Necuno
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AFRIHOST ADSL UNCAPPED/S CROOKSON & OTHERS/15446
...now you see as i've mention this numerous times according to ASASA and ISPA it is uncapped when they don't cut you off, but another limitation applies like throttling.
20 Jul 2010
Consumer complaints were lodged against Afrihost’s website advertising promoting its ADSL packages. The advertisement was published at www.afrihost.co.za.
It offers, inter alia, “ADSL Uncapped” and states, inter alia, “Pay a flat monthly rate and use the internet as much as you want – Pure Internet Joy!”. It also contains detailed menus and information about the different packages.
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. Once these thresholds are reached, connection speed is throttled severely.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaints the following clauses of the Code were taken into account:
* ClauseII 4.1 - Substantiation
# Section II, Clause 4.2.1 - Misleading claims
RESPONSE
The respondent submitted, inter alia, that the offering does meet the definition of “uncapped” service as the user’s connection is never terminated, regardless of usage. The service will however be subjected to throttling and possibly shaping where certain usage limits are reached by the user. The details of such limitations are available on its website, and are reasonable to ensure best service to its entire customer base.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
At the outset, it must be noted that the Directorate does not have jurisdiction over how the respondent communicates to existing clients. Some of the complainants raised concerns over the fact that the respondent’s “Fair Use Policy” is constantly changed without notice to its customers. This is not an issue that the ASA can investigate.
Clause 4.1 of Section II deals with substantiation of advertising claims and requires advertisers to hold independent verification for all direct or implied claims.
This clause was cited due to the fact that the ninth complainant submitted that “Although the advert and website indicate that the service which is being provided is an Uncapped or Unlimited 4Mbps ADSL connection, this is not true”. It therefore appeared that he did not believe that the 4Mbps speed is available.
However, on closer reading of his complaint, his objection appears to be that once he reached certain thresholds, his speed is reduced to 1Mbps. It appears that he is of opinion that the 4Mbps speed should be available throughout, irrespective of usage. The eleventh complainant raised essentially the same concern in relation to the connection speed. This issue is central to the discussion below on the acceptability (or lack thereof) of the term “Uncapped”.
As such, the requirements of Clause 4.1 of Section II do not apply in this instance, and the Directorate will not consider this clause at this time.
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.
It pointed out that the website clarifies this by stating “UNLIMITED DATA: you can use your connection to download information all month. Our uncapped service is designed for someone sitting in front of their computer using the internet as much as they want. It is not designed for computer programs that are setup to continuously download 24/7, 30 days a month. If it is your intention to setup programs to download every hour of the day, every day of the month then these uncapped packages are not for you…” In addition, it noted that its FAQ section on the website clarifies when throttling will commence.
Over time the ASA has dealt with the issue of internet connectivity on repeated occasions.
In one such matter, Open Web Uncapped ADSL/ M B Deas and Another / 9690 (16 October 2007), where an issue similar to the one at hand was considered, the Directorate, inter alia, obtained an opinion from the Internet Service Providers Association (ISPA). The ruling recorded that “…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”.
It is worth noting that the claim “Uncapped” was not ruled against because the advertiser never terminated connection entirely.
In another matter under the reference SolMatrix / D I Wise & Another / 9956 (22 November 2007), the Directorate ruled that “… a hypothetical reasonable person confronted with a claim such as ‘uncapped’, would expect never to have his connection terminated. Practices such as reducing (throttling) connection speed are often used as an alternative to capping”.
The same approach followed in these matters can easily be applied to the advertisement in question. 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.
While the respondent’s website does make reference to “unlimited” data, the context in which the claim appears is material. It is always used with reference to data, and not to speed. In addition, the webpage involved carries at least five links directly to the FAQ section detailing the practice of throttling. Furthermore, when one hovers the mouse over terms like “Unlimited Data*” or the ticks indicating that unlimited data is available on certain contracts, the relevant explanation appears on-screen. It is hardly likely that an interested customer would not notice this.
Given this, and given that the respondent does not appear to “cap” or disconnect users, but rather throttles them, the Directorate is satisfied that the term “Uncapped” is not misleading.
Based on the above the advertisement is not in contravention of Clause 4.2.1 of Section II.
The complaints are dismissed.
...now you see as i've mention this numerous times according to ASASA and ISPA it is uncapped when they don't cut you off, but another limitation applies like throttling.
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