The Wireless Application Service Providers` Association (WASPA) has upheld Integrat`s appeal in respect of Peach Mobile`s bundling of subscription services and content.
The appeal committee says while Integrat contravened the code of conduct relating to the original complaint, the adjudicator`s review lacked core elements of procedural fairness. As a result, the appeal committee rescinded the R50 000 fine imposed on Integrat.
The appeal stems from a complaint lodged by Gavin Penkin, Exactmobile`s director of portal and entertainment, against a print advertisement for the services of Peach Mobile, which encouraged consumers to send an SMS to Integrat enabling them to receive content on their mobile phones.
In his complaint to WASPA, Penkin claimed that Integrat and Peach Mobile contravened the association`s code of conduct, which states that a request to join a subscription service must be an independent transaction and may not be bundled with content.
Penkin alleged that consumers were not made aware that by sending one SMS they were, in fact, subscribing to a service for which they would pay subscription fees.
Breaching the code
The WASPA adjudicator found in September that the advertisement constituted breaches of the code of conduct, which were material and could not be remedied by the withdrawal of the advertisement.
All other points of Integrat`s appeal were rejected by the appeal committee, which included objections that the adjudicator had investigated aspects other than the contraventions listed in the complaint and that Integrat was not afforded an opportunity to respond to these additional contraventions.
In addition, the committee ruled that only the secretariat of WASPA may initiate a complaint against a member on behalf of WASPA, should it become aware of an apparent breach of the WASPA code of conduct.
Exactmobile has welcomed the ruling, saying the decision reaffirms that WASPs are responsible for the material from content providers and their advertising of that content, that content providers do not have to be part of WASPA and that rulings should be made public.
Held responsible
Commenting on the ruling, Norman Parkin, CEO of Integrat, stated that WASPA should implement measures that hold information providers responsible for their advertisements and content.
"Integrat`s appeal was upheld in terms of the Promotion of Administrative Justice Act 3 of 2002, according to which members of WASPA have the right to just and correct administrative action that is lawful, reasonable and procedurally fair.
"Procedural fairness includes, but is not limited to, adequate notice of the nature and purpose of the administrative action and a reasonable opportunity to make representations."
In a recent meeting with WASPA, Parkin stated, the association agreed to an additional membership category, namely "Associated Members". These information providers will now be held accountable for their content and advertising thereof, he added.
"Integrat suffered negative media coverage and unjust administrative action, but it was all worth it considering the current joint problem-solving actions of Integrat, WASPA and other aggregators.
"Integrat is happy to be in a position where it is involved in bringing about positive change in the mobile industry. Integrat was and always will be serious about service and the protection of the public against harmful content," Parkin said.
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