ASA Adjudication on Virgin Media Ltd

Ad

A national press ad for Virgin Media had the headline "ONLY 3 OUT OF 10 HOMES IN THE UK CAN GET 8Mb OR MORE OVER BT PHONE LINES. 10 OUT OF 10 HOMES WITH OUR FIBRE OPTIC BROADBAND CAN GET 20Mb". Further text underneath stated "There is only one fibre optic network widely available in the UK. It brings you the Mother of all Broadband". Small print at the bottom of the ad stated "70% of homes in the UK can't get 8Mb over BT phone lines - source: Point Topic ... All cable broadband enabled homes can achieve their 'access line speed'. However: (a) actual 'throughput' speed assumes all components working at optimum speed and capacity; and (b) both cable and ADSL broadband are affected by user volume ... Up to 10Mb roll out due to complete 09/08 ... Speeds referred to are download speeds. Minimum computer requirements apply".

Issue

1. British Sky Broadcasting (Sky) challenged whether the claim "10 out of 10 homes with our fibre optic broadband can get 20Mb" was misleading, because they did not believe there was sufficient capacity in Virgin's network to provide all customers with 20Mb at the same time.

2. The ASA challenged whether the comparison between the speed available on Virgin's service and the speed available over BT phone lines was misleading and unfair.

CAP Code (Edition 11)

Response

1. Virgin Media Ltd (Virgin) said their fibre optic network had the ability to provide an access line speed of 20Mb to all customers at the same time. They said the appropriate qualification in terms of actual throughput speed had been made in the footnoted text, but they argued that that was separate from the issue of the access line speed of which a network was capable.

2. Virgin said the comparison was based on how many homes were able to achieve the maximum headline speed they subscribed to. They argued that the ad intended to highlight the fact that with fibre optic broadband all customers have a connection to the cable network that will allow them to achieve the headline speed they subscribed to, but that, due to the 'post-code lottery' nature of ADSL technology, not every 8Mb ADSL customer would have a connection that was capable of achieving 8Mb, even before external factors such as user volume and customer equipment had been taken into account. They said because of that only three out of 10 homes were able to experience the headline speed of 8Mb, and they explained that the source of that data was Point Topic, an independent broadband sector analyst. Virgin said that 8Mb was the most widely available ADSL service, and they therefore considered it to be the most appropriate comparison.

Virgin said, due to the nature of the ADSL broadband provided over BT phone lines, the maximum speed a consumer would experience (or access line speed) would be affected by line length and the customer's distance from the telephone exchange. They said, in contrast, cable broadband access line speeds were not affected by line length or distance from the telephone exchange. Virgin argued that because there was no difference between access line speed and headline speed on cable broadband, 10 out of 10 homes with fibre optic broadband were able to experience the advertised headline speed of 20Mb. They said that caveats related to actual throughput speeds were set out in the footnoted text.

Assessment

1. Upheld

The ASA noted Virgin's response. We considered, however, that the claim "10 out of 10 homes with our fibre optic broadband can get 20Mb" was likely to be understood by consumers to refer to the actual speeds achieved by cable broadband users in the home, rather than the potential speed of Virgin's cable network technology. We noted that the footnoted text stated that actual 'throughput' cable broadband speeds were affected by user volume, as well as the speed and capacity of users' computers. However, we considered that in this instance the footnoted text contradicted rather than qualified the strong implication of the headline claim that all customers on Virgin's cable broadband 20Mb package would experience that speed. Because we had not seen data demonstrating that all Virgin's 20Mb cable broadband customers could achieve the headline speed in the home, we concluded that Virgin had not substantiated that claim.

On this point the ad breached CAP Code clauses 3.1 (Substantiation) and 7.1 (Truthfulness).

2. Upheld

We noted Virgin's argument that the technology of fibre optic cable broadband potentially allowed all customers to achieve the maximum headline speed, but that due to the technology used in an ADSL connection not every ADSL customer would have a connection that was capable of achieving the headline speed of 8Mb. We acknowledged that fibre optic cable broadband was not subject to speed depreciation caused by line length and distance from the telephone exchange, which could affect the speed of an ADSL connection. We understood, however, that both cable broadband and ADSL speeds were potentially limited by other factors, such as high user demand and network congestion. We noted that the Point Topic data on which the "3 out of 10" claim was based measured actual access line speeds on ADSL BT lines. We also understood that the access line speed was the maximum speed of the data connection between the broadband modem and the local exchange, which was measured without taking into account other factors that could affect broadband speeds, such as high user demand or network congestion. We understood that the access line speed of a cable broadband connection was expected to be the same as the headline speed. However we noted that we had not seen independent data that demonstrated that all homes with Virgin's 20Mb service would actually achieve access line speeds of 20Mb. We therefore considered that it was not appropriate to compare the actual access line speeds of ADSL over BT lines, with the expected, or theoretical, access line speeds of cable broadband as stated in the ad.  

Furthermore, we considered that consumers were likely to understand the claim "Only 3 out of 10 homes in the UK can get 8Mb or more over BT phone lines. 10 out of 10 homes with our fibre optic broadband can get 20Mb" to refer to the actual speeds achieved by consumers in the home, rather than the access line speeds of ADSL and cable network technologies. We noted that data presented by Virgin in relation to a previous, recent ASA Adjudication had shown that their 20Mb cable broadband customers achieved actual speeds between just under half and slightly over half the 20Mb headline rate. We understood that Virgin had based the claim in the ad on the maximum headline speeds that they believed Virgin's cable network technology could support, but we considered that that headline speed would not necessarily be achieved by all of Virgin's 20Mb cable broadband customers. Because of that, and because we considered that the basis on which the comparison had been made was not appropriate, we concluded that the comparison made in the ad was unfair and misleading.

On this point the ad breached CAP Code clauses 3.1 (Substantiation), 6.1 (Honesty), 7.1 (Truthfulness) and 19.1 (Other comparisons).

Action

The ad must not appear again in its current form.

Adjudication of the ASA Council (Non-broadcast)