The Australian Competition and Consumer Commission (ACCC) has accepted a court enforceable undertaking from Optus Internet Pty Limited (Optus) in relation to claims about speeds available to consumers on its fibre-to-the-node (FTTN) and fibre-to-the-building (FTTB) broadband plans supplied over the National Broadband Network (NBN) that were likely to contravene sections 18, 29(1)(b) and 29(1)(g) of the Australian Consumer Law (ACL).
Optus Internet Pty Ltd
Optus, among other services, is a supplier of NBN services to consumers.
The relevant conduct
Since 1 September 2015, Optus offered NBN services to consumers with FTTN and FTTB connections through the following speed plans:
100 megabits per second (Mbps) download and 40 Mbps upload;
50 Mbps download and 20 Mbps upload;
25 Mbps download and 5 Mbps upload; and
12 Mbps download and 1 Mbps upload,
(collectively, the Speed Plans).
Optus promoted the Speed Plans online, on television, in print and on radio. Optus’ promotion of the Speed Plans included statements such as “BOOST. Up to 25Mbps Download. Up to 5Mbps Upload. Our recommended choice for most customers…” which represented to consumers that their NBN connections could deliver speeds up to the maximum speed of their Speed Plan.
In fact, Optus was not capable of delivering those speeds to many consumers, because those consumers did not have NBN connections capable of reaching those speeds.
The relevant undertaking
To address the ACCC’s concerns, Optus provided the ACCC with a section 87B undertaking which states that, among other things:
Optus will contact previous and current affected consumers on or before 2 March 2018 via letter or email to explain the maximum speed they are able to receive, the types of remedies available and how to obtain a chosen remedy.
The remedies available to a consumer will depend on the consumer’s plan or bundle. Some options for consumers will include:
Option 1 – for consumers on a ‘Broadband Only’ plan, move to, and pay for, a plan of the consumer’s choice and receive a refund.
Option 2 – for consumers on a bundle, remain on or move to, and pay for, the ‘base’ speed plan and receive a refund.
Option 2 – exit their plan (or bundle) without cost and receive a refund.
Option 3 – remain on their current plan (or bundle) with no refund.
For the next three years, Optus will not represent that it can or will provide consumers on FTTN or FTTB connections with download and upload speeds at the maximum speeds specified in the consumer’s plan unless it also, within four weeks of the activation of a Optus speed plan, checks the maximum speed each consumer can receive. If the maximum speed a consumer can achieve is below the advertised maximum speed of the consumer’s speed plan, Optus will notify the consumer and provide them with options to remedy the situation.
On 7 November 2017 the ACCC accepted a court enforceable undertaking from Telstra Corporation Limited (Telstra Corp) in relation to its NBN broadband services. Telstra Corp made representations about speeds available to consumers on its NBN FTTN and FTTB broadband plans which were likely to contravene the ACL. Telstra Corp’s court enforceable undertaking is available at http://registers.accc.gov.au/content/index.phtml/itemId/1204319.