According to the ASA’s ruling on the matter, posted on its website, complainants Ryan Roxo and Joshua Gilbert were abusing the uncapped offering which was affecting the data consumption of MWEB’s other customers.
MWEB explained to the ASA that Roxo’s internet usage for the month of January 2012 had amounted to about 818 Gigabytes (GB) of data.
“This could be interpreted as downloading at near maximum speed (which is not likely) for at least 16 hours each day for the entire month, which is virtually impossible without making use of unattended, automated downloads,” MWEB said.
Gilbert downloaded approximately 300GB worth of data.
“This would require an average of 15 hours a day spent downloading at near-maximum speed for the entire month.”
MWEB said this contravened the Acceptable Use Policy (AUP) which was part of the contract and which both men agreed to.
The policy was put in place to ensure the sustained performance of the service for all its customers.
The men said they received letters from MWEB warning them they had “… repeated instances of continuous bulk downloads over prolonged periods”, and that failure to address this would result in “… steps to cancel your service”.
They argued that the product should not have been described as “uncapped” if MWEB was monitoring use and terminating connections based on volumes of data consumed.
MWEB said the word “Capped” referred to packages that allowed a customer a predetermined amount of data, and terminated connection once the customer reached this predetermined limit.
“Uncapped” referred to packages where a customer connection was never terminated, irrespective of how much data they used.
However, it was accepted that instances of “throttling” or “shaping” (slowing or delaying service) might well occur at some threshold levels to ensure sustainability of the service for all customers.
“Unlimited” referred to instances where there were literally no limits, ie, no throttling or shaping and no restrictions on use.
MWEB said the abusive manner in which the men exploited the system related to consumer behaviour with regard to uploading and/or downloading, and not the amount of data consumed as such.
The case was dismissed on October 22.
“There is nothing before the directorate to suggest that customers who abide by the respondent’s AUP would see their connection terminated for any reason, which in turn means that the references to offering ‘Uncapped’ internet are not misleading,” the ASA ruled.