INTERESTING DECISION OF THE REGIONAL ADMINISTRATIVE TRIBUNAL FOR LATIUM ON UNFAIR COMMERCIAL PRACTICES IN THE FIELD OF TELEVISION SERVICES.
With recent decision of 22 March 2017, the Regional Administrative Tribunal for Latium had to consider the petition filed by Sky Italy for the annulment of the measure adopted by the Competition and Market Authority (AGCM) in its meeting of 23 December 2008. The Tribunal upheld the decision taken by AGCM and ordered Sky Italy to pay an administrative penalty of € 200,000.00 for unfair business practices concerning the conclusion of contracts by telephone.
Following complaints lodged by consumers, in early 2008, the ACGM started a preliminary investigation against Sky Italy aimed at verifying the integration of alleged unfair business practices, concerning the activation of television services through the conclusion of distance contracts (in particular, by telephone). The disputed measure condemned the conduct of the applicant on two counts, subject to separate analysis: i) the activation of additional services not consciously required by the nominee subscription, on the one hand, and ii) the activation of subscriptions, services and additional premium services with differing characteristics from those promised, on the other.
In the first case, the decision of the AGCM was confirmed by Regional Administrative Tribunal for Latium, which assessed that there was sufficient evidence to show that the call center operators of the applicant did not provide to the users – to whom the subscription of new offers was proposed – suitable and adequate information to enable them to understand that the purchase would have been finalized following the provision of the single telephone consent, and not as a result of the signing of documents sent later to their home. In addition, it was found that very often the enabling of the offers was subject to consent by people other than the subscription holder (i.e. cohabiting delegates in possession of information about the customer’s position) and that were not carried out further checks about the willingness of the real owner to subscribe the promotions. The commercial practice in question was therefore deemed, under this first aspect, aggressive and therefore prohibited.
In the second case, with reference to the extension of subscriptions, additional services and premium services with differing characteristics than those promised, the conduct of Sky Italy has been qualified as misleading, given that the differences mainly related to the actual cost of the offers and in particular the lack of indication of the activation costs and a clear illustration of conditions and time limits for receiving the service. In particular, the Regional Administrative Tribunal pointed out how it should be recognized that there was an inherent weakness of the consumer with regard to the counterparty, due to the simultaneous physical distance of the contracting parties, which makes particularly significant the burden of providing clear and exhaustive information regarding the immediate purchase of the package and the content of the services offered.