ASA Adjudication on Virgin Media

Ad

Four national press ads and a direct mailing for Virgin broadband.

a. Text in the first press ad stated "EVERYBODY'S TALKING ABOUT FIBRE OPTIC BROADBAND THERE'S ONLY ONE COMPANY ACTUALLY DOING IT The way we use the internet is changing. Now that we're watching more things like BBC iPlayer, the old-fashioned copper phone wires that other broadband companies use, are struggling to cope. But as people are beginning to realise, there is a solution - fibre optic broadband. After investing about £13 billion, only Virgin Media have fibre optic broadband that's widely available. Prices start at only £4.50 a month, guaranteed for a year, when you take a Virgin phone line for £11 a month." The ad also featured three newspaper clippings that stated "Video 'will prove terminal for net'", "But a national fibre optic network is at least 20 years away, says BT - and likely to cost £20 billion." and "DEMAND for video downloads is overloading networks so much the internet could keel over by 2010, experts warned yesterday. A surge in the popularity of clips on sites such as YouTube is putting copper phone wires, designed to handle voice calls, under strain." Text in small print stated “Subject to network capacity … Acceptable Use Policy applies … Both cable and ADSL broadband are affected by user volume.”

b. Text in the second press ad stated "'A national fibre optic network is at least 20 years away, says BT - and likely to cost £20 billion.' Metro 07.04.08 Wakey wakey! Fibre optic broadband is already here and paid for. There is only one fibre optic network widely available in the UK". Text in the small print stated "Virgin Media is the only residential fibre optic cable broadband provider with a national reach. Smallworld Media offers cable services in parts of Ayrshire, Cumbria and Lancashire. Wight Cable offers cable services on the Isle of Wight... ".

c. Text in the third press ad stated "'Telecoms giant BT wants to invest £1.5 billion in fibre optic cables to provide 'ultra-fast' broadband ... by 2012.' Metro 16.07.08 Why wait 4 years when you can get it now? There is only one fibre optic network widely available in the UK".

d. Text in the fourth press ad stated "AN APOLOGY Virgin Media would like to apologise to all the broadband providers we've shown up. Again. Last week BT announced plans to roll out a fibre optic network across part of the country. They plan to have this ready by 2012. Until then, BT and other broadband providers (Sky, Talk Talk, Orange, Tiscali, etc) will carry on delivering broadband using copper wire - which was designed for making phone calls. But Virgin Media's fibre optic network is already here and already providing millions of homes with superfast broadband. So why wait 4 years when you can have it now? There is only one fibre optic network widely available in the UK".

Text in the small print of each press ad stated "SERVICES AVAILABLE IN VIRGIN MEDIA CABLED STREETS ONLY. Subject to network capacity ... Both cable and ADSL broadband are affected by user volume".

e. The direct mailing stated "IT'S FAST. IT'S FUTURE PROOF. IT'S TIME TO SWITCH TO FIBRE OPTIC BROADBAND. If you've got broadband from BT, TalkTalk, Orange, Tiscali, Sky or pretty much anyone else, it comes down copper wires invented in the 1870s for carrying phone calls. However, with the massive growth of the internet, these wires are finding it hard to cope. Which means your broadband can be rather slow. Luckily for you, there's an amazing alternative. Virgin Broadband is delivered through fibre optic cable. It's made from strands of glass as thin as human hair and carries information by light, which means it doesn't slow down the further you live from the telephone exchange and can cope with masses of websites, movies and photos at virtually limitless speeds." Small print at the foot of the page stated "Subject to network capacity ... ". Text on the reverse of the mailing stated "Join the thousands switching every week to the only fibre optic network widely available in the UK." Small print at the foot of the page stated "Both cable and ADSL broadband are affected by user volume."

Issue

Sky challenged whether:

1. the claim "old-fashioned copper phone wires that other broadband companies use, are struggling to cope" in ad (a) was misleading and could be substantiated, because their own broadband network used copper wire and was not struggling to cope with demand;

2. ad (a) was misleading, because it implied that Virgin's fibre optic broadband was the solution to the increase in consumer demand for broadband when in fact Virgin operated a traffic management policy which restricted use during peak times, which suggested that its fibre optic system was unable to satisfy the demands of its customers.  Sky pointed out that they did not operate a traffic management policy to restrict their customer's broadband use;

3. the press cuttings in ads (a) and (b) and the claim "why wait 4 years when you can get/have it now" in ads (c) and (d) gave a misleading impression, because the press cuttings were taken out of context and implied that Virgin Media was already offering the same service as that which BT planned to introduce.  Sky believed Virgin only offered fibre optic cable broadband to street cabinets (FTTC), whereas the BT services referred to in ads (a) and (b) were for fibre optic broadband delivered straight to the home (FTTH) and in ads (c) and (d) were for both FTTC & FTTH; and

4. the claim "fibre optic broadband is already here and paid for" in ad (b) was misleading, because they believed Virgin Media served only 50% of the UK with fibre optic broadband and would have to invest considerably to achieve nationwide fibre optic coverage as claimed in the ad.

5. A member of the public challenged whether the claim "... with the massive growth of the internet, these wires are finding it hard to cope.  Which means your broadband can be rather slow." in ad (e) was misleading and could be substantiated.

CAP Code (Edition 11)

Response

1. & 5. Virgin Media (Virgin) said the maximum theoretical download speed that could be achieved through a single copper phone line was 24 Mb.  They explained that the claims "old-fashioned copper phone wires that other broadband companies use, are struggling to cope" in ad (a) and "... with the massive growth of the internet, these wires are finding it hard to cope." in ad (e) highlighted that, for consumers to achieve speeds greater than 24 Mb, a solution was needed.

They said it was widely accepted that the solution to cope with increased demand was a fibre-based network, specifically a network where fibre would replace the last mile of copper wires used in ADSL networks.  Virgin said their cable broadband already provided that solution in the form of a hybrid fibre/coaxial network, also known as an FTTC network.  Virgin provided links to three internet articles which discussed the strain on the copper wire network.

2. Virgin reiterated that it was undisputed that a fibre-based network was the future for delivering broadband in the UK and refuted Sky's contention that they implemented traffic management on their network because it could not cope with demand.

Virgin said their traffic management policy was put in place to prevent technically astute individuals from hogging bandwidth on their network, by using high bandwidth applications, which negatively affected the online experience of their other customers at peak times.  They said traffic management affected less than 5% of their subscriber base and was only enforced at peak times, between 4 pm and 9 pm.  Virgin said the implementation of their traffic management policy was unrelated to the overall capacity of their fibre-based network.

3. Virgin provided a link to an online BBC article which stated that Virgin was using the same technology that BT was proposing to roll out for 2012: a FTTC network. Virgin explained that when Sky referred to BT's FTTH commitments in relation to ads (c) and (d), that related to a relatively small-scale trial that would provide only one million homes with that service.  Virgin also provided a link to a second article from thinkbroadband.com which stated that BT's plans were to roll out a FTTC network, with only a proportion of flagship new-build developments receiving FTTH network by 2012.

4. Virgin pointed out that the claim "fibre optic broadband is already here and paid for" did not refer to the extent of the fibre optic network, but merely its existence.  They said the ad did not imply the service offered 100% UK coverage and pointed to caveats that made that clear: "SERVICES AVAILABLE IN VIRGIN MEDIA CABLED STREETS ONLY" and "Virgin Media is the only residential fibre optic broadband provider in the UK with a national reach".  Virgin explained that the latter caveat related to the existence of two regional cable broadband providers, mentioned in the small print.  They explained that, while they were not the only cable broadband provider, they were the only provider with a national reach and no broadband provider came close to offering their level of coverage (50%) of fibre optic network.  Virgin believed the claim "There is only one fibre optic network widely available in the UK" would be understood in that context.

Assessment

1. & 5. Upheld

The ASA considered that readers were likely to infer from ads (a) and (e) that ADSL broadband delivery was struggling under pressure due to increased consumer demand for high bandwidth applications and that Virgin offered a different form of delivery, fibre optic broadband, which provided a solution to that problem.

We understood that the copper phone wires over which ADSL broadband was delivered were initially designed to handle voice calls and were being put under strain by consumer use of high bandwidth applications such as YouTube and BBC iPlayer but were not 'struggling to cope' or 'finding it hard to cope' as claimed.

We noted the internet articles to which Virgin referred warned about the future of ADSL broadband should demand for high bandwidth applications continue.  We considered that, while the popularity of high bandwidth applications could affect user experience in the future, the claims "old-fashioned copper phone wires that other broadband companies use are struggling to cope" and "... with the massive growth of the internet, these wires are finding it hard to cope" exaggerated the extent of the effect on user experience at the time the ads appeared.  We concluded that ads (a) and (e) could mislead by exaggeration.

We also considered that the claim "... with the massive growth of the internet, these wires are finding it hard to cope.  Which means your broadband can be rather slow" in ad (e) implied ADSL broadband was slow because copper wires were struggling to cope and, as that was not the case, concluded that this claim was misleading.

On this point, the ads (a) and (e) breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 19.1 (Fair comparison).

2. Not upheld

We noted Sky believed ad (a) implied Virgins fibre optic broadband was the solution to the increase in consumer demand for broadband and questioned how this could be the case when Virgin operated a traffic management policy.

We noted ad (a) compared fibre optic broadband to "old fashioned copper wires that other broadband companies use" and therefore considered readers would understand Virgin were comparing their fibre optic broadband to ADSL broadband.

We therefore considered that readers were likely to understand the solution that Virgin referred to were the benefits of fibre optic broadband over ADSL broadband.  We understood that the speed of an ADSL connection could be affected by both line length and distance from the telephone exchange and that fibre optic broadband was not affected in those ways.

We also understood that both fibre optic broadband and ADSL broadband were affected by user volume, so in this respect they were similar, but also noted that the small text in ad (a) made this clear.

We considered that readers would therefore understand that Virgins solution related only to the speed at which high bandwidth applications could be downloaded should demand for these types of applications rise and concluded that the ad was not misleading on this point.

On this point, we investigated ad (a) under CAP Code clause 7.1 (Truthfulness) and 19.1 (Fair comparison) but did not find it in breach.

3. Upheld

We noted Virgin had not commented on the claims in ads (a) and (b).  We understood that the press cuttings featured in ads (a) and (b), that stated ... a national fibre optic network is at least 20 years away, says BT...", referred to BTs plan for a cable broadband network delivered FTTH.  We considered that the claims "EVERYBODYS TALKING ABOUT FIBRE OPTIC BROADBAND THERES ONLY ONE COMPANY ACTUALLY DOING IT" in ad (a) and "Fibre optic broadband is already here and paid for" in ad (b) could mislead readers to believe that Virgin were already providing the FTTH technology that BT planned to introduce in 20 years time.  We noted Virgin's cable broadband was delivered FTTC and therefore concluded that ads (a) and (b) could mislead.

We understood however that ads (c) and (d) referred to BTs plan to introduce cable broadband delivered FTTC by 2012 with some new-build homes receiving cable broadband delivered FTTH.  As above, we understood that Virgins cable broadband was delivered FTTC and therefore BT were planning to introduce in 2012 the same broadband delivery technology already offered by Virgin with an enhanced service for some new-build homes.  On balance, we concluded that the claim "Why wait 4 years when you can get/have it now?" in ads (c) and (d) was unlikely to mislead.

On this point, ads (a) and (b) breached CAP Code clause 7.1 (Truthfulness).  We investigated ads (c) and (d) under CAP Code clause 7.1 (Truthfulness) but did not find them in breach.

4. Upheld

We noted Virgin's assertion that the claim "fibre optic broadband is already here and paid for" referred to the existence of their fibre optic broadband network, not the extent of its coverage.  We noted however the claim appeared alongside a quote from the Metro newspaper that stated "'A national fibre optic network is at least 20 years away ... '" and was followed by text that stated "There is only one fibre optic network widely available in the UK".

We considered that readers were likely to infer that ad (b) referred to both the existence and extent of Virgin's fibre optic broadband network and implied Virgin offered a national fibre optic network that was already here and paid for.  We understood however that their fibre optic network covered 50% of the UK and, while we noted their level of coverage was greater than that offered by other broadband providers, we considered this was unlikely to meet with consumers' expectations of what they understood by the term "widely available".  We therefore concluded that the claim "fibre optic broadband is already here and paid for", in this context, could mislead.

On this point, ad (b) breached CAP Code clause 7.1 (Truthfulness).

Action

Ads (a), (b) and (e) must not appear again in their current form.  We told Virgin to avoid exaggerating the impact that high bandwidth applications were having on the speed of delivery of ADSL broadband and to remove the claim "fibre optic broadband is already here and paid for" in ads that referred to the extent of their network coverage.

Adjudication of the ASA Council (Non-broadcast)