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Home Rulings AXXESS ISP/ LTE ADVANCED / G MEREDITH / 2018-7197F

AXXESS ISP/ LTE ADVANCED / G MEREDITH / 2018-7197F

Mr Meredith lodged a consumer complaint against an Axxess ADSL Internet advertisement promoting its LTE-Advanced package. The advertisement was published at www.axxess.co.za/mobile/rain.

The advertisement contains, inter alia, the wording "LTE-Advanced. LTE-A is the future of fixed wireless connectivity! Aimed at providing affordable high-speed, reliable wireless Internet in areas that don’t have DSL or Fibre coverage”.

It further states, inter alia, "Super Fast Speeds. Enjoy speeds between the range of 10 – 50Mbps* that’s way faster than your average ADSL line. *Ideal network and coverage conditions”.

COMPLAINT

In essence, the complainant submitted that the advertisement states "Ideal network and coverage conditions”. Having checked the coverage in his area on the website, he was informed that coverage was available in his area but no warning was given as to whether this was "ideal” or not.
The Complainant submitted that he get speeds of no more than 3Mbps at best, but usually it is only 0.1Mbps. He believes that the advertising suggests the product is better than the service that is actually delivered.

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 that, with regards to any Mobile/ LTE services, speed cannot be guaranteed. As mentioned in advertising it can range up to 50Mbps, but this speed will be affected by a large number of factors. It states clearly in its terms and conditions for this service that speeds are not guaranteed in any way. It referred to the terms and conditions for this service.

The Respondent submitted that it is a reseller of this service and so do not have control over the network and or infrastructure it functions on. If the client queries speeds, they then forward that query onto an upstream provider to investigate and provide feedback. 

The Respondent submitted that it has run through its sign up process and has seen that it mentions "up to” speeds and not guaranteed speeds. When it comes to any wireless internet connection, speeds cannot be guaranteed due to the enormous amount of contributing factors that play a role in the speeds experienced. It does feel it makes it as clear as possible.

The Respondent pointed out that it has, however, noted the concern and will update any wording stating "between 10Mbps and 50Mbps” to "up to 50Mbps”. 

ASA DIRECTORATE RULING

The ASA Directorate considered all the relevant documentation as submitted by the respective parties.

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 allegation before the Directorate is effectively that there was no warning given as to whether the network was "ideal” and that the Complainant only achieved speeds of between 3Mbps at best, but usually it is only 0.1Mbps. The Complainant believes that the advertising suggests the product is better than the service that is actually delivered.
The Directorate understands the Complainant’s frustration. Indeed, disputes about internet connectivity speeds are not a novel occurrence, and the ASA has had to grapple with this issue for a number of years. Over time, it has come to accept that consumers should not expect to achieve full capacity speeds at all times, because it is effectively a shared resource, and there are a number of factors beyond the control of the Service Provider, which may impact on user-experience.

In Telkom Mobile ADSL Internet / J Jooste / 2016-3163F (18 April 2016) for example, the Directorate noted:
"… internet connectivity would ebb and flow to some extent, depending on certain variables that impact on the connection. In reality, this means that some subscribers would receive excellent connectivity the one day and poor connectivity the other, depending on what changes occur across the relevant variables. Having said this, the Directorate is mindful of the fact that paying customers have a right to expect to receive what they pay for. Naturally, in this particular industry, a small discrepancy would not necessarily raise eyebrows, given that minor fluctuations are to be expected”.

It is trite that in considering what the hypothetical reasonable person’s take out from an advertised claim will be, the context of the advertisement as a whole must be taken into account, and it must be considered objectively.

The advertisement states, inter alia, "Super Fast Speeds. Enjoy speeds between the range of 10 – 50Mbps* that’s way faster than your average ADSL line. *Ideal network and coverage conditions”.

There are two asterisks, one on the word 10-50Mbps and the other before the word "Ideal network and coverage conditions”. At the bottom of the page there is a link to "T’s and C’s”. When you click on the "T’s and C’s, it states, inter alia

"The LTE-Advanced service is provided on the RAIN Network and is a best effort service with no minimum service levels offered. Speeds within specified coverage areas displayed on the coverage map generally range between 10Mbps and 50Mbps. Many factors determine the speed and quality of service which will be achieved such as but not limited to, distance, weather, interference around and within the property.”

The Directorate was, on receipt of this complaint, concerned. While connectivity is a best effort service and this was made clear in the material, the material before us specifically referred to "10Mbps – 50Mbps” whereas the Complainant appears to enjoy 3Mbps at best. The Directorate was concerned that the speed the Complainant experienced was not within the advertised range.

However, the Respondent has undertaken to change this aspect of the advertisement, changing the wording to "up to 50Mbps”. 

In light of the above, the Directorate is of the opinion that the undertaking addresses that part of the advertisement that rendered it misleading. The undertaking is accepted on condition that the claim in question is not used again in its previous format.

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