Ad description
A leaflet and website advertised a call and internet plan.
a. A leaflet stated, on one page, "JT's NEW improved MyMobile plans … But if you love to tweet, text, upload and download then the new Unlimited plan is ideal for you. With unlimited texts & data and as many minutes as you need, it's got everything you want to stay in touch on the move …". Small text on that page stated "*Unlimited plans are subject to a fair usage policy of 2,000 texts per month and a 500MB per day. All prices exclude GST which will be added at the time of billing". Text on a separate page stated "Smartphones available on Green 24 month plan … From only £39.99 a month. Choose one of our festival favourites + Get a FREE weekend ticket PLUS unlimited texts & data". The "Blue 24 month plan" also offered "Get a FREE weekend ticket PLUS unlimited texts & data".
b. Claims on www.jtglobal.com/Jersey/Personal/Mobile/Handsets-and-plans/Pay-monthly/MyMobile stated "However, if you can't get enough of your smartphone and love to tweet, text, upload and download, then the new Unlimited plan is probably ideal for you. With Unlimited texts & data* and as many minutes as you need, it's got everything you want to stay in touch on the move … *Unlimited plans are subject to a fair usage policy of 2,000 texts per month and 500MB of data per day". Text on a web page entitled "Sim only" stated "Happy with your handset? Then keep it and get JT's SIM only plan". It listed plan prices and under the heading "Minutes" stated "Unlimited". The terms stated "4. Text messages are to any destination worldwide subject to fair usage policy. 5. Data usage is for use in the Channel Islands and whilst on Manx Telecom only, subject to fair usage policy. 6. Unlimited elements of all plans are subject to a fair usage policy of 2000 mins and 2000 texts per month".
Issue
The complainant challenged whether the "unlimited" claims were misleading and could be substantiated, because consumers were subject to a Fair Usage Policy (FUP) and were charged for exceeding that FUP.
Response
JT (Jersey) Ltd t/a Jersey Telecom (JT) said their plans clearly stipulated a FUP of 2000 texts per month and 500 Mb of data per day. They said the average user of a JT mobile plan used 246 texts per month and 17 Mb of data per day and provided supporting documentation. They said they did not charge customers who went over the 500 Mb daily data limit and instead set a monthly limit of 15 Gb per month, to smooth the usage over a monthly period. They stated that their records showed that they had not charged any customer for going over that monthly limit and were confident that users of the 'unlimited' plan would not be charged additional data usage and would experience an unlimited service.
They said the JT mobile network data was a shared service and the activities of some users could impact on the services available to other users, as some users took a disproportionately greater share of the available bandwidth, which led to other users suffering a diminished experience. Therefore, in order to preserve the quality of the mobile data network, they required that customers complied with a FUP.
They said another local operator offered a similar FUP and it was important to consider the other products available in the market and the expectations that consumers had of those products.
Assessment
Upheld
The ASA noted the advertisers' assertion that most consumers would be unlikely to exceed the FUP and would not experience any charges or suspension of service. However, we noted that the complainant, who said she had decided to purchase the advertisers' “Unlimited” Text and Data contract, on the understanding that an "Unlimited" plan would not be subject to any usage limitations, had provided documentation showing she had been charged for exceeding the data threshold of FUP.
We considered that "unlimited" claims were likely to be acceptable for telecommunications services that were subject to provider-imposed limitations if they did not restrict or limit a service in a manner contrary to the average consumer's expectations of an "unlimited" service. We considered that the average consumer taking up the advertisers' unlimited text and data contract was likely to understand that they would incur no additional charge or suspension of service as a consequence of exceeding any usage threshold associated with a FUP. However, we noted that the complainant had been charged as a consequence of exceeding a usage threshold associated with the FUP in this case and considered that this demonstrated that users could suffer restrictions likely to be contrary to the average consumer's expectations of the service.
Furthermore, although we noted that text stated "Unlimited plans are subject to a fair usage policy of 2,000 texts per month and a 500MB per day", we considered that the qualification contradicted the main claim that the service was an "Unlimited plan". We considered that the qualification was contrary to consumers' likely expectations and, at the same time, was ambiguous. We therefore concluded that the ad was misleading.
The claims breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation) and
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration).
Action
The ads must not appear again in their current form.
