided easily and even sent by email as an attachment if necessary.

 

I agree, if Otelo hold the call recording your entitled to a copy of it electronically if they can provide it in that format without dispropotionate effort. Otelo are a data controller for this information if it is held anywhere within their organisation and as its your personal data and they need to supply it upon request and provided that you identify yourself and pay a £10.00 fee. Otelo cannot lawfully refer you back to Three, if they've got it they need to give it to you.

[buzby]

Your unsolicited argument would fail, on the basis that to have any certainty of success you would not have contacted this company, nor held on to their goods as you have done. The fact you don't accept this, or indeed OTELOs finding against you should at least be a warning that the argument is not as cut and dried as you might imagine.

 

As for not believing me regarding accessability of call recordings, is quite telling. You think that confidentail personal information and financial details don't need to be protected? Tell that to T-Mobile who were heavily fined when their own staff misused data on their intranet. THe only people who should be able to access this information are those explicity with the highest security clearance. The possibility for misuse of data on a phone recording is high, and several Ombudsmen (financial included) have established criteria how this data must be protected, it runs to a great many chapters on what can and cannot be done. Having unencrypted MP3s lying around on a server is one of the first taboos.

 

Finally, as to your belief that the data transcription can be manipulated, the data extracted (and appears on the typed transcript) included full TOD and called/calliung number. THe staff member undertaking the transcription gas to confirm it is true and accurate, and if you think a firm would lie about this simply because you want out of a phone contract and they reject this, would be a very poor misuse. Especially as if you had recorded the transaction yourself (they have no idea one way or another) if you could prove manipoulation, this would be fraud, and a far far greater offence committed.

 

But all this is by the by - whilst you have the goods, their property - you're going to continue to have problems.

[Johnnie]

"As for not believing me regarding accessability of call recordings, is quite telling."

 

Otelo clearly state in their report that Three supplied them with a RECORDING OF THE SALES CALL.

The report is quite specific.

[buzby]

As I said a 'recording of the call' ALSO means a typeed verbatim report. The term 'transcription' is seldom used, but even then, this can mean a typed (as opposed to an audio file). There can be many reasons why this is not the automatic delivery choice.

[Michael426]

My wife was awarded £75 compensation against '3'/Hutchinsons with the caveat that a disputed £46 be taken from the £75.

When I checked some time later, the disputed £46, the amount that Lowells, the debt collection agency employed by Hutchinson used in their letters, had increased to £121. Thus she still owed £46 and remained blacklisted. Otelo were not interested, even though I sent them the original amount we challenged which they had acknowledged. Suggestions?

[locutus]

Is this in relation to the original post?

 

If not, you're best way to get advice is to start a new thread. Click HERE and give as much info as you can reguarding your dispute.