By Ahmad Hathout
The Competition Bureau is suing Rogers at the Competition Tribunal for allegedly misleading customers by marketing its mobile wireless data as “unlimited” when speeds are throttled after the data cap has been exceeded.
“Rogers has made, and continues to make, representations to the public that convey the materially false or misleading general impression that Rogers Infinite Unlimited Plans offer unlimited and infinite data, allowing consumers to use as much data as they want, free from data limits,” the bureau claims in its tribunal application, filed Monday. “In fact, Rogers is providing plans whose high-speed data is limited to a defined amount and thereafter data speeds reduced by over 99%.”
The bureau is asking the tribunal to order Rogers to stop the alleged misconduct, pay an administrative monetary penalty determined by the tribunal, and pay amounts determined by the tribunal to compensate customers who purchased products and services that were allegedly marketed misleadingly.
The bureau had started reviewing the marketing practices of telecommunications providers in the Canadian wireless market in March 2022 after the large telecoms started doing away with overage charges in the summer of 2019, which meant subscribers were going to stop being charged for extra data. Instead, the plans would give customers a certain amount of data at high speeds and reduce those speeds only after they exceeded that amount during the billing period.
But while the term “unlimited” was, and still is, being used by others in the industry to market those plans, the bureau asked a Federal Court last year for an order – later granted – compelling only Rogers to divulge information to aid in its investigation into the cable company for the marketing of those plans. It was that Federal Court application that revealed the investigation.
“We introduced unlimited data plans in 2019 to deliver great value to our customers,” Rogers said in a public statement Monday. “These plans helped eliminate overage fees and gave customers bill certainty at a time when data use started growing exponentially. These plans are commonplace in the industry and reflected a significant and positive development for consumers and small businesses. The advertising of our Infinite plans is clear and truthful, and we will fight this litigation. These plans represent the norm in Canada and the Bureau’s decision to single out Rogers after five years is quite concerning.”
The bureau is concerned about how the plans had been, and are, marketed against what consumers are actually getting. It notes that at the start of June 2019, Rogers launched an aggressive advertising national campaign that “sought to establish at the outset the concept of ‘infinite data’, with a main message of ‘unlimited data is here,’” the bureau’s application says, adding the ads “leaned heavily into the terms ‘unlimited’ and ‘infinite’, as well as the infinity loop.”
It also takes issue with language in the marketing, broadcast through various high penetration media, including the repeated use of the words “on and on” to convey that subscribers will be able to stream endless amounts of content; the use of the terms “no restrictions” and “without limits;” and the specific line, “enjoy lightning fast streaming, gaming and sharing with a connection that keeps up with you, so you’ll never miss a beat while you’re on the go.”
“The literal meaning and the general impression conveyed by the word ‘unlimited’ is very straightforward and aligns with the dictionary meaning: something that is not limited in any way or restricted in terms of number, quantity, or extent,” the application says, adding “infinite” also means “limitless, endless in space, extent or size; impossible to measure.” Terms which do not apply to Rogers’s plans, the bureau charges.
The bureau notes that, in 2017, it published guidelines for advertisers in the telecom industry warning against making unlimited claims and manipulating its plain meaning by adding qualifying language in disclaimers.
“Canadians need accurate and truthful information when purchasing goods and services especially essential services like wireless data plans,” the bureau said in a press release announcing the lawsuit. “This case demonstrates that the Bureau remains committed to ensuring that Canadian consumers are not misled. And that we take all appropriate measures to address false or misleading claims in the marketplace.”
Rogers still uses the term “unlimited” on its website but has a caveat that the unlimited data is “reduced speeds thereafter,” with an asterisk that goes to a “see full details” panel near the bottom of the page that must be opened manually. Contained within is an explanation that the speeds for the download and upload are reduced to up to 512 kilobits per second until the end of the billing cycle if the subscriber uses all their data inside the billing period.
The bureau takes issue with what it says is a lack of visibility on this caveat. “While Rogers is fully aware of the extent to which the plans are throttled, nowhere in the Plan Titles [what users see when they select plans] does it disclose the magnitude of the throttling,” the bureau’s application says. “For example, the Plan titles do not disclose that the 5G/5G+ speeds will be reduced to speeds between roughly 500 to 2,000 times slower for plans with speeds of 250 Megabit per second (“Mbps”) and 1 Gigabit per second (“Gbps”) respectively, or that 1 Gbps would be throttled down to 0.000512 Gbps.”
“Rogers’ own internal records … show that speeds up to nearly six times higher than the throttled speed of 512 Kbps are considered useful only for ‘essential connectivity’ and that significantly faster speeds are needed for activities such as high-definition (“HD”) video streaming, video calling, cloud gaming or downloading large files, such as movies,” the bureau alleges in the application.
The bureau alleges aggravating factors in Rogers’s conduct, including that the marketing was and is national in scope; has been ongoing for five years and six months; impacts vulnerable people, including those who do not read the fine print, newcomers, and those with an expectation of what “unlimited” means; secured for the company high gross revenues; and was done by a company with a strong financial position.
The bureau launched the investigation into Rogers on April 6, 2023, three days after the cable giant closed its acquisition of Shaw, which the bureau fought to block. The bureau told us flatly at the time that the marketing inquiry is “completely unrelated to the Rogers-Shaw merger review and litigation.”
Other telecoms in the industry, including Bell and Telus, still use the term “unlimited” when marketing their data plans but also throttle their subscribers’ speeds after they’ve used up their allotted high-speed data for the month. In fact, the bureau notes in its application that the launch of Rogers Infinite plans “was quickly followed by their competitors launching similar plans with representations about ‘unlimited’ data.” Similar to its statement on Monday, Rogers told us last year that it was being “singled out.”
The bureau does not make public its active investigations, which can be unmasked when it files for orders from the court or from the tribunal. We asked, anyway, whether the bureau has any active investigations into other telecoms.
“The Bureau is committed to taking all necessary actions to address false or misleading claims in the marketplace,” the bureau told Cartt. “The Bureau must conduct a thorough and complete examination of the facts regarding any issue before reaching a conclusion as to whether the Competition Act has been contravened. As the Bureau is required by law to conduct its work confidentially, I can’t provide further information related to our work in the telecommunications industry.”
In 2016, telecom Comwave Networks Inc. agreed to pay $300,000 in a settlement with the bureau after the company was found to have falsely promoted its internet and home phone services as “unlimited,” when the watchdog found there were monthly caps on usage.
The CRTC recently announced it is embarking on proceedings that will look into how telecoms can be more transparent, including about limitations, on services they provide.
