As I noted a few weeks ago after the Apple announcement, the new iPad (aka iPad 3, iPad HD) does not work with the WiMAX, nor does it work with LTE on the only frequency LTE is currently deployed on in Australia (1800MHz, or 1.8GHz if you prefer) by Telstra.
It is quite disappointing that Apple are letting AT&Ts assertions that non-LTE networks have “4G Speeds” that draws grumbles and teeth grinding in the USA, however in other parts of the world where false advertising is taken seriously, Apple have now found themselves in rather warm water. (Perhaps not Hot Water, just yet…)
The Australian Competition and Consumer Commission (ACCC) has sought orders against Apple by filing an application with the Melbourne Federal Court on the 28th of March, 2012. In it they claim that Apple has contravened “…sections 18, 29(1)(a), 29(1)(g) and 33 of the ACL…” which stands for the Australian Consumer Law.
Every Australian knows what the ACCC is and what they do, but for those that don’t, read this from their website. In short, they police and enforce the old Trade Practices Act (recently renamed to the Competition and Consumer Act) to ensure businesses operate as fairly as possible with consumers (Okay, so that’s a big simplification but that’s the gist of it) on behalf of the consumers of Australia.
The sections they call out in the ACL are linked above but are reproduced here for your convenience:
- 18: Misleading or deceptive conduct: (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
- 29: False or misleading representations about goods or services: (1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: (a) make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or (g) make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits.
- 33: Misleading conduct as to the nature etc. of goods: A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods. Note: A pecuniary penalty may be imposed for a contravention of this section.
So what DID Apple do to set this off? Their Australian Website on the 22nd of March, 2012 read like this (cached) (thanks to Google for caching it) and in PDF in case the cache disappears.
Let’s take stock now: Apple was originally advertising the new iPad as having a 4G version. The ACCC points out that the technical definition of a 4G network only fits networks in Australia that the new iPad can not connect to. Hence saying 4G capable is false advertising. It’s that simple. The problem is that technically savvy people like me and likely you (the reader) know enough to figure out that the new iPad doesn’t support Telstras 4G LTE network here in Australia. The problem the ACCC has is that most people, well, don’t know that. It’s as clear cut as it gets. Or is it?
Looking at what qualifies as 4G technically is, unfortunately, a bit fuzzy. Reading this ITU release from December 2010 is depressing to an engineer like me who likes boundaries and specificity. In particular, this very long sentence irks me: “…IMT-Advanced is considered as ‘4G’, although it is recognized that this term, while undefined, may also be applied to the forerunners of these technologies, LTE and WiMax, and to other evolved 3G technologies providing a substantial level of improvement in performance and capabilities with respect to the initial third generation systems now deployed.”
Translation: The ITU says that even though LTE and WiMax don’t technically meet the 4G requirements for speed, they’ll accept them because they’re close enough and hey, what the heck , let’s just say anything that’s faster than “initial 3G networks” that are in use already can call itself 4G.
The reality is that there is really only one requirement that anyone cares about in the 3G/4G argument and that is speed. The only carrier in Australia with a relatively well rolled out LTE 4G network is Telstra (just for you Dan, it used to be called Telecom Australia, they shortened it to Tel..stra… in the 80s) and on their website they tout Next G 3G as delivering 1.1Mbps to 20Mbps and their 4G LTE “Next G” as 2Mbps to 40Mbps. Clearly 4G is faster than 3G but the new iPad will not work at 4G speeds on Australian networks by Telstras own descriptions.
(Side note: Yes, I know that dual channel HSPA+ yields a peak of 42Mbps but those speeds are never realised in real-world scenarios okay? That plus Telstra makes no such claims for their devices either. Good now? Thanks)
Apple responded with this at the preliminary hearing. For what they’ve done already, taking a quick look at their website we see the original page (refer above links) looks a lot like the current US page (okay, no surprises there). Now take the current US URL and enter this URL: http://www.apple.com/au/ipad/4g/ to reach the Australian page as it currently stands. It redirects to this page with this URL: http://www.apple.com/au/ipad/ultrafast-wireless/.
So Apple not only removed all mention of 4G from the page, but also redirected the URL to one containing “ultrafast -wireless” instead. I’d call that pretty thorough and decisive. In addition they have offered refunds for any customers who believe they were mislead and will have signage at their stores informing customers that the device does not work on Australian 4G networks.
Where does that leave the court case then? Apple will argue that Telstra’s Next G 3G network approaches 4G speeds based on the ITU definition, however will very likely lose considering the local market does not recognise the Next G 3G network as a 4G network in any way. Whether that is technically correct or not (thanks to the ITU for screwing us all over with vague definitions of what 4G really is) it is unlikely Apple will escape unscathed.
There’s more to this saga coming in a few weeks when the trial goes ahead and Apple faces up to $1.1M AUD fines per contravention so this is big money and serious stuff. Make no mistake, the coin has flipped for Apple: once the underdog is now the biggest company (by some measures) in the world and is quickly become the focal point for angry consumers wanting to take their own bite out of Apple for something, anything.