Starting Thursday, Rogers Communications Inc. has to yank its claim to the "most reliable" mobile phone network from all print, television and radio advertising after a British Columbia appeal court did not make a judgment on Wednesday afternoon in a fight between Telus Corp. and Rogers.
After launching a new network in November, Telus took Rogers to court over its long-advertised claim about the reliability of the Rogers Wireless network. Last Friday, Telus won at the B.C. Supreme Court, which ruled that Rogers must remove the claims of "most" reliable as of Dec. 3.
On Wednesday morning and afternoon, three justices at the B.C. Court of Appeal listened to arguments from both sides and the case ran past the usual 4 p.m. end-of-day mark. After about 15 minutes of deliberation as the sky darkened outside the downtown Vancouver courthouse, the justices returned to say they would not have an immediate decision.
Rogers began complying with the initial court order earlier this week when it removed the reliability claim from its website.
Other advertising venues such as billboards are also included but the first court order provided some leniency to make changes, with a deadline of Dec. 18 to fully comply.
The court ruling has been a bad blow for Rogers, which has to retool its advertising during the key holiday selling season for mobile phones. A win at the appeal court would save Rogers $3-million, the cost to suddenly pull back an advertising campaign budgeted at more than $10-million.
There was discussion on Wednesday at court of a stay of the earlier ruling, which would set aside the order for Rogers to pull the reliability claims while the appeal is weighed. Rogers argued in favour of a stay, Telus was against and the justices did not grant it.
The justices said they would produce a decision as quickly as possible.
Participants in the case suggested a ruling likely will be made by the end of the week.
Counsel for Rogers argued on Wednesday that the earlier decision was based on a too-narrow definition of reliability. The B.C. Supreme Court found that because Telus now has the same type of network as Rogers, Rogers couldn't say its network is more reliable. Counsel for Rogers at the appeal court said the company's experience operating the network, and history of reliability, and extensive testing, all were important factors behind its claim of "most" reliable.
Counsel for Telus argued that technical affidavits filed by Rogers did not definitively state the Rogers network was more reliable than the new Telus network.
Telus built its network in partnership with BCE Inc.'s Bell Mobility. After losing in court to Telus, Rogers filed suit in the same venue against Bell that it lost to Telus. The Rogers filing in B.C. Supreme Court questions Bell's claim that its new network is the "largest, fastest and most reliable" in Canada.