The Australian Competition and Consumer Commission (ACCC) has successfully asked the High Court to hear an appeal against a finding by the Full Federal Court that certain advertisements for TPG’s Unlimited ADSL2+ broadband Internet service were not misleading.
The ACCC is also appealing the Federal Court’s order that TPG pay a fine of $50,000 (reduced from $2 million) for misleading television advertisements and its failure to prominently display in its initial advertisements the single price for the advertised service.
The matter has dragged on for nearly two years. On 4 November 2011 the trial judge, Justice Murphy, found that TPG’s initial and amended Unlimited ADSL2+ advertisements, which ran between September 2010 and November 2011, were misleading because they conveyed the impression that TPG’s Unlimited ADSL2+ broadband Internet service could be acquired at a cost of $29.99 per month.
In fact, this service could be acquired only with a bundled home telephone line, for an additional $30 per month plus start up costs. The judge also said that the initial 2010 advertisements did not prominently specify the minimum charge for the advertised service, and were misleading because they did not disclose the additional up front charges.
Justice Murphy ordered TPG to pay a fine of $2 million. TPG appealed to the Full Federal Court, which on 20 December 2012 upheld Justice Murphy’s finding that the initial television advertisements for TPG’s Unlimited ADSL2+ offer were misleading, but ruled that the other TPG advertisements were not misleading because the bundling requirement and set up charges were adequately disclosed.
The Full Court said at that hearing that an ordinary or reasonable consumer would have known that these services are commonly bundled and that set-up charges are often applied. On 4 April 2013 the court reduced the fine to $50,000, just 2.5% of the original amount.
Now it’s back with the lawyers again, this time to the highest court in the land. You can bet TPG’s legal costs are more than the $50,000 it currently has to pay. The ACCC’s costs will also be substantial. It has deep pockets, but also a bad track record of losing cases in court.
There is no word on when the ACCC’s High Court appeal will be held. But at least there is no further avenue of appeal, for either party.