ASA Non-broadcast Adjudication: Be Un Limited

Complaint

A press ad, for Be Un Limited, was headlined "up to 24 Meg broadband". NTL and a member of the public objected to the ad because they believed that the headline speed would be unattainable to most users. They believed that, with distance from the exchange, the service suffered from severe signal attenuation, which rendered the claim misleading.

CAP Code (Edition 11)

Adjudication

Complaints upheld

Be Un Limited (Be Un Ltd) said their service operated only in major urban areas and, at the time of the ad, was almost entirely based in London. They said they advertised only in areas where they had rolled out their network and the ad in question had appeared only in London newspapers. Be Un Ltd said their services were provided via ADSL2+ technology, which operated on a different frequency to that used for 8 Megabytes per second (Mbps) ADSL services allowing a much stronger signal over a shorter distance. Be Un Ltd said although distance from the exchange affected the speeds attainable with their service, the results of their speed tests showed a significant proportion of users achieved over 16 Mbps, especially within 1km of their local exchange. They also said other factors existed which affected user speeds, such as the quality of the copper wire, interference from other lines and internal problems at the user's premises. Be Un Ltd said they had little control over those factors but pointed out that the terms and conditions in the ad stated "download speeds and broadband comparison speeds are for speeds up to the quoted amount and are dependent on various factors." Be Un Ltd said the description of their service as "up to 24 meg" was intended to allow consumers to understand the difference between their service and the different levels of service offered by other ISPs. They maintained that the speed descriptions were the standard way in which broadband services were marketed and pointed out that they used the qualification "up to" to ensure that consumers were aware that the headline speed was an upper limit.

Be Un Ltd referred to the recent ASA adjudication on Bulldog Communications Ltd (Bulldog), which referred to the meaningful impact of signal attenuation on user experience, and sent the results of a series of user tests, which compared their 24 Mbps product with other products. They said, in the same location and at the same time of day, the 24 Mbps connection downloaded a 99 minute film in 11 mins 14 secs compared with 19 mins 47 secs and 27 mins 05 secs for two other providers' 8 Mbps connections. They also said they tested the meaningful difference between various speeds in downloading a normal Mp3 file. The test results showed a 24 Mbps and a 16 Mbps connection both downloaded the file in 2 secs compared with 4 secs for an 8 Mbps connection. Be Un Ltd maintained that those tests demonstrated that any limitations to their service did not meaningfully affect user experience.

The ASA accepted Be Un Ltd's assertion that factors other than distance from the local exchange affected user speeds. We considered, however, that the data provided by Be Un Ltd and NTL demonstrated a clear downward trend in user speeds with distance from the exchange, which increased markedly the closer it got to 3km. We noted the recent Bulldog adjudication about an 8 Mbps broadband service had referred to the negative impact of signal attenuation on user experience, but noted that Be Un Ltd's speed test demonstrated that the vast majority of users experienced speeds in excess of 8 Mbps. We understood that speeds of 8 Mbps would allow users to take advantage of the vast majority of speed intensive services and functions, such as video streaming and online gaming.

Although we accepted that speeds of less than 24 Mbps were unlikely to meaningfully affect the users' overall experience of the service so long as they were over 8 Mbps, we considered that some consumers would reasonably expect to achieve speeds in the range of the headline speed and might feel misled if they could only achieve speeds of around 8 Mbps. We noted the small print disclaimer in the ad and considered that many consumers would have some knowledge of the limitations and factors that affected ADSL broadband service speeds. We considered, however, that the significant drop off in the speed of Be Un Ltd's service for some customers was a significant enough condition to warrant a more detailed disclaimer in the body copy. We concluded that the ad was likely to mislead.

We noted Be Un Ltd's co-operation throughout the investigation and their willingness to amend their ads in line with the Bulldog adjudication. We asked them to state in the body copy of future ads that top speeds varied significantly, in particular because of a user's distance from their local exchange.

The ad breached CAP Code clauses 3.1 (Substantiation) and 7.1 (Truthfulness).