ACCC says Optus pitch is misleading

PowerPoint presentations used by Singtel Optus amounted to "training in misrepresentation", according to Neil Williams SC, lead barrister for the Australian Competition and Consumer Commission (ACCC).

Williams' comments were made in the Federal Court in Sydney this afternoon as part of the ACCC's case against Optus, which claims the telco used misleading or deceptive advertising.

The PowerPoint decks in question were used to train the staff of OCIS and Direct Connect, telephone contractors engaged by Optus to help sell their broadband services. They included sample scripts for telephone staff to use.

The ACCC contends that if the scripts were "faithfully reproduced by the person talking to the consumer", attention would not be drawn to the fact that once their monthly data allowance was consumed and their internet connection throttled to 64Kbps, it was no longer broadband.

This point was dismissed by Optus' lead barrister, Stephen Finch SC. "That must be sufficiently notorious to the sort of user that is coming to buy broadband," he said.

Finch also continued Optus' arguments from this morning that even if an advertisment by itself might be considered misleading, that condition is "cured" with further information.

"Access to a broadband service is, in our submission, not an impulse purchase of a product off a shelf, like a bottle of shampoo," Finch said. "One can't simply turn up to a website and say 'I'd like some broadband thanks' and put it in a trolley ... You can't say 'Oh, that's a pretty colour, that's a green broadband, I'll buy that one.'"

Optus contends that broadband is a complex product. As with mobile telephone plans and pay TV, consumers are "already expecting there to be structure to the service", such as the breakdown into peak and off-peak times.

"One cannot buy the product from the billboard.... All one needs in the context of an ad like that is a sufficient flag," Finch said. The flag puts the customer on notice that there are further details to the deal.

"There is a class of person that does read all that fine print," said Justice Nye Perram. "Most of them have been appointed to this court."

Optus' position is that what is possible and effective in a billboard or a short TV spot will differ from what is possible and effective in an online advertisement or a flyer.

"The briefer the ad, the stronger our submission," Finch claimed, because there is then even more of a case that a consumer who didn't gather further information would not have been taking due care in selecting their broadband plan.

The ACCC continued to maintain that the advertisements give the impression that when peak data is consumed that only peak-hour usage is throttled.

Optus says its scripts for sales staff included "must-mentions", including that the connection is throttled "regardless of whether you have off-peak data remaining".

The hearing has now concluded. Justice Perram expects to hand down his decision at 2.15pm this Friday.