Damian Ivereigh, chief executive of Launceston-based ISP Launtel, said in a blog post: "Unlimited means 'no limits', none, i.e. infinity. Clearly, no broadband connection is capable of downloading an infinite amount of data.
"But if you’re going to take an absolute, legalistic approach, then this is an issue. What about acceptable use policies talking about an ill-defined 'reasonable use'? That’s a limit to downloading surely? At some point we just have to understand that this is all about human language, not legal language."
The Australian Competition and Consumer Commission on Friday issued a statement saying Aussie Broadband had been instructed to remove the words "congestion-free" from its advertising about its NBN plans.
But Ivereigh said this reaction was taking things too literally. "As human beings, we use absolutes all the time when we know they aren’t meant to be taken literally," he argued.
"For example, when my wife complains that I 'never take the trash out', I am not going to get very far [by] pointing out that she is wrong, because I actually took it out at the beginning of last year after the New Year’s party."
He pointed out that from a technical point of view, congestion was simply a case of a data packet being discarded somewhere in the network because there was no room on the next link for it to continue on its journey.
"This packet loss (i.e. congestion) is quite normal, indeed it is used as a signalling system for the sender to slow down to avoid further congestion and we as normal humans beings rarely notice it," Ivereigh said. "So no network can ever be completely 'congestion-free' in absolute terms unless it is not being used."
This technical description, he hastened to add, was not of much use when it came to a consumer deciding on choosing a provider. "What the consumer wants to know is will my Netflix buffer while I’m watching it? I do not believe the ACCC’s ruling helps in this regard because it has taken a very legalistic, absolutist position."
Denying that he was arguing for people to be allowed to be loose with marketing language, Ivereigh said that one should, instead, ask about the intent of the communication.
"If the intention is to mislead people, then that is wrong. I like to ask my marketing team would 'a moron in a hurry' be misled by this communication? Would they make a purchasing decision they came to regret based on this information?" he said.
Ivereigh noted that, importantly, Aussie Broadband had no contracts, it was very open about its CVC usage and also had a “stop-sell" policy when an area reached 80% capacity. "So I find it hard to believe that anyone would be misled – as in made a buying decision that they later regretted," he added.
Acknowledging that part of the problem was that "we are dealing with an industry (telecommunications) that is full of sharp practices", Ivereigh said telecommunications companies often created incentives for sales staff to mislead customers into signing up for long contracts that were hard to get out of.
"Unfortunately, the ACCC has very little visibility into what call centre sales staff say, [and] this is why it took so long for them to catch Optus misleading customers into signing up with them on the basis they (incorrectly) had no choice. They, therefore, spend more time looking at published advertising because it is easier than looking at the areas where customers are much more often being misled."