16 Oct 2007
Consumer complaints were lodged against an OpenWeb Internet advertisement promoting its ADSL packages. The advertisement was published at
www.openweb.co.za.
It offers and describes the respondent’s “OpenWeb Uncapped ADSL” and states, inter alia, “Spoil Yourself! Uncapped ADSL 384k for R999!”
COMPLAINTS
In essence, the complainants submitted that the advertisement is misleading as the word “uncapped” implies limitless access, but the service being offered is limited to specific threshold data usage.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 4.2.1 of Section II (Misleading claims) was taken into account.
RESPONSE
The respondent, submitted, inter alia, that:
* Channel capacity is a finite resource. Using huge amounts of it can be deemed an abuse and Internet Service Providers (ISP’S) often publish policies that clarify the difference between "uncapped" and "unlimited". An analogy to water supplied to an apartment makes the distinction clear: Water comes with the apartment, and is uncapped, but not unlimited. If one uses water in a way that a typical apartment user would, one will have no problems. If however, one leaves all of the faucets running day and night, one can expect the water connection to be turned off or the water pressure to be greatly reduced.
* In order to protect a network, ISPs may introduce fair usage policies in order to provide a positive network experience for the majority, and prevent a small minority from abusing the service.
* Selling an Uncapped ADSL package means that you are selling a package that does not introduce a hardcap once a user reaches a certain bandwidth usage limit. The user must be able to continue using the Internet at all times during the course of a month. Because the user will always have an Internet connection, irrelevant of bandwidth usage, the package remains uncapped.
* No user, irrelevant of usage, will be disconnected from the network and left with no Internet connection. The uncapped package advertised has no ultimate bandwidth cap, thus users will always have an Internet connection, irrelevant of usage.
OPINION
The Directorate requested an opinion from the Internet Service Provider’s Association (ISPA) on the use of the term “Uncapped”. ISPA submitted, inter alia, the following.
* The service offered by Open Web does not, in fact, have a “cap” on the volume of traffic a customer may transmit or receive, but there is a limitation imposed on the speed of the users connection once a certain traffic threshold is reached.
* Given the general understanding in the market of the terms “capped” and “uncapped”, it is reasonable for Open Web to market this service as “uncapped”.
* Perhaps including the rate at which speed is throttled in the advertising would offer even more clarity on this issue for potential customers.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation as submitted by the respective parties.
In the interest of equity the respondent was afforded an opportunity to comment on ISPA’s opinion. However, as it did not wish to submit additional comments, the Directorate was able to proceed to rule.
Clause 4.2.1 of Section II states that advertisements should not contain any statement or visual presentation, which directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.
The complainants are of the opinion that the advertisement is misleading as the word “uncapped” implies limitless Internet access. The service, however, is limited to specific amounts of data. Once the stipulated limit is reached, the connection speed is significantly reduced.
The respondent submitted that it is not selling “unlimited” ADSL accounts, but “uncapped” ADSL accounts. Because the user will always have an Internet connection, irrelevant of bandwidth usage, the package remains uncapped. Users who download more than their allocated amount of data are restricted in terms of access speed, but will still have Internet access.
While ISPA accepted that some consumers might attach an incorrect interpretation to the term “uncapped”, it appears of the opinion that the respondent’s practice is common in the industry. It also commended the respondent for the clear explanations it has on its website in this regard.
The Directorate acknowledges that there is some scope for a potential customer to confuse the “threshold” levels as “caps”, but the meaning of the limitations must be assessed in the context they appear. The claim therefore needs to be measured in the context of the respondent’s website.
As mentioned by ISPA, the Directorate notes that positioning the mouse pointer over the “10-day limit threshold”, for example, pops up the following text: “If more than this amount is used within a 10-day rolling period, the connection speed will be limited to half the account speed”. A similar message appears when hovering over the “Monthly Threshold” item.
The word “threshold” also appears with sufficient prominence in the advertising material. A hypothetical reasonable person would associate this word with at least some sort of boundary, or at the very least, the beginning of new conditions. If nothing else, it alerts the consumer to the fact that there is a threshold that could potentially be crossed. The relevant thresholds are also clearly disclosed, along with the message that a breach thereof will result in limited access speeds.
This is distinctly different from models where a user is blocked entirely from accessing Internet content once a specific amount of traffic has been transmitted. According to ISPA, this sort of service is usually referred as a “capped” service. The model used by Open Web does not seem to match the generally understood meaning of a "capped" service, as the flow of information is never stopped. At worst, it is hampered when thresholds are reached, a fact that is clearly communicated to the consumer.
Based on the above the Directorate is of the opinion that the advertisement is not misleading, as it appears ex facie that the services offered by the respondent are “uncapped”. It is therefore not in contravention of Clause 4.2.1 of Section II.
The complaints are dismissed.
, i guess ubuntu got a real big update since i last tried it. mweb clearly stated as any other isp that you have to adhere to their rules to use their service. as easy as that. if you don't like the cookie casing go look on another shelve.