ASA Adjudication on Vodafone Ltd
2-4 London Road
23 December 2009
Computers and telecommunications
Number of complaints:
A press ad, for Microsoft Windows powered mobile devices, stated "… Unlimited* texts, internet and email + 600 minutes All for £35 a month". Small print at the bottom of the ad included text that stated "Unlimited offers: Unlimited texts are standard texts within the UK only. Unlimited email and internet is with web browsing pack which is included for the duration of your price plan. Monthly data allowance is 500MB (UK only) … Fair use policy and terms apply to all offers. Mobile email and internet: Add unlimited mobile internet and email for the duration of your price plan for £5 per month."
The complainant objected that the ad was misleading because:
1. the "unlimited" data offer was limited to 500 MB; and
2. the "unlimited" texts were limited to 3000 texts per month.
CAP Code (Edition 11)
Vodafone Ltd said they actively reviewed their fair usage policies, in relation to the use of the term unlimited in their advertising, to ensure that the limits were sufficiently high enough to avoid affecting the typical user. They said the term unlimited was accompanied by an asterisk that immediately directed readers to the small print of the ad for qualification of the claim. They pointed out that, in their current ad, the footnote made clear that a fair usage policy applied to both the unlimited texts and the mobile data offers and that, specifically, it stated the monthly data allowance for the latter offer.
Vodafone believed that their approach was consistent with the ASAs position on unlimited claims. They maintained that their fair usage policies were intended to ensure that a small minority of excessive users did not adversely affect the quality and availability of their services for others. For instance, they were concerned that some atypical users might be using their services for purposes that were not permitted, principally for commercial purposes. Consequently, Vodafone believed that their approach was fair and reasonable and that the use of the unlimited claim was not misleading.
1. Vodafone said their fair usage policy for internet and e-mail data made clear that the 500 MB per month allowance was a point at which they reserved the right to ask consumers to moderate their usage, charge them for usage in excess of the 500 MB or move the customer onto a more suitable price plan. They provided data that demonstrated that only a small proportion of customers were affected by the policy.
2. Vodafone said their fair usage policy for text messaging made clear that usage above 3,000 text messages per month would be charged at a rate according to the customers price plan. However, they sent data demonstrating that only a very small minority of users on the service were affected by the policy.
1. & 2. Not upheld
The ASA noted the claim "Unlimited*", as it related to both the data and text offers, was linked to a footnote that stated the existence of the fair usage policy for both services and, specifically, stated that a monthly allowance of 500 MB applied to the unlimited data offer. We noted previous ASA adjudications on the use of unlimited claims when a fair usage policy applied established that the use of the claim was acceptable provided that the existence of the policy was stated clearly in the ad and the the policy could be considered reasonable in that it could be shown to affect only atypical users.
We noted Vodafone said they applied fair usage policies to ensure that a small minority of users did not adversely affect their services and, in particular, that their data service had sufficient bandwidth available for all users. We noted Vodafones user data showed only a very small minority of users on the unlimited data and text services were affected by the respective fair usage policies. We understood that the available bandwidth for mobile services was less abundant than that available for fixed line telephony, which resulted in a greater need for service providers to safeguard their networks from excessive use.
We noted Vodafones terms and conditions for the unlimited data service reserved the right to charge users who breached the fair usage policy and the terms and conditions for the unlimited text service made clear that those users exceeding the specified 3,000 texts a month would be automatically charged at their network rates. We noted previous ASA adjudications did not specifically comment on the type of measures that were utilised by providers to regulate the usage of atypical users but understood that they did note providers used policies, such as monitoring of the accounts of users who breached the fair usage policy, to ascertain whether the account was being used excessively.
Although we noted the difference between the sanctions observed in previous adjudications and Vodafones policy of reserving the right to charge and, in the case of the unlimited text service charging automatically, we considered that Vodafone had demonstrated through the usage data that it affected only atypical users. Because Vodafone had stated the existence of their fair usage policies in the ad and had shown that they could be considered to be reasonable, we therefore concluded that the ad was unlikely to mislead.
We investigated the ad under CAP Code clauses 3.1 (Substantiation) and 7.1 (Truthfulness) but did not find it in breach.
No further action necessary.
Adjudication of the ASA Council (Non-broadcast)