ASA Adjudication on Virgin Media Ltd

Ad

A national press ad for Virgin Media stated "If you don't want to know the cheapest way to get Setanta Sports, look away now". The ad featured five bubbles, which compared the cost of Setanta Sports from different providers; text stated "BT Vision £9.99 a month Freeview £9.99 a month Satellite £9.99 a month Virgin Media £8 a month (M & L TV) Virgin Media FREE with XL TV". Text beneath the bubbles stated "Including 46 Barclays Premier League games, live and exclusive to Setanta Sports. Only £8 a month with Virgin Media M and L TV packages or free with XL TV". Small print stated "… Subject to network capacity, minimum term contract. Subscription to Virgin digital TV required. TV package prices including phone line are TV size: M: £11 a month, TV size: L: £22.50 a month and TV size: XL: £31.50 a month. 6 Setanta sports channels (Setanta Sports 1, 2, Setanta Golf, Racing UK, Celtic TV and Rangers TV) are free with TV size: XL, 6 Setanta sports channels plus NASN are £8 a month for 12 months with TV size: M and L …Installation charges apply (starting at £25)..".

Issue

British Sky Broadcasting (Sky) challenged whether:

1.  the headline claim "If you don't want to know the cheapest way to get Setanta Sports, look away now" and accompanying price comparison were misleading, because Virgin Media did not offer Setanta Sports as a standalone package; it was necessary to also subscribe to a Virgin Media TV package, and, including the extra costs this would incur, it was not the cheapest; and

2.  the comparison was unfair and misleading, because they believed Virgin Media had not compared like with like.  They said BT Vision, Freeview and satellite viewers could subscribe to and receive Setanta Sports on a month-by-month basis, whereas Virgin Media customers were obliged to commit to a 12-month contract to receive Setanta Sports.

CAP Code (Edition 11)

Response

Virgin Media (Virgin) said they had no plans to use the ad again.

1.  Virgin said the ad should have made clear that the 'cheapest' claim was based on a comparison of the listed companies over a 12-month period.  They argued, however, that, on that basis, Virgin was the cheapest provider of Setanta Sports.

They explained that in order to subscribe to Setanta as a BT Vision customer, it was necessary to also subscribe to a phone line from £11 per month plus BT broadband from £17.99 per month on a 12-month contract.  They said, to obtain Setanta as a Sky customer, it was necessary to subscribe to a phone line provider from £11 per month plus Sky TV subscription at a minimum cost of £15 per month and on a 12 month contract.  In addition, Sky charged a one-off £10 connection fee.  They said Freeview customers were required to purchase a Freeview box, which had the relevant conditional access for Setanta, and pay a £10 one-off connection fee.  

They pointed out that, in addition, for the Setanta subscription charge of £9.99, Freeview and BT Vision customers only received one channel, Setanta Sports 1, whereas Virgin customers received six channels within their package.  

Virgin pointed out that the Setanta Sports pack was included with the XL TV package for their customers, charged at £31.50 per month and, at the time the ad was published, the cost of Setanta for M & L TV customers was £8 per month on top of their M & L subscription charges, which were £11 and £22.50 per month respectively.  Virgin argued, therefore, if the prices of each given provider were assessed across a 12-month period, Virgin was the cheapest provider of Setanta Sports.  They also pointed out that the small print included the TV package prices and stated that a minimum-term contract was applicable.

2.  Virgin explained that the ad should have made clear that the comparison was being made across a 12-month period.  They believed, if the ad had clearly included that information, it would have been a fair comparison to make.

Assessment

1.  Upheld

The ASA noted it was possible to subscribe to Setanta Sports as a Virgin customer for £8 per month extra for M & L TV customers or at no extra cost as an XL TV customer; those packages, with Setanta Sports and including phone-line charges, cost £19, £30.50 and £31.50 per month respectively.  We understood that Virgin Media customers paid minimum installation costs of £25.  

We understood that, at the time the ad appeared, Setanta Sports was also available on the digital terrestrial platform, with BT Vision and Freeview, and via satellite.  In order to receive Setanta as a BT Vision customer, it was necessary to subscribe to BT Total Broadband plus BT line rental and pay a one-off £10 connection fee to Setanta; the total cost was, therefore, aside from the connection fee, £38.98 per month.  Satellite customers were not obliged to subscribe to Sky TV to receive Setanta Sports; they could, having paid minimum satellite installation costs of £120 and Setanta's conection fee of £10, subscribe to Setanta without any other obligatory fees for £9.99 per month.  Satellite customers who subscribed to Sky TV, were not obliged to subscribe to a phone-line rental contract, but, having paid set up costs of £30, Sky's no phone-line option one-off fee of £25 and a £10 one-off connection fee to Setanta, could receive Setanta Sports for £9.99 per month on top of their Sky TV subscription; the minimum total cost, aside from any connection or set up fees, was, therefore, £24.99 per month.  We noted, however, the ad stated "Satellite" and not "Sky TV" in the comparison.  Freeview customers who wished to receive Setanta had to purchase a Top Up TV-compatible digital box or a digital TV and pay a £10 one-off connection fee in order to receive it.  We noted, however, that providing the correct equipment was in place, Setanta was available, aside from the connection fee, for £9.99 per month to Freeview customers.  Although we appreciated that there could be some initial costs involved in the set up of satellite and Freeview, we considered that those were one-off charges, which were entirely dependent on customers' preferences and were paid to the equipment supplier; the costs were not obligatory as part of the supply of any particular channel.  Unlike BT Vision, Virgin and satellite customers who subscribed to Sky TV, there were no ongoing fees upon which the provision of Setanta Sports was dependent.

We understood that Virgin had intended to convey the cost of Setanta to consumers in addition to any package obligations they were already subject to and to point out that it was available at either no extra cost or £8 per month from them, depending on the TV package chosen.  

We considered, however, that readers would infer from the ad that, on a month by month basis, Virgin was able to provide Setanta Sports at a cheaper rate than any other provider.  We noted the total monthly costs involved to receive Setanta via BT Vision, Sky TV and Virgin M, L and XL TV.  We also noted, however, there were no monthly fees for Freeview or satellite customers who were not Sky TV subscribers, over and above the cost of their Setanta Sports subscription at £9.99 per month.

We noted Virgin's argument that they provided more Setanta channels than some of the other providers.  We considered, however, that consumers were likely to interpret the claim "the cheapest way to get Setanta Sports" in conjunction with the statement "Including 46 Barclays Premier League games, live and exclusive to Setanta Sports" to mean the lowest rate to access Setanta Sports 1; Setanta's flagship channel which offered exclusive live coverage of the Barclays Premier League.  Because it was possible to obtain Setanta Sports 1 at a lower monthly rate by subscribing to it with Freeview or on the satellite platform than by taking a Virgin package, we concluded that the claim "If you don't want to know the cheapest way to get Setanta Sports, look away now" and accompanying price comparison were misleading.

On this point, the ad breached CAP Code clauses 7.1 (Truthfulness), 15.1 and 15.3 (Prices).

2.  Upheld

We understood that, in order to receive Setanta with BT Vision or on the satellite platform as a Sky TV subscription customer, it was necessary to subscribe to additional obligations, for example, line rental, broadband or digital TV packages.  However, those customers, who chose Setanta in addition to their existing contractual obligations, were able to subscribe to it on a month-by-month basis.  Freeview customers and customers who used the satellite platform without a Sky TV subscription, could subscribe to Setanta Sports on a month-by-month basis without any obligation or financial commitment other than those involved with their Setanta Sports subscription.  

We noted Virgin customers, however, were obliged to commit to accept a Setanta Sports subscription directly from Virgin on a 12-month contract either as an optional extra with M and L TV packages or as an intrinsic element of the XL TV package.

We understood that Sky believed, because Virgin customers had to commit to a 12-month contract to receive Setanta Sports, the comparison was unfair and that Virgin had not compared like for like.  We disagreed.  We considered that the products, Setanta Sports packages, were comparable as they were intended for the same purpose.  

Comparisons, however, should not mislead or be likely to mislead. Whilst we noted the text "minimum term contract.  Subscription to Virgin digital TV required" appeared in the small print, we considered that that qualification did not go far enough to satisfactorily explain the contractual conditions underlying the provision of Setanta Sports from Virgin in comparison with the other providers.  We considered that a subscription to a 12-month contract, in the context of the comparison, was a significant factor that was likely to affect consumers' decision to purchase and should, therefore, have been made clear in the ad.            

We noted Virgin were willing to include text in future ads to clarify that the comparison was being made across a 12-month period, but considered that that disclaimer would still not go far enough to make potential customers aware that, unlike the other providers, Setanta Sports was being offered by Virgin on a 12-month contractual basis.

We concluded that the comparison was fair but misleading.

On this point, the ad breached CAP Code clauses 7.1 (Truthfulness), 18.1 and 18.3 (Comparisons with identified competitors and/or their products) but did not breach 18.2 (Comparisons with identified competitors and/or their products).

Action

We told Virgin not to imply in future ads that they offered the cheapest way to receive Setanta Sports and also to ensure that comparisons were not presented in such a way as to give a misleading impression to consumers.   

Adjudication of the ASA Council (Non-broadcast)