ACCC v Superfone Pty Ltd  FCA 278: Penalties For Misleading Communications, Cold Calls
In ACCC v Superfone Pty Ltd  FCA 278 (26 March 2021), telecommunications provider Superfone (“Superfone”) has been ordered to pay a $300,000 penalty for making “false and misleading representations and breaching laws designed to protect consumers from unsolicited telemarketing sales, in proceedings which were brought by the ACCC” by the Federal Court of Australia (“the Court”).
The Court’s decision was focused on the actions taken by telemarketing companies acting on behalf of Superfone, including cold-calling consumers between June 2017 and December 2018, when the telco reseller offered discounted plans on their existing network if prospective customers signed up to a new contract through Superfone.
In June 2020, the Court declared that Superfone had contravened the Australian Consumer Law (contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth)) by “making unsolicited consumer agreements”.
According to an ACCC, in December 2019 the ACCC instituted proceedings in the Court against Superfone after complaints were made by consumers that the company had transferred their services without their informed consent.
According to the media release, more than 1,400 consumers (including many elderly people), were contacted by Superfone’s telemarketing agents. Murphy J said at [para 70] of the judgment:
Comment from the ACCC
ACCC Deputy Chair, Delia Rickard said in the Media Release:
The company admitted liability, but contested the penalty amount and other orders – see [para 36] of the judgment:
Commenting on the unsolicited phone calls, Murphy J said at [para 4]:
His Honour also noted Superfone’s remorse at [para 84]:
As well as imposing the penalty, the Court also ordered Superfone to email consumers who entered into an unsolicited agreement with them (and subsequently paid a termination fee on cancellation of their contract) advising them to contact Superfone for a full refund of the termination fee.
The company is also required to email other consumers whose unsolicited agreement have expired but who are continuing to receive services from Superfone on a month-to-month rolling basis, offering them the opportunity to exit their contract with Superfone without charge.
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Australian Competition and Consumer Commission v Superfone Pty Ltd  FCA 278 (26 March 2021)