The Australian Competition and Consumer Commission (ACCC) has accepted a court enforceable undertaking from TPG Internet Pty Ltd (TPG) 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).
TPG, among other services, is a supplier of NBN services to consumers.
The relevant conduct
Since 1 September 2015, TPG offered NBN services to consumers with FTTN and FTTB connections. TPG has offered consumers a choice from different combinations of the following speed plans at different times:
100 megabits per second (Mbps) download and 40 Mbps upload (100/40 Plan);
50 Mbps download and 20 Mbps upload (50/20 Plan);
25 Mbps download and 5 Mbps upload (25/5 Plan); and
12 Mbps download and 1 Mbps upload (12/1 Plan),
(collectively, the Speed Plans).
Between 1 September 2015 and 30 June 2017, TPG promoted the Speed Plans (excluding the 50/20 Plan) online, on television, in newspapers and on radio. TPG’s promotion of the Speed Plans included statements such as “Popular for families. Up to 25Mbps” and “Seriously Fast Internet. Up to 100Mbps” which represented to consumers that their NBN connections could deliver speeds up to the maximum speed of their Speed Plan.
In fact, TPG 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, TPG provided the ACCC with a section 87B undertaking which states that, among other things:
TPG will contact previous and current affected consumers by no later than 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 Speed Plan. Some options for consumers will include:
change to a plan of the consumer’s choice and receive a refund;
exit their plan (and any associated bundle) without cost and receive a refund; or
remain on their current plan with no refund.
For the next three years, TPG 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 TPG 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, TPG will notify the consumer and provide them with options to remedy the situation.
TPG is wholly owned by TPG Telecom Limited.
The ACCC has previously accepted court enforceable undertakings from Telstra Corporation Limited (Telstra Corp) and Optus Internet Pty Limited (Optus) in relation to conduct similar to the subject of the TPG undertaking. Telstra and Optus each made representations about speeds available to consumers on their respective NBN FTTN and FTTB broadband plans that were likely to contravene the ACL.