The Advertising Regulatory Board (ARB) has ordered Rain to immediately withdraw advertising claims related to its 5G network speed and unlimited data offering. This followed an ARB advertising appeals committee decision which dismissed Rain’s appeal of a July ruling on its 5G network claims.
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The initial complaint, submitted by Suvasin Moodley, argued in his experience of the product, the advertised characteristics of Rain’s 5G network were misleading. One Rain 5G advertisement claimed “Unlimited data 24/7”, “Your choice of network speeds”; and “Your choice of streaming quality”.
Another advertisement claimed Rain’s “unlimited home 5G premium” service provides “average network download speeds over 200Mbps” and “high-quality video streaming”. Moodley disputed these claims and submitted evidence showing download and upload speed tests that he had conducted at different locations and at different times.
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The speed test results showed huge inconsistency in the speed of the Rain downloads, ranging from over 200Mbps down to zero Mbps. The evidence further showed that Rain’s upload speeds appear to have stabilised at or near zero Mbps.
He added that Rain’s data is not available “24/7” because the “line continuously drops”, and that there is no choice of network speeds or streaming quality because the “line is very poor”.
In its response to the complaint, Rain stated that its 5G product is truly unlimited because it does not charge per GB of data. When it comes to choice of network speeds and choice of streaming quality, Rain emphasised that this depends on the type of 5G plan selected by the customer.
ARB ruling
In July, the ARB ruled that Rain’s advertising of unlimited 24/7 data at average speeds of over 200Mbps on its 5G products is misleading and unsubstantiated. The ARB said Rain had failed to provide any evidence in substantiation of its speed and quality claims, or that it actually offers the claimed performance.
It gave Rain an opportunity to augment its response by submitting such evidence. Despite this, the operator elected not to submit any further evidence. The ARB added that Rain had not addressed the complaint that its product was not available all the time, i.e. “24/7”.
It took the view that the claim could be interpreted in two ways: either the data was uncapped all the time, or the data was continuously available, without interruption. “This meant that the claim is ambiguous and therefore misleading and in breach of the advertising code,” the ARB said. The ARB instructed Rain to remove or amend the advertisements immediately as deadlines permit.
Rain appeals the ruling
Rain decided to appeal the ARB’s ruling on two grounds:
The finding that Rain cannot substantiate its claims in the advertisements “is incorrect and/or unreasonable”, it said.
“The finding that ‘unlimited data 24/7’ should be interpreted as meaning ‘unlimited data is always available to the consumer without interruption’ is incorrect and/or unreasonable and not in line with reasonable business-like application of its code and/or the law,” Rain said.
In its notice of appeal, Rain sought to provide evidence in substantiation of the claims in the advertisements. This was allowed, but the Advertising Appeals Committee (AAC) highlighted that advertisers are required to have evidence in their possession before they publish their advertisements.
“It is that evidence that should be placed before the directorate when an advertiser is required to respond to a complaint,’ the AAC said.
The evidence provided by Rain consisted of three graphs and a statement by Christopher David Geerdts. Geerdts stated that the three graphs “look relevant and plausible and that the interpretation contained in the [notice of appeal] is consistent with the data”.
AAC ruling
The AAC was not convinced, saying Geerdts cannot be regarded as an “independent, credible expert” in this case. “Nothing is known about this company, least of all whether it is regarded by others in the telecommunications sector as an independent, credible expert in 5G network analysis.”
The AAC added that Geerdts does not confirm the accuracy or reliability of the data – he simply says that the graphs “look relevant and plausible”. To make matters worse, the data was generated by a legal technology strategist employed by Rain.
Another problem was that the data shown in the graphs was not held by Rain before the advertisements were first published. In addition, Rain’s claim for its 5G Premium network is that it provides an average download speed in excess of 200Mbps.
According to the AAC, this means the network averages out at a download speed of 200Mbps or more. “There is no independent, credible evidence before us that this is so,” it said.
The AAC found that Rain has not substantiated its advertised claims that its 5G network provides “unlimited data 24/7”, and that it has an average download speed of over 200Mbps. The AAC dismissed Rain’s appeal and added that Rain must remove these claims from its advertising with immediate effect.
Rain 5G advertisements
