news The full Federal Court has largely reversed an earlier decision by a single judge which had found that TPG’s advertisements of its $29.99 ‘unlimited’ ADSL and telephone bundles had been misleading, forcing the Australian Competition and Consumer Commission onto the back foot in the case.
The long-running case was first filed by the Australian Competition and Consumer Commission (ACCC) in December 2010, with the regulator claiming TPG’s $29.95 ‘Unlimited’ ADSL2+ plan actually cost a great deal more. TPG subsequently dumped the plan, replacing it with a $69.99 offering. In November 2011, Justice Bernard Murphy found advertisements for the plan misleading and eventually settled on a $2 million fine allocated to TPG in the case.
When the case was kicked off, TPG made the following statement: “TPG is disappointed with the ACCC’s decision to bring proceedings against it in relation to our award winning $29.99 Unlimited broadband plan which is available when bundled with line rental at $30 per month. This plan continues TPG’s value leading services and has been very well supported by customers across the country. TPG believes that our advertising clearly and properly represents the costs involved and we will be defending the proceedings.”
However, late last year, the full Federal Court allowed TPG’s appeal in the case, ruling that Justice Murphy erred in applying the legal test of whether the advertisements misrepresented the offer and also erred by not giving appropriate consideration of consumers’ knowledge relating to bundling practices and set up charges.
The court did uphold Murphy’s decision relating to TPG’s first initial TV advertisments of the plan, and did uphold some findings regarding website and newspaper advertisements. That section of the Trade Practices Act relates to the way pricing is advertised. However, in the full judgement in late December, available online here, the Federal Court made it clear that revised TPG television, and initial and revised radio, print, public transport and online advertisements published by TPG of the $29.99 plans were not misleading.
In a statement, the ACCC said it was currently reviewing the Judges’ reasons in the case. “The ACCC will continue to take enforcement action to improve clarity in advertising in the telecommunications industry as a priority,” the regulator stated. The judgement is likely to mean that TPG will be required to pay a substantially smaller fine, as $1.4 million of the initial $2 million fine related to revised advertisements — which the court found were not misleading.
Given how many people have whaled on TPG over these ads, and how many articles Delimiter has already published no the issue, I thought it necessary to note this common sense judgement in late December. And, as you’ll recall, I called this one right from the start. In December 2010, I wrote:
” … it’s not often your humble writer sides with TPG. We delivered the company a bit of a rebuke when it bought PIPE Networks, we’ve been known to opine about the strength of its customer service in the past, and we typically tend to recommend either iiNet or Internode to others when they ask us which ISP they should source their broadband from.
However, in this case, it has to be said that it looks like TPG is on solid ground defending the ACCC’s lawsuit.
Over the past week, we’ve been keeping an eye out for the company’s advertisements in a variety of media. Cinema ads, internet ads, print ads, ads on the sides of buses. And one thing seems clear: All of the TPG ‘Unlimited’ ads we’ve seen have displayed the extra costs pretty prominently. Sure, they’re not in a huge font size, but they’re there. It looks like TPG is right in this case: It doesn’t appear to have done anything wrong.
With this in mind, we have to ask: Has the ACCC gone too far with this lawsuit? Have Graeme Samuel and co bitten off more than they can chew?”
Let’s hope the ACCC will be a little more careful with its lawsuits in future. And we do wonder whether this victory (we doubt the ACCC will appeal this to the High Court) will see the return of TPG’s $29.99 plans.
Image credit: TPG