Ad description
The website www.productsandservices.bt.com/products/broadband/packages promoted BT broadband packages. The site included a table comparing BT's various broadband packages. For the "Unlimited Broadband" package, text under the heading "Speed" stated "Up to 16Mb download speed", and when a consumer rested the mouse over that claim additional text appeared which stated "'Up to' speeds are based on the technology used to deliver broadband to your home and are slower at peak times. The actual speed you'll get also depends on your location, phone line, home wiring and time of day. Up to 16Mb download speeds available if you live in a high speed area. Use our online speed checker to get your personalised broadband speed estimate before you order". In the column headed "Monthly usage limit" text stated "TOTALLY UNLIMITED USAGE" and the link "What's Totally Unlimited?" appeared below. Upon clicking on that link, a pop-up appeared and further text stated "Some Internet service providers put restrictions on certain types of Internet traffic, or limit how much you can download or upload which means at peak times of day, customers may experience slower speeds. We don't think that's good enough experience for BT customers so we have made all of our unlimited products 'Totally Unlimited'. 'Totally Unlimited" means that you will be able to enjoy catch-up TV, streamed files, online gaming and other bandwidth-eating applications and we'll never slow you down". The page also included a table which detailed the traffic management policies that other providers used.
Issue
Virgin Media Ltd challenged whether the claims "Unlimited Broadband" and "Totally Unlimited" when placed next to the maximum headline speed of the service were misleading.
Response
British Telecommunications plc t/a BT (BT) stated that the claims were in line with the guidance provided by the CAP Help Note on "’Unlimited’ claims in telecommunications advertising" and a previous adjudication regarding the claim "Totally unlimited broadband". In accordance with that previous adjudication, BT asserted that to describe their "unlimited broadband" package, as including "Totally Unlimited usage" was not misleading, as they did not have any traffic management policies in place, and did not choose to slow down their customers at peak times. They therefore asserted that they did not place any restrictions on the amount of data that their customers could download.
In their complaint, Virgin said the average consumer would expect to be able to use a "Totally Unlimited" service at all times of the day without experiencing any significant slowdown from the promoted headline speed, and would therefore expect to download as much as they wanted to. Virgin stated BT's service could not be described as "Totally Unlimited" because the amount of data that a consumer could download was limited by the actual speed of the service, which was affected by factors inherent in a copper ADSL-delivered service such as contention and the distance between a customer and an exchange (signal attenuation).
In response to Virgin's comments, BT acknowledged that ADSL broadband was limited by various factors, such as signal attenuation, but asserted that removing traffic management on an ADSL network did not necessarily cause an increase in congestion. They explained that, if like BT, a provider increased their network capacity, users could experience a service free from traffic management without an increase in congestion. They also stated that customers on an ADSL connection might experience a slow down at peak times, but the difference between peak time and 24-hour averages were scarcely noticeable. They provided the most recent Ofcom broadband report, "UK fixed-line broadband performance, May 2013: Research Report", in support of that point.
BT also argued that there was a difference between the headline speed of a product, and the average speed an individual could achieve. They explained that not all ADSL customers would achieve the headline speed, but that it was simply the maximum speed that the technology could possibly provide ‒ hence it was referred to as an "up to" speed. They also asserted that BT was compliant with the CAP Help Note on "Use of speed claims in broadband advertising".
Regardless of that, they considered that the data usage and speed claims were clearly set out in the ad, and were separate aspects of the broadband package. They also said consumers understood what "Unlimited" in the context of broadband meant, and were aware that it referred to the amount of data they could use. They therefore considered that consumers understood "Unlimited" claims to mean that they would not be charged extra or have their service slowed for breaching a data limit imposed by their provider. Similarly, they stated that "up to" speed claims had been used for over a decade and customers were aware that they referred to the speed of a broadband service and did not relate to the amount of data that a customer could download.
Therefore, given that the claims "Unlimited Broadband" and "Totally Unlimited Usage" were clearly usage claims, and since customers would not understand them in any other way, irrespective of the proximity or otherwise of speed claims, BT believed they were not misleading.
Assessment
Not upheld
The ASA had previously adjudicated on a similar case regarding the claim "Totally Unlimited", in which we concluded that most consumers would understand the claim "Totally Unlimited" to refer to provider imposed limitations, especially traffic management policies, and we did not consider that the average consumer would infer that "Totally Unlimited" meant that a broadband service was free from the inherent limitations found in any network. We noted that BT did not impose any restrictions on the amount of data a consumer could download on a monthly basis. We also noted that if a consumer clicked on the hyperlink "What's Totally Unlimited" they were presented with further information explaining that BT did not slowdown their customers.
We noted that Virgin objected to the claims "Unlimited" and "Totally Unlimited" alongside the maximum headline speed claim of 16 Mbit/s because they considered consumers reading the claims together would expect to be able to use BT's service at all times of the day at the headline speed, and would not experience any significant reduction in that speed. We considered, however, that the speed claim and the usage claims in the ad were clearly presented as independent parts of the package. We noted that the claim "Totally Unlimited Usage" appeared in a column under the heading "Monthly usage limit" and appeared next to claim "Up to 16Mb download speed", under the column headed "Speed". We also noted the additional pop-up text that explained that the speed a BT customer could expect to achieve if they bought the relevant "Unlimited Broadband" package would vary according to factors such as their location, home wiring and the time of day they accessed the internet. We therefore considered that the average consumer reading the ad would understand that if they bought the package, the speed they achieved might be less than the headline speed stated, and may vary depending on the time of day, but that the amount of data they could use was unlimited in that, regardless of whether they engaged in data intensive activities such as legitimate peer-to-peer file sharing, streaming or downloading large files, they would not be slowed down or restricted by BT.
We acknowledged that most consumers would understand that speed and data usage were separate aspects of a broadband package, but that there was a relationship between the two. We noted, however, that the ad clearly explained both aspects of the package including the fact that most consumers would not achieve the headline speed of 16 Mb, and considered that the appearance of the speed claim alongside the "Unlimited" and "Totally Unlimited Usage" claims would not change consumers' understanding of those features. Therefore, we considered that the average consumer would understand that if they bought the package, whilst they might achieve speeds lower than the promoted headline speed, their usage would be unlimited at the speed they achieved, as they would not be restricted by BT. We therefore considered that the claims when placed next to the maximum headline speed of the service were not misleading, and concluded that they were not in breach of the Code.
We investigated the claims under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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) and
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration), but did not find them in breach.
Action
No further action necessary.
