Legality

We are not Lawyers

This page and indeed this site contains personally expressed views as to what may or may not be done about the AUP, whether NTL can actually enforce the cap, and what rights the customer may legally have.

It must be remembered that, for all things legal, the ultimate decider of any issue is a court. This requires a party to issue proceedings against another. However soundly made, a case for or against a legal opinion is just that; an opinion until tested in court.

Since the views expressed are made informally, by those without legal training, you are advised not to rely on any statements made, without having first satisfied yourself that they are reasonable. Neither the owners, administrators, moderators nor users of this site can accept any responsibility or liability to any person acting in reliance of the posts made.

Of course, if you are a legal bod, and want to have your say, and admit to your training, you will be welcomed with open arms!

Initial Thoughts

"Q. Why do you advertise an 'unlimited' service, and yet now seek to limit its use?

A. Our unmetered dial-up Internet service has the trade name 'Unlimited', because you can use it whenever you like for a single flat fee. There is no daily download limit on our dial-up Internet products ..... Our broadband service is no longer called unlimited."

"Unlimited \Un*lim"it*ed\, a.

1. Not limited; having no bounds; boundless; as, an unlimited expanse of ocean.

2. Undefined; indefinite; not bounded by proper exceptions; as, unlimited terms. ``Nothing doth more prevail than unlimited generalities.'' --Hooker.

3. Unconfined; not restrained; unrestricted."

ntl's broadband service was always described as 'unlimited' The advertising said 'unlimited' and ntl have even sent out flyers since the changes in the AUP that still claim the service still is 'unlimited'. We believe that customers who signed up on this basis might have had their terms and conditions changed significantly and might therefore be entitled to walk away from the contract.

"Our broadband service has always carried an Acceptable Use Policy.”

ntl are still advertising broadband as '24/7' and 'always on' suggesting in our opinion that users may download all day. Usage limits are difficult to find in current advertising. The user has to actively hunt for the information.

It's also probably worth noting that section 27 of ntl's Terms and Conditions says:

"we reserve the right to change the terms and conditions of this Agreement and/or the Services which we provide to you as soon as is reasonably practicable by giving written notice to you prior to the changes being introduced referring to this Condition. We will also publish details of any changes (including the operative date) in each of our main offices and on our web-site as soon as possible prior to the changes being introduced”

1) In their own Terms and conditions NTL state:

26. Changing the Terms and Conditions
Where any of the following occurs:
(iii) in all other events, where we reasonably determine that any technical modification to the ntl Network or change in our trading, operating or business practices or policy is necessary to maintain or improve the Services which we provide to you.

However to determine if the 1 Gb cap is a degradation, one must look at the ability to use the service.

150 Kbps users can barely download 1 Gb a day at max speed. Therefore there is little degradation for them.

600kps users could suffer as they could exceed the limit in 5 or 6 hours. But would they? We anticipate that it will be a case of looking at how the connection has been used in the past, together with the implications of marketing of an Unlimited Service, and whether it remains "Fit for purpose"

1 Mbps users in the majority probably want not only a fast speed of data transfer but will also be the heaviest download users. The limit potentially affects them after just 2.5 - 3 hours for a previously always on, cap free, service. Are they thus the most likely to be able to easily argue the degradation is unfair and unreasonable?

Additionally, there is no reference to any upload or download capacity in the terms and conditions. The only reference to data capacity is a reference to web space to which you are then referred to the AUP. Is it unreasonable therefore, to impose a data transfer cap through the AUP, which is an official guidance document to aid interpretation of the T&Cs, not the actual contract which is the T&Cs?

The Unfair Terms in Consumer Contracts Regulations 1999

SCHEDULE 2
Regulation 5(5)

INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR

1. Terms which have the object or effect of:

(a) excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier;

(b) inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any of the contractual obligations, including the option of offsetting a debt owed to the seller or supplier against any claim which the consumer may have against him;

(c) making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone;

(d) permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the contract;

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

(f) authorising the seller or supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the seller or supplier to retain the sums paid for services not yet supplied by him where it is the seller or supplier himself who dissolves the contract;

(g) enabling the seller or supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so;

(h) automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express his desire not to extend the contract is unreasonably early;

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

(k) enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided;

(l) providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded;

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract;

(n) limiting the seller's or supplier's obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality;

(o) obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his;

(p) giving the seller or supplier the possibility of transferring his rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the latter's agreement;

(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.