Chatr ‘fewer dropped calls’ ads not misleading, court says

News | THE WIRE REPORT Published: Tuesday, 08/20/2013 5:24 pm EDT

Rogers Communications Inc.’s advertising campaign that claimed its wireless brand had “fewer dropped calls” than its new entrant competitors was not misleading, said the Ontario court judge who heard the Competition Bureau’s $10-million case against the company.

In a judgment released Monday, Ontario Superior Court Justice Frank Marrocco said “drive tests” Rogers conducted in advance of the 2010 ad campaign sufficiently proved that Rogers’ network dropped fewer calls than networks belonging to ’s new entrant carriers, who had recently launched their own wireless services.

“I am satisfied that the Rogers drive testing in fact adequately and properly tested the fewer dropped calls claim made subsequent to that drive testing,” Marrocco said in a 78- page decision. “I do not accept the applicant’s submission that the Rogers drive testing results support a finding that the fewer dropped calls claim is either false or misleading.”

The federal Competition Bureau in 2010 launched a lawsuit against Rogers, seeking a $10-million fine for “misleading advertising” that ran in the summer and fall of 2010, in which Rogers’ discount brand Chatr advertised that it had “fewer dropped calls” than new wireless entrants Wind Mobile, Inc., Videotron Ltd. and . The Competition Bureau argued in its November 2010 application that Rogers did not first conduct “adequate and proper” testing to prove the advertising was true, and that Chatr’s follow-up ads about customers having “no worries” about dropped calls were also misleading.

In his decision, Marrocco said it would be “dangerous” for the court to place “significant weight” on “switch data” the bureau collected from each of the carriers, which the bureau said provided a direct comparison of the providers’ actual dropped call rates. That data— which uses network infrastructure to record how often those networks drop calls— contained too many variables to provide a direct comparison of network performance, he said.

Rogers’ drive testing—in which the company tested its own devices and those from the new entrants while driving through a network’s footprint—“is used all over the world to compare network performance,” Marrocco said, adding it provides a better comparison. “Because the applicant’s assertion that the fewer dropped calls claim is false is based to a significant degree upon switch generated data, I am not satisfied that the applicant has proven on a balance of probabilities that the respondents’ fewer dropped calls claim was false,” the decision said in specific reference to the bureau’s claim that new entrant Wind Mobile’s network did not record more dropped calls than Rogers during a four-month period in 2010.

Marrocco said subsequent Rogers testing demonstrated that its Chatr brand had lower dropped call rates than Wind and Public Mobile in both indoor and outdoor environments in the late summer and early fall of 2010.

He rejected the competition bureau’s argument that the Chatr ads were misleading unless there was a “discernible difference” in the companies’ dropped call rates.

“This is not a case where an indiscernible difference means that the services are indistinguishable,” he said, noting that it is reasonable to believe that a consumer would choose a mobile provider that offered fewer dropped calls.

Monday’s decision did not vindicate Rogers entirely, as the court found the company did not complete drive tests in the and markets before making its