TORONTO – Mobilicity says its legal battle with Telus to keep its TV ads running was no-contest. In a press release, it declared a “colossal victory for Canadian wireless consumers” after the British Columbia Supreme Court dismissed an interlocutory injunction application by Telus to pull certain Mobilicity TV ads off the air. But Telus contends today’s Court decision only dealt with the interim ruling to have the ads pulled and that it will not impact their pursuit of a full hearing.
"Today is a big day for wireless consumers and continued competition in Canada," said Mobilicity president and chief operating officer Stewart Lyons. "We are happy with the court's ruling and that Canadian wireless consumers are still free to engage in a dialogue with each other about the many challenges facing Canadian wireless consumers – that's what our TV commercial is all about."
Lyons told Cartt.ca that he regarded Telus' claim as a bizarre “bullying tactic” given that the ad repeats a similar message about no-contracts that it’s made for the “past three years now and Telus has never had an issue with it until now.” He hopes now that “Telus will focus on its business and improving customer service as opposed to trying to intimidate a smaller competitor."
But according to Shawn Hall, spokesperson for Telus, the company instead plans to fully develop the facts and pursue another court hearing on the merits.
“We believe Mobilicity’s data throttling to restrict unlimited plans is a misleading claim that must be addressed. The court pointed out that Mobilicity’s reliance on fine print to support its claims was ironic considering the ad’s focus on ‘what you see is what you get,’ Telus agrees,” Hall told Cartt.ca.
Hall highlighted the following passage from the judgment: “This is not the place to resolve the technical issue of the effect of traffic throttling on the veracity of Mobilicity's representation that its data plan is unlimited. What is clear is that Telus' position is arguable. It certainly appears that a consumer attracted to Mobilicity's offer of "unlimited data" would be wise to check the fine print. Ironically, what you see may not necessarily be what you get.”
Hall told Cartt.ca that in Telus’ view the Mobilicity ad makes numerous false claims that misinform potential customers about both what other carriers offer and what Mobilicity offers. “We will not let that go unchallenged in such a hotly competitive market, and will be taking this issue to a full hearing.” Telus also takes issue that the ad claims other carriers place limits on unlimited calling plans by restricting unlimited calling to evenings and weekends, when “in fact no carrier in Canada does that,” said Hall.
In addition, Mobilicity claims to offer service with “no contracts,” a claim that Advertising Standards Canada has called out for special disapproval, claims Hall. He argues that Mobilicity’s contracts with customers have many onerous terms, including what it calls a “fair use policy” that Mobilicity uses to limit service they advertise as unlimited. Telus also disputes Mobilicity’s claims to have unlimited data plans.
“Buried in their fine print the company gives itself the right to throttle heavy users and engage in other intrusive traffic shaping measures that make it impossible for customers to stream video or download large files after a certain threshold. That’s not unlimited.”
Mobilicity said the timing of today's news is especially relevant as the CRTC is currently consulting Canadians about its proposed wireless code of conduct. The public hearing is scheduled to begin February 11th.
However, unless the code stipulates that it applies to existing contracts (as well as contracts signed after the effective date of the code), consumers who enter into long-term contracts during the holiday season may find themselves without recourse, said Mobilicity in a statement.
"Our TV commercial encourages consumers to take a closer look at all the plans available over the holidays," said Lyons. "This is what I feel consumers should do. Because if the CRTC code fails to apply to existing contracts, consumers who sign today may be out of luck."
Lyons added, "I've read many of the CRTC submissions by individual Canadians and I am confident the CRTC Code will address most of their concerns. My biggest question is: When will Canadians be able to benefit from the provisions of the Code? Will consumers who are already locked-into a contract benefit right away; or will they have to wait two or three years?"
