Quebec's appeal court has authorized a class-action against Telus Corp. for allegedly illegally collecting roaming fees from customers whose handset signals apparently strayed across the U.S. border.
The decision of the three appeal court judges, who overturned a lower court ruling tossing out the action, was unanimous.
In a 14 page judgement issued this week, the appeal court sided with Karine Comtois, a Telus Mobility customer and resident of Venise-en-Quebec, a town very close to the border, who demanded a full refund of the roaming charges.
Telus will also have to send out notices to its members within 45 days to inform them of the judgement’s existence. The company will have to publish a notice in the Journal de Montréal and the Journal de Québec and create a Website on which the same notice is posted for as long as the legal proceedings last.
Vancouver-based Telus will also be required to add a note to its monthly invoices informing subscribers of the class action lawsuit, including a hyperlink to the Website on which the notice is posted. This measure applies only to the billing period of the second month following the pronouncement of the judgement.
Court document allege Comtois paid a total of $108 in roaming fees for calls made in the 514 and 450 area codes in July 2006 and January and February 2007.
Wireless subscribers are charged roaming fees for calls made or received outside the area served by the wireless operator. In Comtois’s case, some calls made in Quebec were allegedly picked up by an antenna of the American operator Verizon Wireless not far from her home.
Verizon subsequently billed Telus, which in turn billed its customers, including Comtois.
Comtois' lawyer, Benoît Gamache, explained in an interview that the purpose of some of calls made by his client was simply to pick up voice-mail messages, “She was billed roaming fees for calls made from her home to her own voice-mail box,” he said.
According to the appeal court judgement, Telus acknowledges that the situation is likely to occur “for calls made in border regions between Quebec and the United States, depending on topography, building structure and meteorological and atmospheric factors.”
Telus claims to have no control over the situation because it involves a “limit inherent to cellular telephony.” Telus feels that it is fully justified in billing its customers for the services provided.
However, in their decision, the appeal court judges are of the opinion that Telus is not entitled to require that Ms. Comtois pay the roaming fees because the calls at the centre of the lawsuit were made in the territory served by the company’s network
Gamache said that all persons who since April 24, 2004 have been billed roaming fees for using their Telus cellphone in Quebec are eligible to take part in this lawsuit. According to him, thousands if not tens of thousands of Telus subscribers could join in the class action. He estimates that the total amount claimed from Telus could reach more than $1 million.
Telus has not stated whether it intends to appeal the decision to the Supreme Court of Canada. It issued the following statement: "Telus has just learned of the Court of Appeal judgement regarding roaming fees charged along the Quebec–United States border and authorizing a class action lawsuit. This does not mean that the customers have won their case but simply that they now have the option of arguing the case in court. Telus is currently studying the decision and will defend its position in the appropriate court."
The company confirms that its cellular telephony division has 6.5 million subscribers Canada-wide but does not reveal its provincial breakdown for competitive reasons.
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Denis Lalonde is editor of Direction Informatique. The original French language version of this article is here).