Dodo Services Pty Ltd

The Australian Competition and Consumer Commission (ACCC) has accepted a court enforceable undertaking from Dodo Services Pty Ltd (Dodo) in relation to claims about speeds available to consumers on its fibre-to-the-node (FTTN) and fibre-to-the-building (FTTB) broadband plans supplied over the National Broadband Network (NBN) that were likely to contravene sections 18, 29(1)(b) and 29(1)(g) of the Australian Consumer Law (ACL).

Dodo, among other services, is a supplier of NBN services to consumers.

The relevant conduct

• Dodo offered NBN services to consumers with FTTN and FTTB connections. Dodo offered the following speed plans:
  • 100 megabits per second (Mbps) download and 40 Mbps upload (100/40 Plan);
  • 50 Mbps download and 20 Mbps upload (50/20 Plan);
  • 25 Mbps download and 5 Mbps upload (25/5 Plan); and
  • 12 Mbps download and 1 Mbps upload (12/1 Plan),

    (collectively, the Speed Plans).

• Between 1 October 2015 and 30 June 2017, Dodo promoted the Speed Plans (excluding the 50/20 Plan) online, on television, in newspapers and on radio. Dodo’s promotion of the Speed Plans included statements such as “Up to 100Mbps download. Up to 40Mbps upload”, which represented to consumers that their NBN connections could deliver speeds up to the maximum speed of their Speed Plan.
• In fact, Dodo was not capable of delivering those speeds to many consumers, because those consumers did not have NBN connections capable of reaching those speeds.

The relevant undertaking

To address the ACCC’s concerns, Dodo provided the ACCC with a section 87B undertaking which states that, among other things:

• Dodo will contact current and former affected consumers by no later than 27 April 2018 by letter or email to explain the maximum speed they are able to receive, the types of remedies available and how to obtain a chosen remedy.
• The remedies available to a consumer depend on the consumer’s Speed Plan. Some options for consumers will include:
  • change to a plan of the consumer’s choice and receive a refund;
  • exit their plan (and any associated bundle) without cost and receive a refund; or
  • remain on their current plan with no refund.
• For the next three years, Dodo will not represent that it can or will provide consumers on FTTN or FTTB connections with download and upload speeds at the maximum speeds specified in the consumer’s plan unless it also, within four weeks of the activation of a Speed Plan:
  • checks the maximum speed each consumer can receive, and
  • if the maximum speed a consumer can achieve is below the advertised maximum speed of the consumer’s Speed Plan, Dodo will notify the consumer and provide them with options to remedy the situation.

Background

• Dodo is wholly owned by Vocus Group Limited (Vocus).
• On 22 March 2018, the ACCC also accepted court enforceable undertakings from each of M2 Commander Pty Ltd (Commander) and Primus Telecommunications Pty Limited (iPrimus) on similar terms to the Dodo undertaking. Commander and iPrimus are also wholly owned by Vocus.
  • Commander’s undertaking is available at: https://www.accc.gov.au/public-registers/undertakings-registers/m2-commander-pty-ltd
  • iPrimus’ undertaking is available at: https://www.accc.gov.au/public-registers/undertakings-registers/primus-telecommunications-pty-limited
• The ACCC has previously accepted court enforceable undertakings from Telstra Corporation Limited (Telstra), Optus Internet Pty Limited (Optus), TPG Internet Pty Ltd (TPG), iiNet Limited (iiNet) and Internode Pty Ltd (Internode) in relation to conduct similar to the subject of the Dodo undertaking. Telstra, Optus, TPG, iiNet and Internode each made representations about speeds available to consumers on their respective NBN FTTN and FTTB broadband plans that were likely to contravene the ACL.
• Telstra’s court enforceable undertaking was accepted on 7 November 2017 and is available at: http://registers.accc.gov.au/content/index.phtml/itemId/1204319.
• Optus’ court enforceable undertaking was accepted on 11 December 2017 and is available at: http://registers.accc.gov.au/content/index.phtml/itemId/1204733
• TPG’s court enforceable undertaking was accepted on 20 December 2017 and is available at: https://www.accc.gov.au/public-registers/undertakings-registers/s87b-undertakings-register/tpg-internet-pty-ltd-s87b-undertaking
• iiNet’s court enforceable undertaking was accepted on 19 March 2018 and is available at: https://www.accc.gov.au/public-registers/undertakings-registers/iinet-limited
• Internode’s court enforceable undertaking was accepted on 19 March 2018 and is available at: https://www.accc.gov.au/public-registers/undertakings-registers/internode-pty-ltd

Variation to undertaking

On 26 April 2018 the ACCC accepted a variation to the section 87B undertaking provided to the ACCC by Dodo Services Pty Ltd, previously accepted by the ACCC on 22 March 2018.

The purpose of this variation to the undertaking is to:

1. extend the date by which Dodo must contact current and former Affected Consumers from 27 April to 18 May 2018 and amend the corrective notice to reflect this;
2. amend the deadline for Dodo to contact future Affected Consumers; and
3. extend the date by which Dodo is to provide a report to the ACCC from 29 May–1 June 2018 to 19–22 June 2018.