If the consumer exceeds the quota, the GSM operator is obligated to inform the consumer. Failure to fulfill this obligation will result in liability for the operator.
Law Office
File Number: 2014/20558
Decision Number: 2015/16478 K.
“Text of Justice”
COURT: ADANA 1ST CONSUMER COURT
DATE: 06/19/2014
NUMBER: 2013/40-2014/1531
As a result of the court’s decision on the case arising from the Consumer Protection Law between the parties, the plaintiff’s representative appealed the decision to dismiss the case within the specified time limit; upon acceptance of the appeal petition, the documents in the file were reviewed and the necessary evaluation was made:
CASE SUMMARY
The plaintiff’s attorney stated in the petition that the plaintiff joined the connection card campaign offered by the defendant telecommunications company to its corporate subscribers in order to benefit from the campaign and that the subscription agreement between them ended on 14.08.2008 with the campaign named “………..” According to the content of this “………..” campaign, which ends with the name of the tariff model, the defendant company provided the subscriber with a number and a device directed to that number, specified that the subscriber’s usage right was 1 GB and that a fixed monthly fee would be paid for this usage.
Upon notification that no payment was made to the defendant in January 2009, when the bank accounts were checked, the defendant informed the defendant that the invoice amount of 4,189.30 TL sent as the December 2008 invoice for the telephone number 0530 338 27 67 taken by the company had been paid on 08.01.2009; The defendant stated that the invoice was incorrect and that the amount in question would be paid to them, but that after receiving this information, they had repeatedly contacted the defendant company and each time requested a refund, but the payment could not be refunded and enforcement proceedings had been initiated.
He requested and sued for the maximum amount of compensation for bad faith, which should not be less than 40%.
The defendant requested that the case be dismissed.
As a result of the judgment given by the local court, the case was partially accepted; The decision was appealed by the parties’ attorneys.Based on the items in the file, the evidence on which the decision is based, and the legally required reasons, and especially if there is no inaccuracy in the evaluation of the evidence, all other appeals of the defendant’s representative outside the scope of the following paragraph must be rejected.
In the expert report on which the ruling is based, the plaintiff was allowed to use fixed-fee internet with a monthly quota of 1GB. However, in December 2008, a bill of TL 4,189.30 was issued for 1324 MB – 1.29 GB of mobile internet usage, and Turkcell stated that it charged TL 2.56 for every 1 MB exceeding the limit. Turkcell’s billing details show that it only charged 2,893.56 TL for mobile usage exceeding the quota, meaning there is a difference of 2,064.12 TL. 18% VAT and 25% communication tax are added to this amount on the bill. When these amounts are added to the difference (2,064.12 TL), it was determined that Turkcell charged an overage fee of 371.54 TL for 18% VAT and 516.03 TL for 25% communication tax, for a total of 2,951.69 TL.
The defendant has a 1 GB fixed-fee internet usage package; it is established that after the defendant exceeded their 1 GB usage allowance, the defendant company was charged the overage penalty rate without any warning regarding the overage, and the invoice dated December 2008 was sent.
The dispute concerns whether the defendant company has an obligation to inform the customer in the event of an overage and the determination of the amount for which the consumer will be held liable if this obligation is not fulfilled.
Prepared by the Information and Communication Technologies Authority;
Regulation on Consumer Rights in the Electronic Communications Sector Article 6 “(1) Operators are obligated to provide all consumers, without request, with at least the following information regarding access to and use of the electronic communications services they offer, and to ensure that this information is easily accessible.
a) The name, title, and address of the operator,
b) Regarding the service to be provided: the description and scope of the service, general conditions for accessing and using the service, tariffs applicable to the service and subscription packages, if any, types of taxes included in the tariffs, and the rate at which these taxes are reflected in the tariffs, the value of the tariffs including all taxes only, for the purpose of creating a correct consumer perception, the conditions for compensation and refunds to subscribers by operators, if any, the types of maintenance/repair services offered, standard contract terms, including the minimum contract period,
c) Consumer complaints resolution mechanisms”.
Article 12/3 of the same regulation states:
“…(3) For the purpose of protecting consumer interests;
a) If it is determined that the service is being used above the normal level,
b) If there is reasonable suspicion of illegal or fraudulent activity, the service may be restricted or suspended after informing the subscriber.
has introduced the legal regulation.In this context, pursuant to Articles 6/1-b and 12/3 of the Consumer Rights Regulation in the Electronic Communications Sector, the defendant Turkcell İletişim Hizmetleri A.Ş. has an obligation to inform the consumer in the event that the quota is exceeded. However, the consumer did not comply with this obligation.
In this regard;
by resubmitting the file to the expert for the preparation of an additional report; considering that the plaintiff paid 39 TL + VAT per month for 1 GB of usage; by calculating each MB exceeding the quota within this ratio; The amount within this rate should be calculated based on the quota overage and included in the invoice; however, according to the expert report, each MB overage was calculated at 2.56 TL without any rate adjustment within the package used by the consumer. Therefore, the decision was found to be erroneous and should be overturned.
CONCLUSION:
Taking into account the above-mentioned principles, it was unanimously decided on October 22, 2015, that the written judgment was erroneous, that the appeals were valid for these reasons, that the judgment should be punished with an EXCESSIVE FINE in accordance with Article 428 of the Code of Civil Procedure, and that the advance appeal fee should be refunded to the plaintiff upon request.