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Home Rulings VODACOM “LEAST DROPPED CALLS” / MTN / 2016-5151F

VODACOM “LEAST DROPPED CALLS” / MTN / 2016-5151F

Attorneys Webber Wentzel, acting on behalf of the complainant, lodged a competitor complaint against two of the respondent’s television commercials that were broadcast on several television channels, and posted on YouTube.

One commercial features various scenarios where callers suddenly lose connectivity. A lady explains that "Vodacom is doing something about dropped calls”. At the end, a promise is made that "If your call is dropped, Vodacom will give you free minutes, guaranteed”. During this claim, the words "If your call is dropped, we’ll give you free minutes guaranteed*” appear on-screen, along with a "Network GUARANTEE” logo. The closing voice-over encourages viewers to "switch to SA’s best network with the least dropped calls …”, while words to this effect are displayed on-screen.

The other commercial features similar scenarios, but focusses on one character trying to ascertain where his wife is giving birth while contending with connectivity issues. Finally, he is offered a Vodacom phone and is able to speak to his wife and meet his new child. At the end, the voice-over encourages viewers to "switch to SA’s best network with the least dropped calls”, while words to this effect appear on-screen.

Complaint

The complainant submitted, inter alia, that the claim "SA’s best network with the least dropped calls…” appears with no disclaimer or qualification, but rather a statement that the claims are "*As verified by independent research. T’s&C’s apply”.

The respondent submitted that it has commissioned its own "drive tests” via ATIO across Johannesburg, Pretoria, Durban and Cape Town. These tests, which included more than 52 000 calls per operator, showed that MTN is currently on par with Vodacom at a dropped call rate of only 0,4%. In addition, it pointed out that research conducted by the Independent Communications Authority of South Africa (ICASA) showed that MTN had the least dropped calls in Limpopo during April 2016, as well as in the North West during August 2016.

To further bolster its argument, the complainant asked its partners to do a "P3” commissioned benchmarking exercise in Durban. Arguments were presented as to why P3 should be regarded as an expert entity, and the complainant submitted that this report shows, inter alia, that MTN outperformed its competitors on dropped call rates and overall data performance.

Given the above, it would appear that Vodacom is making unsubstantiated and misleading superiority claims about its network and dropped call rates, which in turn contravene the ASA Code. Copies of the relevant test reports were submitted in support of the complaint, and the complainant requested specific sanctions to be imposed on the respondent in the event of an adverse ruling.

Relevant Clauses of the Code of Advertising Practice

The complainant argued that the following clauses of the Code had been contravened:
  • Section II, Clause 2 – Honesty
  • Section II, Clause 4.1 – Substantiation
  • Section II, Clause 4.2.1 – Misleading claims

Response

The advertising agency Ogilvy & Mather Johannesburg, on behalf of the respondent, firstly argued that the complainant cannot rely on cherry-picked regional data to support its argument, as the claim relates to the respondent’s network capacity across the country. 

The respondent made reference to the ruling of the Advertising Industry Tribunal (the AIT) in Vodacom "Fastest” Network / MTN / 22838 (15 July 2014), in which Catalyst (a SAMRA accredited company) and Ookla data was accepted as evidence, and submitted that it would rely on verification from these entities again in the current matter. 

The respondent quoted, inter alia, the following excerpts from the Catalyst report:
  • "The analysis of MTN’s complaint proves that it is based on reports that are irrelevant and/or incorrectly applied due to their testing of relatively small geographical areas, limited testing periods, inaccuracies, irrelevant network tests, lack of independence, as well as poor sample sizes. None of the reports submitted by MTN directly relate to Vodacom’s branded claim which is a national, technology-agnostic claim of least dropped calls”;
  • "… a test that is conducted within a specific, small region over a relatively short period would not be a representative test of customers’ typical voice experience across the country since it will be skewed by conditions pertaining to that region during the time of the sample”;
  • "… the ATIO testing data used by Vodacom is more accurately aligned with a typical mobile user’s experience across South Africa than the limited testing methodology and testing provided in the ATIO report submitted by MTN. The difference in the testing methodologies employed in the respective MTN and Vodacom ATIO reports are critical to the claim. For example the MTN ATIO trialling employs testing to a fixed line while the Vodacom testing tests to an actual mobile device. This is a crucial difference since mobile to mobile calls represent 98% of the total mobile voice usage and hence the typical mobile voice user’s behaviour is represented by mobile to mobile calls and not mobile to fixed calls”.
In addition, the respondent argued that on the strength of Catalyst’s report, the claim of having the least dropped calls in South Africa is substantiated, and it cannot be said to be misleading or dishonest.

ASA Directorate Ruling

The ASA Directorate considered the relevant documentation submitted by the respective parties.

Clause 2 of Section II states that advertisements should not be so framed as to abuse the trust of the consumer or exploit his lack of experience or knowledge or his credulity.

Clause 4.1 of Section II states, inter alia, that an advertiser must hold documentary evidence to support all claims that are capable of objective substantiation.

Clause 4.2.1 of Section II states that advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.

As noted above, the respondent relied on a report from Catalyst Research & Strategy in support of its claim. The Catalyst report, in turn, is based on data obtained from ATIO and P3. The Directorate notes that it has previously accepted data from ATIO, as analysed and verified by Catalyst, which Vodacom submitted in support of the claim "less dropped calls” – see Vodacom "The Khumalos” / MTN / 22937 (13 February 2014). The Directorate further notes that the complainant has also relied upon data obtained from ATIO and P3 to support its arguments.

The Catalyst report states, inter alia, that all ATIO and P3 source data was analysed and verified as being relevant and credible, as well as being highly respected. It confirms that the data from ATIO and P3 are substantial, national reports with large sample sizes, taken over a long period and covering multiple technologies, while using customer-relevant test scenarios. The Catalyst report makes the following findings:
  • According to the data from ATIO, for the period from February 2016 to November 2016, Vodacom consistently had less dropped calls than MTN for 3G-preferred and 4G-preferred voice calls;
  • During that same period, Vodacom achieved a national average dropped call rate below that of MTN and all the other mobile operators;
  • Vodacom achieved an average dropped call rate of 0.35%. This is more than 54% better than the closest competitor, MTN, which achieved an average dropped call rate of 0.77%;
  • According to the P3 data, Vodacom achieved an overall dropped call rate of 0.9%, while MTN achieved a dropped call rate of 2.8%.
The report concludes that Vodacom has the network with the least dropped calls.

In light of this, Vodacom’s claim appears to be substantiated in terms of Clause 4.1 of Section II. In addition, the Directorate is satisfied that the evidence shows that the claim is neither misleading nor dishonest, and the claim therefore does not contravene Clause 2 or Clause 4.2.1 of Section II.

The complaint is dismissed.

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