Ad description
A website for a satellite broadband provider stated "TOOWAY 'ABSOLUTE'. Limited Time OFFER. Download Speed 20.0Mb. Upload speed 6.0Mb. Monthly Data Allowance UNLIMITED and UNLIMITED at Night (11pm-7am)...".
Issue
The complainant challenged whether the "UNLIMITED" claims in the ad were misleading, because they felt that the advertiser's traffic management and "fair access" policies had a more than moderate impact on customers exceeding data thresholds.
Response
Avonline commented that they purchase satellite services from Eutelsat (a satellite operator), who configure the main "Tooway" packages. They highlighted that their terms and conditions allow Eutelsat to manage the service under their Fair Access Policy (FAP).
On 31st January 2013, Eutelsat announced a new package line-up. This included a limited offer package: "Tooway Absolute". Its primary features were up to 20Mbps download and up to 6Mbps upload speeds, no monthly capped daytime (07:00 to 23:00) data allowance (i.e. unlimited) plus the unlimited overnight (23:00 to 07:00) data allowance. The package was launched on 1st February 2013 subject to the FAP and ended on 31st August 2013.
In July, Eutelsat notified Avonline that they were managing traffic more actively when necessary at peak evening periods, and had set FAP measures that were going to be applied to identify heavy users. For the "Tooway Absolute" package, this was a threshold of 60 GB above which traffic management could apply during busy periods. However, Avonline highlighted that there was no data cap on the "Tooway Absolute service", and believed the service complied with the CAP Code. They said that the 60 GB threshold simply identified the point at which a customer could subsequently be impacted if traffic management applied during periods of high network usage.
Avonline explained that under the FAP, if a "Tooway Absolute" customer was measured by Eutelsat to have exceeded the 60 GB threshold over the previous 30 days, they would be designated as a heavy user. They also said that data measures were updated daily, so that a consumer could move into or out of the heavy user list. By identifying the heavy users, Eutelsat would prioritise other users' traffic more highly, so as to provide the best overall level of service to all users. Avonline stated that whilst a heavy user would see some slowing in comparison to other users, they had no reason to consider that such impacts would not be moderate in comparison to the reduced speeds of all of the other unmanaged users during busiest network periods.
Having obtained customer performance data from Eutelsat, Avonline said that on average, during periods of traffic management, their "Tooway Absolute" customers who were traffic managed achieved just under 50% of the average speeds achieved by non-managed "Tooway Absolute" customers during peak network hours (i.e. when traffic management applied). Furthermore, their heavy user profile was updated daily and having analysed their reports for the last month, "Tooway Absolute" customers under traffic management represented 2.1% of their customer base. Avonline said there were no "special conditions/restrictions" on heavy users other than bandwidth management. There were no file size restrictions and no protocol exclusions applied.
Avonline stated that it was clearly presented on the "Packages" web page that of the four consumer packages sold at the time, Tooway Medium, Tooway Large, Tooway XL and Tooway Absolute, the only differentiation between the packages was the quantity of data downloadable in each month.
The presentation of the four packages in a comparative, side-by-side fashion allowed the average user to understand the use of unlimited data allowance in the context of the other three packages that had a numeric, capped monthly data allowance. The use of unlimited in the "Monthly Data Allowance" box was in the specific context of a volumetric statement that contrasted the fact that the Tooway Absolute package did not have a contractually capped monthly data allowance; a fact that was not changed by the application of traffic management.
Avonline believed that the application of traffic management, only during the busiest periods of network use was, to the average user, not dissimilar to the slowdown generally experienced and the overall impact of traffic management both in duration and impact was limited and therefore, overall, reasonably considered moderate.
Assessment
Upheld
The ASA considered that "unlimited" was a strong and absolute claim and that consumers were likely to expect that services, or features of services, described as "unlimited" were subject only to moderate restrictions.
We understood that the claim "Monthly Data Allowance UNLIMITED and UNLIMITED at Night (11pm-7am)" referred to a service with no overall limit on the amount that users could download over a given period, but a restriction on the speed of download outside the hours of 11 pm to 7 am.
We noted the ad's emphasis on the above claim and were concerned that it might be interpreted as offering a broadband service that was not subject to any limits, when that was not the case owing to the speed restrictions imposed during the day. Although we acknowledged that the second part of the claim attempted to qualify and explain the reference to "unlimited", we considered that such a strong and absolute claim as "unlimited" could not be qualified, unless the advertisers could demonstrate that any restrictions imposed were moderate only.
We noted in Avonline's response, that a small proportion of customers had their speeds reduced as a result of exceeding the data threshold of 60 GB, and even during periods of traffic management, were able to continue web browsing as normal and downloading at a reduced rate. However, we considered that the average consumer would not expect a service described as "unlimited", to impose an FAP whereby traffic-managed consumers would only achieve 50% of the average speeds attained by non-managed customers during peak network hours.
Because Avonline had attempted to qualify an "unlimited" claim and not demonstrated that the restrictions they imposed were moderate only, we concluded that the ad was likely to mislead.
On this point, the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
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).
Action
The ad must not appear again in its current form. We told Avonline that their future advertising must not claim that their service is "unlimited" if they impose restrictions that were more than moderate.
