Background
Summary of Counil decision:
Two issues were investigated, both of which were Upheld.
Ad description
A TV ad for Three Mobile seen in March 2020 promoted their 5G service. The ad depicted fantastical scenes set in the future and the voice-over stated, “Hold on to your crumpets. Three is building the UK’s fastest 5G network. Next stop, the future”, accompanied by on-screen text which repeated the claim. Small on-screen text stated “Limited coverage, includes NI from March 2020. 5G compatible phone required. For verification see three.co.uk/fast5G”. At the end of the ad, the voice-over stated “join the future on Three it’s real 5G”.
Issue
Vodafone UK challenged whether:
1. the claims “Three is building the UK’s fastest 5G network” and
2. “Three it’s real 5G” were misleading and could be substantiated.
Response
1. Hutchinson 3G UK Ltd t/a Three said “Three is building the UK’s fastest 5G network” was a standalone claim that related to their 5G network that went live for home broadband in August 2019 and for mobile in February 2020. They said their network would be the fastest because of their superior 5G spectrum holdings which meant that the more 5G spectrum they deployed, the faster the service would be. They said the claim was based on four key technical factors which positioned them to provide the fastest speeds in their 5G locations.
Three said that spectrum was the key determining factor of network speed and quality and it was what enabled networks to transmit data. They said only their network was supported by 100 MHz of spectrum, was all in one block, or contiguous which meant that Three had almost three times as much 5G spectrum as any of its rivals, which drove faster speeds. It was the only UK mobile network that could provide a full 5G service in accordance with international technical standards which would inevitably make Three’s network significantly faster than their competitors. Three said they had 140 MHz of usable 5G spectrum, whereas the other operators had 40 MHz or 50 MHz; the spectrum holding size correlated directly to the data transfer speeds that could be achieved on that network. They provided evidence which outlined their 5G spectrum position and peak 5G speeds compared to their competitors.
Three said they were the only network to have a Cloud core, which was what organised data transmission and because cloud-based networks were more efficient and reliable than legacy solutions, it allowed them to handle even more data, which supported delivery of high speeds to customers. Three said their data centres, which hosted the network which processed their data, were distributed around the UK which brought the network closer to customers and reduced latency and allowed for some local content storage which supported delivery of a faster service. They said the radio access network (RAN) which included the masts, base station equipment and connectivity that linked mobile data traffic to their core network, could carry more data supporting increased speed resulting in a faster end-user experience. Three cited the views of The International Telecommunication Union, the Electronic Communication Committee part of the European Conference of Postal and Telecommunications Administrators, the GSM Association (a trade body for mobile operators), Huawei, Telefonica and Vodafone on the importance of a 5G operator having at least 100 MHz of bandwidth if they were to deliver high speed, low latency services.
Three said that in Non-Standalone mode they used 4G alongside 5G (known as carrier aggregation) to perform signalling, control functions and voice calls, while the 5G did the actual data transmission. They said because they had so much 5G spectrum they could offer their customers pure 5G data sessions whenever they were within coverage of a 5G mast. They said using 4G LTE for data sessions would not be as fast as 5G, especially where a 4G spectrum already had a large amount of customers on it and that a blended 4G and 5G offering was not technically actual 5G data transmission. Three said their 5G experience was on a dedicated, otherwise empty 5G bandwidth reserved only for 5G customers. Therefore their claim to be “building the UK’s fastest 5G network” meant that their 5G would be faster than anyone else’s and that it was not relevant that other networks may be able to use 4G spectrum to boost the speeds their customers received, because where data was being transmitted over 4G, that element was not technically a 5G experience, as 4G LTE was not 5G.
Three said that even if the other networks could gain additional 5G spectrum in the future, the amount they would have to acquire meant it was unlikely those networks could exceed Three’s significant spectrum advantage. In any event, Three said that the claim they were “building the UK’s fastest 5G network” should not be rendered misleading due to the possibility that their spectrum advantage may be lessened in the future, because it was based on their current circumstances and holdings.
Three said the claim was related to the speed capability of the network and when consumers needed that speed and provided they were within coverage, it would be there. They said all networks would have the same issue that the further one was from a mast, the slower the speed would be, but all factors being equal, a faster network would in general terms still be proportionally faster at a given distance from a mast. Whether or not that speed would only be needed and immediately apparent in a limited number of cases was irrelevant to whether the claim was factually accurate, and the fact that only some consumers would currently experience the full benefits did not mean their network did not have that speed advantage capability.
Clearcast said at the time of approving the ad, Three held 100 MHz of contiguous spectrum compared to 50 MHz of their nearest competitor and their external telecommunications and technology consultant confirmed that by holding twice as much spectrum available for a 5G service as their competitors, it would mean that their speeds were faster. They said Three also confirmed they had capacity for 140 MHz of spectrum so they were able to claim that they were building the UK’s fastest network, because they were in the process of making it even better than it already was.
Clearcast said they asked Three to make clear any limitations to the 5G service, which was done by including legal text which stated “limited coverage, includes NI from March 2020”.
2. Three said the claim “Join the future on Three, it’s real 5G” came at the end of a futuristic fictional ad illustrating the future possibilities of 5G, which the average consumer would understand as being futuristic. The claim did not imply that other networks were not 5G – the statement was entirely self-referential. However, from a technical point of view, it encapsulated in an accessible, relatable shorthand, that they had 100 MHz of contiguous 5G spectrum. They said other UK network operators had publicly acknowledged the technical superiority of Three’s 5G spectrum position in their submissions to Ofcom.
Clearcast said the claim “It’s real 5G” was not comparative and made clear that Three was simply saying that their service was real, which implied that it was a good service.
Assessment
1. Upheld
We considered that consumers would understand the claim “Three is building the UK’s fastest 5G network” to mean that Three was in the process of building a network that would support 5G at a faster speed than any of the other 5G operators in the UK at the time the ad appeared. We considered that the reference to “network” was likely to be understood to refer to the physical infrastructure and technical requirements needed to support 5G, and that consumers would associate 5G services with speeds that were significantly faster than 4G services, resulting in a superior user experience. We considered that consumers would understand that the ‘fastest 5G network’ would offer the best user experience of all network operators, across the UK.
We understood that bandwidth was the maximum amount of data that could be transferred over a network or internet connection. We noted that Three had 100 MHz of contiguous spectrum bandwidth and 140 MHz of usable 5G spectrum while their nearest competitors held 40 MHz and 50 Mhz respectively. We acknowledged that the view of industry experts was that a 5G operator should have at least 100 MHz of bandwidth if they were to deliver high speeds. We accepted that, all other factors being equal, greater 5G bandwidth could provide higher peak speeds and greater capacity.
We sought information from Ofcom on the relationship between bandwidth, capacity, speed, and consumer experience. They explained that, while there was a link between available bandwidth and peak speeds, the availability of peak speeds was dependent on several factors. Those included the requirements of the services or applications being requested, the demand on capacity by other users, whether the activity a user engaged required those peak speeds, the location of the user, and the wider characteristics of the network (including Core Network, transmission route and the mobile mast site). Ofcom told us that, even where peak speeds were theoretically achievable, if there was no demand for those speeds, or conversely too much demand, those peak speeds would not be available and capacity would be shared between multiple concurrent users. They said that while all other things being equal Three might be able to offer higher peak speeds than other operators, they would be achievable only in certain ideal conditions and would rarely be experienced by consumers everywhere in a mature 5G network.
In Non-Standalone mode, which we understood was the more widely implemented 5G deployed by operators, LTE technology (a form of 4G) was required for signalling, control and voice functions. The 4G LTE technology could be used to provide extra bandwidth, by combining carriers or using two non-contiguous blocks, known as carrier aggregation, thereby increasing speed. We noted that Three highlighted that their 100 MHz of spectrum was superior because it was contiguous, or all in one block. We sought Ofcom’s view on how the use of carrier aggregation affected speed and customer experience. Ofcom said they recognised that large contiguous holdings could allow operators to provide somewhat higher peak speeds, and a moderate increase in capacity but carrier aggregation could, in theory, adequately substitute for contiguous spectrum. That meant potential peak speeds available to consumers could be similar regardless of whether a service was delivered using carrier aggregation or contiguous spectrum of equivalent bandwidths and that in practical terms, there was unlikely to be an impact in overall user experience. Any difference in practical terms would only be apparent in a small minority of cases.
We acknowledged that large contiguous spectrum holdings could allow a mobile operator to provide somewhat higher peak speed and a moderate increase in capacity. We also acknowledged that where a 4G network had lots of customers relative to its capacity, there could be challenges to delivering a high level of consistent performance through carrier aggregation. However, we understood such a scenario, if it applied, would in practice likely be limited to a relatively small number of hotspots. Consumers who were with other mobile operators, who could use carrier aggregation because they had less 5G spectrum than Three, would still be able to reach similar speeds as consumers on a contiguous spectrum and have a similar overall experience.
In addition to the factors mentioned above which affected peak speed, coverage, average speeds and network reliability were also relevant and important, as they affected the overall consumer experience on a day-to-day basis, whereas the circumstances in which peak speeds were currently achievable were very limited. We therefore considered that spectrum size was only one of a number of important factors which determined network speed and quality. We acknowledged the claim was related to the capability of Three’s network, but we considered it would be understood as being about the actual real world benefits experienced by consumers. We also understood 5G take-up across the market was small at the time the ad appeared and that while more material differences could appear in future as take up increased, at that time, differences in 5G capacity between networks were unlikely to result in material differences in the experiences of end users.For those reasons, we concluded that the claim that “Three was building the UK’s fastest 5G network” was likely to mislead.
On that point, the ad breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
In setting or revising any such standards, Ofcom must have regard, in particular and to such extent as appears to them to be relevant to the securing of the standards objectives, to each of these matters:
a) the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally, or in programmes of a particular description;
b) the likely size and composition of a potential audience for programmes included in television and radio services generally, or in television and radio services of a particular description;
c) the likely expectation of the audience as to the nature of a programme's content and the extent to which the nature of the programme's content can be brought to the attention of potential members of the audience;
d) the likelihood of persons who are unaware of the nature of the programme's content being unintentionally exposed, by their own actions, to that content;
e) the desirability of securing that the content of services identifies when there is a change affecting the nature of a service that is being watched or listened to and, in particular, a change that is relevant to the application of the standards set under this section...".
Section 319(4).
(Misleading advertising).
2. Upheld
The ad stated “Join the future on Three, it’s real 5G”. We noted that the claim was made in the context of scenes such as a woman being beamed up from her sofa and passengers flying on a plane to the moon, which were clearly fantastical. However, we considered that the claim was nevertheless likely to be seen by consumers as a comparison with competitor networks, implying that the service offered by other network operators was not “real” 5G.
While consumers were unlikely to be familiar with the technical specifications of 5G, they would primarily associate 5G with speeds and performance that were significantly faster and better than 4G services. We considered that consumers would interpret the claim to mean that the 5G service offered by Three’s competitors would not provide those significantly faster speeds and better performance. In the context of the claim “Three is building the UK’s fastest 5G network”, the claim “it’s real 5G” was likely to be understood by consumers to mean that the best user experience for 5G services would only be available on Three’s 5G network.
As set out in point 1, we considered that Three had not shown that consumers on their 5G network would experience a significantly better 5G service versus other operators. Differences in the 5G services between networks, at the time the ad was seen, were unlikely to result in material differences in the experiences of end users such that Three’s service could be described as offering “real” 5G, in contrast to their competitors. For those reasons, we concluded the claim “Join the future on Three, it’s real 5G” was likely to mislead.
The ad breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
In setting or revising any such standards, Ofcom must have regard, in particular and to such extent as appears to them to be relevant to the securing of the standards objectives, to each of these matters:
a) the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally, or in programmes of a particular description;
b) the likely size and composition of a potential audience for programmes included in television and radio services generally, or in television and radio services of a particular description;
c) the likely expectation of the audience as to the nature of a programme's content and the extent to which the nature of the programme's content can be brought to the attention of potential members of the audience;
d) the likelihood of persons who are unaware of the nature of the programme's content being unintentionally exposed, by their own actions, to that content;
e) the desirability of securing that the content of services identifies when there is a change affecting the nature of a service that is being watched or listened to and, in particular, a change that is relevant to the application of the standards set under this section...".
Section 319(4).
(Misleading advertising).
Action
The ad must not be broadcast again in its current form. We told Hutchinson 3G UK Ltd t/a Three to ensure future ads did not mislead, for example, by making claims which suggested that the 5G service offered by competitors would not be as fast as theirs without sufficient evidence, or implying that their competitors did not offer “real” 5G.
