Industry watchdog the Wireless Application Service Providers' Association (Waspa) seems to be of little help to mobile subscribers, who are repeatedly being targeted by unscrupulous service providers.
Consumers who have been signed up for subscription services by wireless application service providers (Wasps) have very little recourse against rogue behaviour, as proving their cases is technically impossible.
In addition, even when companies are punished for breaching a code of conduct by Waspa, these can be appealed, with some dragging on for years. One Wasp currently has 31 adjudications - some dating back four years - on appeal, amounting to R3.3 million in fines.
Waspa was asked to explain why these appeals are taking so long, and why it has not enforced the fine, but failed to answer. It was also asked whether it is capable of enforcing its consumer protection code, or whether it had been threatened with legal action by the Wasp, but again did not respond.
Recently, it has come to light that certain Wasps allegedly faked opt-in logs - the proof that a subscriber did click on a link and agree to be billed as much as R5 a day for subscription services. However, consumers arguing that they never signed up face an uphill battle, due to the technicalities of the opt-in process.
In addition, only Vodacom - which has about half of SA's market share - has implemented a double opt-in system, which eliminates the possibility of users being signed up for cellphone services without their knowledge, or by accidentally clicking on a link. It also prevents consumers from being fraudulently signed up for subscription services.
Illegal behaviour
ITWeb is aware of an incident, which is currently under investigation by Waspa, in which an error was picked up in the logs provided by a service provider to Waspa. The Wasp, which cannot be named as the matter is under investigation, has asserted that the complainant, or someone with the complainant's permission, was surfing the Web via a mobile phone and registered for a subscription service.
However, the complainant has pointed out a flaw in the Wasp's response, arguing that the IP address it provided in the log - which it used as proof of subscription - belongs to a BlackBerry, when the complainant has never owned this make of handset.
In addition, the complainant argues that the Wasp claims the IP address is South African, when it is actually registered to BlackBerry in the UK. However, based on previous rulings, there is great difficulty in determining conclusively if logs provided by a Wasp or information provider have been fabricated.
Tricky to prove
A 2012 Waspa adjudication report, dealing with a complaint lodged against information provider (IP) Spring Media and Opera Interactive as the service provider, found that logs had been falsified. The adjudicator called for Swift's suspension from Waspa for six months, meaning it would not have been able to operate for this period.
"The IP has stated a version of events which is incompatible with the complainant's version. As the IP supported its position with logs that are themselves incompatible with the complainant's version, the inescapable conclusion is that the IP falsified those logs."
In that instance, the complainant was a software developer employed by Waspa.
In another similar case, Waspa said adjudicators often face the scenario of consumers being adamant that they did not subscribe to a particular service, while the member (Wasp) provides logs to support its version that the complainant did indeed subscribe.
"While logs can certainly be fabricated, the adjudicator is forced to take the logs at face value, unless he or she has good reason to believe that the member has indeed fabricated them. As the evidence of logs usually trumps the complainant's version of events, a complaint against a member that can support its version with believable logs usually does not succeed."
However, in the appeal - dealing with both the above matters - the adjudicator overturned the decision that the logs were falsified, because of a lack of evidence. "The finding that Sprint Media falsified its logs in the absence of clear evidence is alarming."
Not acceptable
Pieter Streicher, MD of BulkSMS.com, says it is very difficult to prove that logs were fabricated. Faked logs amount to fraud and there are massive consequences, as people do not check their cellphone bills and do not discover amounts of around R5 a day being charged.
Streicher says while the bulk of the complaints are instances in which people inadvertently signed up without realising they had clicked on a link, fabricated logs do happen.
There is a perception among consumers that there are insufficient controls to protect them against fraud, which leaves them vulnerable and tarnishes the image of the industry, says Streicher.
He says the problem is that most people will not pick up if fraud happens on their accounts and will not be able to dispute the Wasp's word. He notes the size of the subscription industry is about R20 million a month at its peak.
In addition, there have been instances in which SIMs in machines have been billed, says Streicher. While companies can get these numbers listed so that they are not billed, there is no such recourse for customers. "That modem didn't go onto some Web site."
Streicher says relying on Wasps' logs is not acceptable, as this amounts to the word of the complainant against that of the Wasp, and Waspa almost always has to accept the logs. He says a third-party opt-in like Vodacom's is the only way to cut out fraudulent behaviour.
Eliminating the problem
Vodacom has seen a 90% reduction in Wasp billing queries since the launch of double opt-in in December 2011. Nomsa Thusi, executive head for media on its products and services, says the service allows it to verify, without relying on logs, whether someone has subscribed to a service.
Thusi adds that Vodacom has known falsified logs to be a possibility, although this has been eliminated on its network. She says faking of opt-ins is tantamount to fraud and consumers should be reimbursed and the offending Wasp terminated, and a case reported to the police.
"If a company is falsifying logs, it is engaging in fraudulent activity and legal action should be taken against the company."
Kevin Jacobson, GM for business indirect sales at MTN SA, says MTN is currently implementing technology to facilitate a more secure way for Wasps to provide content services, in an endeavour to further protect its customers.
Cell C did not respond to a request for comment, but has previously said it was evaluating a double opt-in solution.
Waspa says falsified logs are not widespread, and it has a zero tolerance policy towards this type of behaviour and will act if there is proof that data has been manipulated. It is working with other operators to implement a double opt-in.
"We believe our current practices successfully protect the consumer and that our processes and procedures allow for the reporting of abuse/offences. They are dealt with in a very structured manner."
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