ACMA Investigation Report—Winstuffhere service advertised online, accessed on 29September 2009 (Jada Mobile Services)

Investigation Report

File No. / ACMA2010/1025-2
Content supplier / Jada Mobile Services Limited
Name of service / Winstuffhere
Type of service / Text & win trivia – subscription
Short code / 1977 7700
Relevant legislation/code / Telecommunications Act 1997
Mobile Premium Services Code

Investigation conclusions

The Australian Communications and Media Authority (ACMA) is satisfied, having considered the information before it, that Jada Mobile Services Limited (the content supplier), which is a participant in the telecommunications industry:

  1. Supplied a mobile premium service prior to informing the customer of all charges that may be incurred for the supply of the service (clause 4.1.3(c));
  1. Supplied a mobile premium service prior to informing the customer of its name and contact details (clause 4.1.3(i));
  1. Did not ensure that a customer could access pricing information about a mobile premium service without requesting supply of that service (clause 4.1.5(b));
  1. Did not include the basis for calculating charges in the subscription request message it sent to the customer (clause 4.4.2(d));
  1. Did not include the basis for calculating charges in the subscription confirmation message it sent to the customer (clause 4.4.3(a)(iii)(D));
  1. Did not include sufficient information to enable the customer to identify and contact the content supplier in all messages sent as part of the service (clause 4.4.9); and
  1. Charged mobile content fees for a ‘STOP’ message (clause 7.1.3(a)(ii)).

The ACMA therefore finds that the content supplier breached clauses 4.1.3(c), 4.1.3(i), 4.1.5(b), 4.4.2(d), 4.4.3(a)(iii)(D), 4.4.9 and 7.1.3(a)(ii) of the Mobile Premium Services Industry Code C637:2009 (MPS Code), being an industry code registered under Part 6 of the Telecommunications Act 1997 (the Act) and which applies to participants in that section of the industry.

Background

  1. The ACMA has obtained a copy of an advertisement for a mobile premium service titled ‘Winstuffhere’ (the Advertisement).
  2. The ACMA contacted the content supplier on 27 November 2009 to discuss areas of potential non-compliance. Further information was sought from the content supplier on 16March 2010.
  3. On 3 December 2009 and 21 April 2010 the content supplier provided responses to the ACMA’s initial queries.
  4. On 13 May 2010, the ACMA commenced an investigation under paragraph 510(1)(c) of the Act into whether the content supplierhad contravened the MPS Code.
  5. A report containing preliminary investigation findings was sent to the content supplier on 12 August 2010.
  6. On 27 August 2010 the content supplier provided its response to the preliminary findings.

The service and advertisement

  1. On 29 September 2009, the ACMA located an advertisement for the mobile premium service ‘Winstuffhere’ at the URL: a=365&s=subid&z=1eaafc98024ad3bab495d22c95675. Screenshots of the advertisement accessed on that date are at Appendix 1.
  2. The advertisement states that the service is a subscription service. The service provides customers with trivia questions which the customer needs to answer correctly to win prizes, using SMS messages to and from the Short Code, 1977 7700 (the Service).
  3. Before accessing the service a customer completes an online quiz by answering questions on a number of different pages before entering their mobile number online at the final page.
  4. Communications Alliance Ltd maintains a Short Code Look-up Database accessed via This database lists all the short codes each content supplier uses to provide premium SMS/MMS services, the name of the service, the time period of operation of the service, the content supplier’s name, the content supplier’s helpline, a contact email and a description of the services. The Short Code Look-up Database records the content supplier of the service operating premium number 1977 7700 as Jada Mobile Services Limited.
  5. The ACMA is satisfied that the service is a ‘Mobile Premium Service’ within the meaning of the MPS Code and specifically, that the service is a ‘Premium Messaging Subscription Service’.

Assessment

  1. The material relied on for assessment was:
  • the advertisement displayed after accessing the URL: me/index.php?a=365&s=subid&z=1eaafc98024ad3bab495d22c95675 (accessed on 29 September 2009);
  • testing of the service between 29 September and 2 October 2009 and on 15 June 2010;
  • statement of charges for premium SMS provided by a mobile carriage service provider;
  • details from the 19SMS service finder maintained by Communications Alliance Ltd;
  • submissions made by the content supplier.

Relevant provisions of the MPS Code

  1. The relevant provisions of the MPS Code are listed below.

Clauses 4.1.3(c) and 4.1.3(i)

Charges, terms and conditions: Prior to:

(a)Supplying a Mobile Premium Service to a Customer; or

(b)Renewing a Subscription Service,

A Content Supplier must clearly inform the Customer of:

(c)Charges: all charges that may be incurred for its supply

…

(i)Contact: the name and contact details of the relevant Content Supplier of any Subscription Service.

Clause 4.1.5(b)

Pricing information: A Content Supplier must ensure that a Customer can access pricing information about Mobile Premium Services, including:

…

(b)The basis for calculating charges, including any:

(i)Charge per MO Message;

(ii)Charges per MT Message; or

(iii)Charge per Charge Period, and that Charge Period,

Without requesting supply of the Mobile Premium Service.

Clause 4.4.2(d)

Content of subscription request message: The subscription request message referred to in clause 4.4.1(e) must:

…

(d)Include the basis for calculating charges, including any:

(i)Charge per MO Message;

(ii)Charge per MT Message; or

(iii)Charge per Charge Period, and that Charge Period…

Clause 4.4.3(a)(iii)(D)

Subscription confirmation messages: Following:

(a)Receipt of an MO Message sent by a Customer in response to the instruction described in clause 4.4.2(e), but prior to supplying the requested Premium Messaging Subscription Service to the Customer, a Content Supplier must send the Customer a standard, dedicated SMS subscription confirmation message, at no charge to the Customer, which must, at the start of the message:

…

(iii)Include:

…

D. the basis for calculating charges, including any:

aa. Charge per MO Message;

bb. Charge per MT Message; or

cc. Charge per Charge Period, and that Charge Period…

Clause 4.4.9

Message identification: All messages sent by a Content Supplier as part of a Premium Messaging Subscription Service must contain sufficient information to enable the Customer who receives it to identify and contact the Content Supplier.

Clause 7.1.3

Unsubscribe fees: A Content Supplier:

(a)Must not charge any Mobile Content Fees for:

(i)Processing a request to unsubscribe from a Subscription Service; or

(ii)Any “STOP” Message; and

(b)Is not taken to have charged a Mobile Content Fee for the purposes of clause 7.1.3(a) if the Subscription Service was a Premium SMS or MMS Service and:

(i)The request to unsubscribe can be issued without using a Premium SMS or MMS Service, and the Mobile Content Fee is not more than the usual cost of communicating in the same way as was used to issue the request to unsubscribe; or

(ii)In any other case – a refund is given to the Customer to reimburse the Customer for any cost above the usual cost of communicating in the same way.

Reasons for the decision

Provision of information on charges (clauses 4.1.3(c), 4.1.5(b), 4.4.2(d) and 4.4.3(a)(iii)(D) of the MPS Code)

  1. As mentioned at paragraph 9, before the customer requests supply of the service they are taken through a number of different web site pages while completing an online quiz. The final page of the quiz provides information about the service and states that it is a subscription service.
  2. The ACMA tested the service between 29 September and 2 October 2009. A log of the messages received and sent during this test is reproduced at Appendix 2. The ACMA subsequently re-tested the service on 15 June 2010 and a log of messages sent and received during that test is reproduced at Appendix 3.
  3. The advertisement states the cost of the service is ‘$5.00 (plus standard SMS rates)/message and 2 messages per week’. Messages 3 and 7 in the log at Appendix 2, received prior to supply of the service, state ‘Cost: $5/msg, 2msg/wk’. The service was tested over a four day period and the cost at the time of testing was $5.00 each for two messages received plus 35 cents for messages sent.
  4. Clause 4.1.3(c) requires the content supplier to inform a customer of all charges prior to supplying the service. Clause 4.1.5 requires the content supplier to ensure the customer can access pricing information, including the basis for calculating charges without requesting supply of the service.
  5. Clauses 4.4.2(d) and 4.4.3(a) require the content supplier to include the basis for calculating charges in both the subscription request message and the subscription confirmation message sent to the customer.
  6. The advertisement did not inform the customer that they will be charged 35 cents per message sent. Therefore, the customer was not informed of, or able to access, pricing information prior to accessing the service.
  7. Messages number 3 and 7 in appendix 2 are the subscription request and subscription confirmation messages respectively. Neither message includes detail about the 35 cent charge.
  8. In submissions to the ACMA, the content supplier statedthat the messages were charged at the ‘standard rate’ and that it was not necessary to include this pricing information in messages received by the customer as those charges were collected by the operators.
  9. The fees charged for messages sent during the testing of the service were not included in any of the pricing information available to customers. Clauses 4.1.3(c), 4.1.5, 4.4.2(d) and 4.4.3(a) of the MPS Code do not provide an exemption from disclosing the fees on any basis, whether they are considered ‘standard’ or not.
  10. The ACMA is therefore satisfied that the content supplier breached clauses 4.1.3(c), 4.1.5, 4.4.2(d) and 4.4.3(a)(iii)(D) of the MPS Code.

Provisions of information – content supplier name and contact details (clause 4.1.3(i) of the MPS Code)

  1. As outlined at paragraph 10, the content supplier is Jada Mobile Services Limited. The online registration process whereby a customer accesses this service, and the subscription request message (see message number 3 in appendix 2) received by the customer before supply of the service included the service name ‘winstuffhere’ but not the name of the content supplier.
  2. The content supplier submitted that ‘winstuffhere’ is ‘sub-branding’ and stated that ‘winstuffhere’ was the identity used to communicate with end users.
  3. Clause 4.1.3(i) requires customers to be informed of the name and contact details of the relevant content supplier. The Content Supplier is Jada Mobile Services and the MPS Code therefore requires that customers are clearly informed of this name and the corresponding contact details. The ACMA is therefore satisfied that the content supplier breached clause 4.1.3(i) of the MPS Code.

Message identification (clause 4.4.9 of the MPS Code)

  1. As seen in the log of messages sent and received during the ACMA test of this service during September and October 2009 (Appendix 2), messages number 8, 11, 13 and 15 sent by the content supplier contained only the content of the message and, in the case ofmessages number 8 and 11, the short code for the service. This is not considered to be sufficient information to enable a customer to identify and contact the content supplier.
  2. Messages number 5, 7 and 11 in the log of messages sent to the customer during the test of the service conducted on 15 June 2010 (Appendix 3) are of a similar nature.
  3. The content supplier submitted that due to character limitations in each message, the service name could not be included. However, this requirement of the MPS Code is not optional.The ACMA is therefore satisfied that the content supplier breached clause 4.4.9 of the MPS Code.

Unsubscribe fees (clause 7.1.3(a)(ii) of the MPS Code)

  1. During the initial registration for this service the customer is advised that the service can be terminated by sending ‘a text ‘STOP’ to 1977 7700’. The website also includes an email address and helpline for a customer to use if they have questions. Although not promoted as providing this option, it is possible that a customer could also unsubscribe from the service by using the email address or helpline.
  2. The MPS Code provides that a content supplier can charge a mobile content fee for a STOP message under certain conditions and only if there are other options available for the customer to unsubscribe from the service.
  3. One of the conditions stated in the MPS Code is that the mobile content fee charged by the content supplier cannot be more than the usual cost of communicating in the way that was used to request to be unsubscribed. The MPS Code also provides that the content supplier can refund the amount charged for the STOP message which was above the usual cost of communicating in this way.
  4. The ACMA test was conducted using a Telstra pre-paid SIM card. Information available on the Telstra website states the cost of an SMS sent to any network is 25 cents. Therefore, in this case the ‘usual cost’ of communicating via SMS was 25 cents.
  5. In its submission of 27 August 2010, the content supplier stated that the charge was a ‘standard SMS rate’. The log of messages sent and received during the ACMA test of the service shows that a charge of 35 cents was incurred when the ‘stop’ message was sent to unsubscribe from the service (see message number 19 at Appendix 2).
  6. The content supplier has not provided or offered any refund of the 10 cents difference between the 35 cents charged and the 25 cents standard SMS charge.
  7. The ACMA is therefore satisfied that the content supplier breached clause 7.1.3(a)(ii) of the MPS Code.

Appendix 1

Below are screen shots of the front page and final page of the IQ test a customer completes before registering for the Service.

Appendix 2

Below is a log of the messages received from and sent to the service during the ACMA test between 29 September and 2 October 2009.

Message No. / Mobile Originated Message / Mobile Terminated Message / Time / Cost
1 / ‘FreeMsg. It indicates U wish to subscribe to Winstuffhere. Reply OK to 19777700. Help:1800269819/ Cost: $5/msg, 2msg/wk’ / 29/09/09
11:47AM
2 / ‘Ok’
(reply to above) / 29/09/09
11:48AM / $0.25
3 / ‘FreeMsg. It indicates U wish to subscribe to Winstuffhere. Reply OK to 19777700. Help:1800269819/ Cost: $5/msg, 2msg/wk’ / 29/09/09
11:49AM
4 / ‘Ok’
(new message) / 29/09/09
11:50AM / $0.25
$0.35
5 / ‘$Msg. Signup completed. Login at
Mobile number: 61 427478673
PIN: 9579.
Txt SCORE to check score
Help: 1800269819 / 29/09/09
11:51AM / $5.00
6 / ‘$Msg.Ur now registered at Winstuffhere and compete in the iPod Club. Help: 1800269819. Cost: $5/msg, 2msg/wk. To stop: txt STOP IT to 19777700’ / 29/09/09
11:51AM / $5.00
7 / ‘FreeMsg. Thanks for subscribing to Winstuffhere. Help:1800269819/ Cost: $5/msg, 2msg/wk To stop: txt STOP IT to 19777700. / 29/09/09
11:51AM
8 / ‘FreeMsg What letter is on the right of a B on a keyboard? 1A: V, 1B: M, 1C: N. Txt 1A, 1B or 1C to 19777700’ / 29/09/09
11:51AM
9 / ‘1c’
(reply to old) / 29/09/09
11:55AM / $0.25
10 / ‘1c’
(new message) / 29/09/09
15:39PM / $0.35
11 / ‘FreeMsg: Correct!
Accuracy: 1/1 100%
Campaign IT’ / 29/09/09
15:39PM
12 / ‘FreeReminder. U are subscribed to Winstuffhere.
Help: 1800269819
Cost: $5/msg. 2msg/wk
To stop: SMS STOP to 19777700’ / 30/09/09
16:05PM
13 / ‘FreeMsg Which country features a maple leaf on its flag? 1A: Greenland, 1B: Canada or 1C: Macedonia. Txt 1A, 1B or 1C to 19777700’ / 30/09/09
16:05PM
14 / ‘1b’ / 30/09/09
17:49PM / $0.35
15 / ‘FreeMsg. Correct! Accuracy: 2/2 100%
Campaign IT’ / 30/09/09
17:49PM
16 / ‘Cbhe?39’
(Reply to prev) / 02/10/09
9:19AM / $0.25
17 / ‘Cbhe?39’
(new message) / 02/10/09
9:25AM / $0.35
18 / ‘FreeMsg. Sorry, ur command is not recognized.
Help: /1800269819’ / 02/10/09
9:26AM
19 / ‘Please stop these messages’
(new message) / 02/10/09
9:27AM / $0.35
20 / ‘FreeMsg. U are now unsubscribed to Winstuffhere. No message will be received unless you attempt our service again.
Help: /1800269819’ / 02/10/09
9:27AM

Appendix 3

Below is a log of the messages received from and sent to the service during the ACMA test on 15 June 2010.

Message No. / MO Message / MT Message / Date / time / Cost
1. / Mobile number entered online / 15/06/10
Approx. 11.55am / -
2. / ‘FreeMsg. It indicates U wish to subscribe to Winstuffhere. Reply OK to 19777700. Help:1800269819/ Cost: $5/msg, 3msg/wk’ / 11.58am / -
3. / ‘ok’ / 11.58am / 25c
4. / ‘FreeMsg.Thx 4 subscribing to Jada Mobile Services’ Winstuffhere. Help:1800269819/ $5/msg,3msg/wk To stop: SMS STOP IP to 19777700’ / 11.58am / -
5. / ‘FreeMsg In what country was the movie monster Godzilla created? 4A: Japan, 4B: USA, 4C: England. Txt 4A, 4B or 4C to 19777700’ / 11.58am / -
6. / ‘4b’ / 12.00pm / 25c
7. / ‘FreeMsg. Sorry, incorrect! Accuracy: 0/1 0% Campaign IP’ / 12.00pm / -
8. / ‘$Msg. Ur now registered at Winstuffhere and compete in iPhone Club. Help 100269819. Cost: $5/msg, 3msg/wk. To stop:SMS STOP IP to 19777700’ / 12.03pm / $5.00
9. / ‘$Msg. Thx for joining iPhone Club at Winstuffhere. Ur registration is in process. Help 100269819. Cost: $5/msg, 3msg/wk. To stop: SMS STOP IP to 19777700’ / 12.03pm / $5.00
10. / ‘$Msg. Signup completed. Login at Mobile number: 61 439830447 PIN: 8827. Txt SCORE to check score Help:1800269819’ / 12.03pm / $5.00
11. / ‘FreeMsg In what country was the movie monster Godzilla created? 4A: Japan, 4B: USA, 4C: England. Txt 4A, 4B or 4C to 19777700’ / 12.09pm / -
12. / ‘Xpe3-x’ / New message created to short code – all other MO messages were sent as a reply to an MT message / 3.01pm / 25c
13. / ‘FreeMsg. Sorry, ur command is not recognized. Help:/1800269819’ / 3.02pm / -
14. / ‘Please stop these messages’ / 3.03pm / 25c
15. / ‘FreeMsg. U are now unsubscribed to Winstuffhere. No message will be received unless you attempt our service again. Help:/1800269819’ / 3.04pm / -

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