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ASAI Code 7th Edition: 2.4c, 4.1, 4.4
The advertisement which was aimed at business customers offered “Unlimited calls, texts and data in ROI”. A footnote included the text “Fair usage terms and conditions apply. Out of bundle rates are charged when the minutes/texts/data allowance in your plan is exceeded.”
The complainant considered the brochure was misleading as having signed up for the product he discovered on his first bill that the data was limited to 15GB.
The advertisers said the unlimited mobile plan for business included unlimited calls and texts (which were subject to a fair usage policy) and 15Gb data. They said that they referred to 15Gb of data as unlimited because it was a generous data allowance and it was only in unusual circumstances this data allowance was exceeded. Nonetheless, they said that in the majority of cases where the Unlimited Mobile Plan was promoted they stated in the terms and conditions that the data allowance was 15Gb. In the advertisement in question, it appeared that there was an oversight and the terms and conditions had not included the correct reference.
They said that the brochure in question had recently been redesigned and reprinted and the terms and conditions had been corrected in that version and stated in the footnote “Inclusive date covers 15GB in ROI and 1GB data when roaming in UK, EU and USA”.
On the eir Business website (www.eir.ie/business), their online shop featured the unlimited plan and clearly stated the 15Gb data allowance. See https://business.eir.ie/shop/shop-bundles/sim-mobile/
The advertisers also provided information on the number of customers who had exceeded the threshold which was in excess of 1%. They also explained that the plan was a new plan and it was not possible in advance to know how many customers would exceed the threshold.
The Complaints Committee considered the detail of the complaint and the advertisers’ response.
The Committee reminded eir of previous adjudications in which they had ruled that when there was a fair usage policy in place, customers should be informed of its existence and be able to access it easily. A link should exist between the headline ‘unlimited’ claim and the reference to the Fair Usage Policy (FUP). In this case, the Committee noted that there was no link between the reference to ‘unlimited’ and the relevant section in the footnote.
The Committee also referred to their previous rulings in regards to the use of ‘unlimited’ and how they understood that operators needed to ensure that their service was available to all their customers and that availability of the service should not be affected by some who, through excessive use, might abuse a particular offer. It was in this context that the Complaints Committee had previously adjudicated that the term ‘unlimited’ could be used where a Fair Use Policy (FUP) was in place, provided that at least 99% of customers on the plan in question must not be affected by the FUP and that customers must be warned and given an opportunity to modify their usage before being charged.
The Committee accepted that when a plan was first introduced operators would not at that stage be aware of the usage on the plan but expected that they would make a reasonable estimate based on knowledge of existing customers’ usage. The Committee considered, however, where a plan was described as ‘unlimited’ that such usage should be monitored and where necessary the threshold should be increased so that no more than 1% of consumers on the plan were affected by the FUP.
The Committee considered that in this case, the use of ‘unlimited’ was not in accordance with their previous decisions, was likely to mislead and in breach of Sections 4.1 and 4.4 of the Code.
The advertising should be amended so that there is a link between any reference to ‘unlimited’ and the existence of the FUP. Where the description ‘unlimited’ is used, the FUP threshold should be monitored to ensure that no more than 1% of the consumers on the plan are affected by the FUP.