Ad description
The results of a mobile phone coverage checker, found on the website www.ee.co.uk. The results displayed when the complainant entered his postcode stated that the "UK MOBILE COVERAGE" for "3G CALLS AND INTERNET" was "EXCELLENT". Text stated "Fast, Reliable internet access and high quality calling. Available on 4GEE, Orange and T-Mobile plans". Text below the map also shown stated "This map is only a guide and not a guarantee of service availability in a particular location. It shows outdoor coverage only and may include locations where mobile devices don't work. As with all radio-based systems, service may be affected by a number of local factors, such as building materials, tree cover and weather conditions …".
Issue
The complainant challenged whether the claim that 3G coverage for his postcode was "EXCELLENT" was misleading and could be substantiated, because he had no mobile phone signal at home and a poor signal outside.
Response
T-Mobile said that when consumers clicked on the coverage checker results they were given further details, including that the phone should work outdoors and in most houses and commercial buildings. They said the structure and design of the coverage checker had been updated on 24 July 2013 and they were willing to make further amendments if it was considered necessary.
T-Mobile said the complainant, who had a pay monthly contract, was previously a pay-as-you-go customer. They said their internal records showed there had not been any problems with the coverage at his postcode, which had remained the same since 2011. The coverage checker was updated weekly for 4G and every two weeks for 2G and 3G services. They pointed out text under the map of coverage stated "This map is only a guide and not a guarantee of service availability in a particular location. It shows outdoor coverage only and may include locations where mobile devices don't work. As with all radio-based systems, service may be affected by a number of local factors, such as building materials, tree cover and weather conditions …", which made clear that coverage could not be guaranteed and that factors outside of T-Mobile's control could affect coverage. They said coverage was greatly affected by the device consumers had, because the way a device used the signal varied between manufacturers and models. T-Mobile said the qualifying text related to the map only and that the coverage checker results included both indoor and outdoor coverage.
The coverage checker was intended to give an indication of the coverage consumers might be able to expect, but no operator could guarantee coverage in any particular location, given the nature of the services. Nevertheless, T-Mobile offered customers the opportunity to return their device for a full refund within 14 days of purchase if they experienced any problems with coverage in any of the three locations in which they were most likely to use the phone. While the complainant did not do so, he had also recently been offered the chance to end his contract without penalty. However, the complainant had declined.
T-Mobile said that, having received the complaint, they had sent engineers to the postcode and surrounding areas to conduct network testing in order to verify that the coverage was excellent. They provided details of the testing they had carried out as well as of the threshold they applied to determine whether coverage was excellent. They said the testing showed that coverage in the complainant's postcode was generally excellent, while one very small area had coverage that was less strong. They said that area formed an insignificant proportion of the postcode (less than 2%) and it would therefore not be useful to consumers if the checker described the coverage in the whole postcode as poor. Some areas of the postcode received outstanding coverage and the range of measurements was such that, as a whole, it was categorised as having excellent coverage.
T-Mobile said Ofcom regularly reviewed providers' approach to coverage checkers. In 2011 Ofcom had carried out a thorough investigation and noted that there was no 'right way' to assess coverage. However, they were of the view that the models used to do so were generally accurate and that coverage checkers were generally useful for consumers. T-Mobile said Ofcom accepted that there were differences in the way providers predicted coverage, but considered it would not be proportionate to harmonise the approaches used at that stage. Ofcom were also encouraged by the returns policies offered.
T-Mobile acknowledged the complainant had received poor coverage, but said that might be as a result of the device, the structure of his home, or of living in the very small area of the postcode that received poor coverage. They believed the ad, which it was made clear was intended only as a guide, was not misleading. They also emphasised that consumers could obtain a refund if the coverage was not as expected.
Assessment
Upheld
The ASA noted that T-Mobile were willing to make amendments to their advertising. We also noted the evidence they submitted, which consisted of 'drive' testing carried out on the roads in the complainant's postcode after the complaint was received. However, while we understood the claim that the complainant's postcode received excellent coverage continued to appear (albeit now in a different format), we were concerned that data produced at a later date did not provide evidence of the coverage levels in the area at the time the complainant saw the claim.
Nevertheless, we noted the claims that appeared under the "coverage results" were presented in language that was not conditional and considered the overall impression of the ad was such that it was likely to be understood to mean that "Fast, Reliable internet access and high quality calling" was "Available on 4GEE, Orange and T-Mobile plans" to consumers in the relevant postcode. We also considered consumers were likely to understand the ad to mean that T-Mobile offered "EXCELLENT" coverage in the postcode.
We acknowledged the qualification that appeared below the map, which we understood related to the map only, stated that it related to outdoor coverage only and that it was intended only as a guide due to the range of factors that affected coverage. However, for the reasons given, we considered the ad did not make sufficiently clear that the claims that appeared under the "coverage results" were intended as a guide and that coverage could be affected by a range of factors. We therefore concluded that the ad breached the Code.
The ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
Action
The ad must not appear again in its current form. We told T-Mobile to ensure their future advertising made immediately clear the conditional nature of coverage checker results.
