06 December 2010

Unlimited means Unlimited

In October 2010 I wrote about some comments made by Perram J in the Federal Court of Australia regarding the use of “unlimited” with reference to internet bandwidth.

His Honour has now given judgement in Australian Competition and Consumer Commission v Singtel Optus Pty Ltd [2010] FCA 1177 (29 October 2010).

The case centres around advertisements for broadband, and in particular the 150 GB plan, which is really 75 GB + 75 GB (the plan I use, actually). His Honour said:

Viewed in isolation at the moment of its delivery this advertisement plainly misleads consumers into thinking that they will receive 150GB of broadband when they are getting no such thing unless they assiduously ensure that they exhaust all of their off-peak usage allowance before exhausting their peak usage allowance.

I understood this before signing up, and I’m pretty happy with the plan, but it is true – you do have to use your morning allowance completely before using up all your afternoon/evening allowance.

The Court eventually held that Optus should adequately disclose that speed limiting will be applied once peak usage is reached. In other words – speed limited unlimited data is not “unlimited”!

So, in Australian Competition and Consumer Commission v Singtel Optus Pty Ltd (No 2) [2010] FCA 1200 (2 November 2010) the Court ordered that:

1. The respondent [Optus], for a period of three years from the date of these orders, whether by itself, its servants or agents or otherwise howsoever, be restrained from advertising broadband internet plans under which:

1.1 for a specified monthly sum, the customer is supplied with a monthly data allowance which is divided between peak and off-peak periods; and

1.2 if the customer exceeds the monthly data allowance for the peak period the speed of the internet service will be limited for both the peak and off-peak periods for the remainder of that month without clearly and prominently disclosing in the advertisements for those plans the facts set out in paragraph 1.2 above.

2. The respondent pay the applicant’s costs to date.

The Court also later ordered corrective mailouts and advertisements.

And it’s not finished yet – the matter was listed for directions on 23 November 2010 in relation to the orders, costs and preparation for the penalty hearing. I’ll keep an eye on it.