Between December 2011 and January 2012, PhonepayPlus received 14 complaints from consumers in relation to a trivia competition subscription and non-subscription service (the “Service(s)”). The Services operated under brand names including “Grocery Shopping”, “Win £500 grocery shopping vouchers”, “Win 2 tickets to the Champions League Final 2012”, “Win an iPad” and “Win a pharmacy coupon”. The Services were operated by the Level 2 provider, JJP Mobile B.V. on the premium rate shortcodes 64888 and 65558. There were two Level 1 providers, OpenMarket Limited and TxtNation Limited. TxtNation Limited was directly contracted with the Level 2 provider. The Services were operational from at least September 2011 and were voluntarily suspended in February 2012 by TxtNation Limited, following correspondence with PhonepayPlus.
Consumers were charged £4.50 per week (via three chargeable SMS messages costing £1.50 each) for the subscription Service. Consumers were charged either £1.50 per SMS message or £1.50 per SMS message plus a £3.00 “sign up” fee.
The majority of complainants stated that they had received unsolicited promotional SMS or email messages; in some cases the messages were personalised. Other complainants reported viewing misleading promotions and/or promotions without pricing information.
The Executive raised the following potential breaches of the PhonepayPlus Code of Practice (12th Edition) (the “Code”):
- Rule 2.4.2 – Consent to market
- Rule 2.3.1 – Fair and equitable treatment
- Rule 2.2.1(a) – Provision of information regarding the identity of the Level 2 provider
- Paragraph 4.2.4 – Provision of false or misleading information
The Tribunal upheld all the breaches of the Code raised. The Level 2 provider’s revenue in relation to the Service was within the range of Band 3 (£100,000-£250,000). The Tribunal considered the case to be very serious and imposed a formal reprimand, a fine of £250,000, a prohibition on the Level 2 provider from providing, or having any involvement in, any premium rate service for a period of eight years (starting from the date of publication of this decision), or until payment of the outstanding fine and total administrative charges, whichever is the later; and a requirement that the Level 2 provider must refund all consumers who claim a refund, for the full amount spent by them on the Service, within 28 days of their claim, save where there is good cause to believe that such claims are not valid, and provide evidence to PhonepayPlus that such refunds have been made.