By Ahmad Hathout
The Competition Bureau’s deceptive marketing practices lawsuit against Rogers unfairly singles out the cable company’s “unlimited” wireless plans, cherry-picks out-of-context material, and doesn’t square with the fact that the plans have followed CRTC rules since they launched in the summer of 2019, according to the company’s reply submission to the Competition Tribunal.
The competition watchdog late last year filed a suit alleging Rogers has for years been misleading Canadians with its ‘Infinite’ mobile wireless plans, which it claims gave customers the impression that they were getting unlimited high-speed data when the speed of the data is throttled after a certain amount is used inside the billing period. The bureau appended a number of exhibits to its application to the tribunal, including the aggressive marketing by Rogers of the plans as “unlimited” and the fact that the extent of the speed limit on the company website is not immediately visible.
But Rogers claims the bureau is so focused on the “unlimited” branding – such as the word “Infinite” and the “infinity loop” symbol – that it is allegedly ignoring advertisements and disclosures during the multi-step purchasing process that explicitly state the speed limitations of those plans along the way.
“The general impression conveyed by Rogers’ promotional representations is reinforced by clear, conspicuous, and repeated disclosures throughout the purchasing process,” the company says in its submission, adding it is “impossible” for customers to purchase a plan without learning that the different plans offer different amount of high-speed data at different prices and that they have access to unlimited data with reduced speeds after the allotment is used. (Below images are from Rogers’s submission.)
Rogers also addresses what the bureau views as a lack of upfront disclosure about the “magnitude” of the speed throttling. The company website lists the amount of high-speed data the consumer will get, followed by another line that says, “Unlimited data at reduced speeds after,” with an asterisk that points to a panel at the bottom of the page that must be manually opened to see the extent of the throttling, which is a max speed of a significantly reduced 512 kilobits per second. (Telus’s 512 Kbps disclaimer emerges from the bottom of the page after the click of a superscript on the panel, while Bell states the throttled speed right on the panel without the need to click anything.)
Beside the fact that it has a dedicated line saying that speeds will be reduced after the threshold, Rogers counters with the fact that the speeds offered at high speeds are in bold font.
After customers select a plan on the website, they are then taken to the “Build Your Plan” page, which further indicates the high-speed amount and the throttle disclaimer. After that, they are prompted to review their order and are given a copy of the service agreement, which Rogers says stipulates again the plan and its speed limits beyond the threshold.
Rogers also argues that the bureau’s suit removes the broader context in which it markets its plans. The backdrop, the argument goes, is the fact Canadians have become wise to what these plans entail because the plans have been in the market for over five years and because they have been inundated with marketing from the providers.
“Ordinary consumers of Infinite plans are highly knowledgeable about wireless services,” Rogers argues. “They know that plans always come with different features and a variety of terms and conditions, beyond those disclosed on billboards or space constrained advertisements.”
“The ubiquitous presence of these plans in the market over the last five years, together with carriers’ consistent marketing of them, are important context for the Bureau’s allegations,” it adds. “The messaging from other carriers reinforces Rogers’ own messaging and thus informs how the ordinary consumer would understand these plans, the features they offer, and their limits on high-speed data usage.”
To that end, Rogers says it is left wondering why it is allegedly being “singled out” when other carriers are allegedly marketing their plans similarly. “The Bureau has improperly and unfairly singled out Rogers in this Application for longstanding representations that have been industry-wide for years,” Rogers claims.
“No other carrier has been subject to enforcement action for its promotion of ‘unlimited’ data plans over the past five years, despite having made substantially identical representations to those at issue in this Application,” it added. “It subjects Rogers to reputational damage, and unfairly tilts the competitive landscape to the material prejudice of Rogers and material advantage of its competitors.”
Rogers further argues that data consumption habits have changed since the introduction of these “Infinite” plans. Canadians have been consuming more data over the years, which Rogers says has affected the plans they purchase.
“The vast majority of Infinite customers never exceed their monthly high-speed data buckets, and therefore never experience speed reductions at all,” Rogers says in its submission. “Consistent with the relative increase in the size of Infinite high-speed data buckets, the average utilization of high-speed data was never close to the average bucket size, and consistently declined since Infinite plans were launched in 2019.”
Rogers further states that only a small percentage of its Infinite customers exceeded their high-speed data each month since the launch of the “unlimited” plans. And a vast majority of that small percentage continued to use the speed-throttled data without buying more high-speed data, the company says.
It’s been years since the introduction of these plans, yet the CRTC has never lodged a complaint against Rogers about how it markets them, the company further states. It believes the reason for that is because the plans are onside of the regulator-administered Wireless Code.
“The Wireless Code expressly permits carriers to market ‘unlimited’ data plans, provided
(a) those plans do not carry any automatic overage fees, and (b) the carrier clearly explains any plan limits in a ‘Fair Use Policy’ and ‘Critical Information Summary,’” Roger notes, adding even the bureau’s 2017 Deceptive Marketing Practices Digest doesn’t say that wireless carriers should never use the term “unlimited” with associated disclaimers about limitations.
The fact that the bureau – which began reviewing the marketing of these plans in March 2022 – took no enforcement action for so long is telling, according to Rogers, which alleges that lack of action allowed the further marketing of these plans which it now finds problematic.
