ASA Adjudication on Tiscali UK Ltd

Ad

A TV ad, for Tiscali broadband, showed a man returning home and saying to his wife " ... I've just got us Tiscali's best ever broadband offer. We get up to 8 meg super fast broadband, a free wireless router and weekend calls to UK and top international destinations all for just £6.49 a month ...". On-screen text stated "Top speeds vary significantly based on users distance from local exchange ...". A voice-over then stated "For super fast broadband from just £6.49 call Tiscali now ..."; accompanying on-screen text stated "Superfast Broadband £6.49 a month for first 3 months, then £12.99 ...".

Issue

Eight viewers thought the claim "up to 8 meg super fast broadband" was misleading, because most Tiscali customers could not achieve speeds of 8 Mb.

BCAP TV Code

Response

Tiscali believed their ad was in line with previous ASA adjudications and CAP guidance.  They pointed out that the claim "8 meg" was preceded by the words "up to", to indicate that top speeds might not be achieved by all users, and on-screen text stated "Top speeds vary significantly based on users distance from local exchange".  

They said most broadband providers advertised and provided speeds of up to 8 Mb, but none was able to monitor every individual customers speed performance.  They explained that, when customers selected the up to 8 Mb product on their online registration pages, they were asked to enter their telephone number, whereupon a message was displayed which advised customers of the maximum speed Tiscali estimated their line could support.  At the same time a link was provided to a clear explanation of other factors that could affect maximum broadband speed.  Customers could then decide whether or not to go ahead with their order.  Tiscali said all that information was provided to manage customers expectations of the broadband speed they could achieve.

Tiscali submitted independent test reports from August 2007 to February 2008 on their up to 8 Mb connection speed performance compared with six other up to 8 Mb providers.  The reports showed that, between August and November 2007, Tiscalis performance was second best with an average connection speed of 6.5 Mb.  Between November 2007 and February 2008 Tiscalis performance was fourth best with an average connection speed of 6.0 Mb.

Tiscali said some of their up to 8 Mb customers were on the BT Wholesale ADSL MAX product, which was available to all the major broadband providers.  They explained that Local Loop Unbundling (LLU) enabled operators to connect directly to the consumer, via BT's copper local loops, and then add their own equipment to offer broadband and other services.  Tiscali had unbundled some of the largest telephone exchanges in the UK and installed their own equipment, which meant a substantial proportion of their customers were not on the BT Wholesale ADSL MAX product but were instead on Tiscalis own LLU up to 8 Mb product.  

Tiscali submitted raw data from May and June 2008 on bulk speed testing of all their LLU customers on the up to 8 Mb product.  They also submitted information on the percentages of non LLU up to 8 Mb customers who achieved certain proportions of the headline 8 Mb speed.  The latter was generated by BT Wholesales systems over a period of three years.

Tiscali believed the question of whether the claim "up to 8 Mb" was misleading was an industry-wide issue and was not limited to ads for their own products.  They said they and the rest of the industry had, in the past, adapted and invested to meet their customers' changing requirements and intended to carry on doing so in the future.

Clearcast said it was no surprise that some customers could not achieve speeds of 8 Mb.  They said the ad accounted for the fact that not all customers would achieve the top speed by preceding the "8 meg" claim with the words "up to" and by including a further qualification which explained that the highest speeds were dependent on the distance from the exchange.  They believed the ad was not misleading.

Assessment

Not upheld

The ASA understood that, since the ad appeared, Ofcom had introduced a voluntary Code of Practice for Internet service providers and Tiscali had signed up to it.  Under that Code Tiscali were required, amongst other things, to provide customers at the point of sale with an accurate estimate of the maximum speed their line could support and to resolve technical issues to improve speed.  They were also required to offer existing customers the choice to move onto a lower speed package if estimates given at the point of sale were inaccurate.

We understood that the test reports from August 2007 to February 2008, although independent, were carried out on only one line or on a proportionally small number of lines.  We therefore considered that the other bulk speed testing data from May and June 2008 was more comprehensive and provided a better picture of the speeds Tiscali customers were obtaining.  We noted in this instance there was no significant difference between the LLU and non LLU speeds.

We understood that the speeds "up to 8 Mb" services generally could deliver were significantly affected by signal attenuation, which was caused by distance from the exchange, and that as a result a significant proportion of consumers could not achieve speeds close to the headline speed.

We understood that consumers who were using broadband for basic functions, such as web browsing, would be unlikely to notice a deterioration in service if their speeds fell to 2 Mb; we noted just over 90% of Tiscalis up to 8 Mb customers achieved speeds of at least 2 Mb.  However, we considered consumers who were attracted to an up to 8 Mb service were likely to want to carry out more sophisticated online activities than merely web browsing.  We understood that consumers using broadband for video streaming or online gaming would be unlikely to notice a significant deterioration in service if their speeds fell to 6 or even 4 Mb; we noted approximately 50% of Tiscalis up to 8 Mb customers achieved speeds of at least 6 Mb and slightly over 70% achieved speeds of at least 4 Mb.  However, we understood that connection speeds were a significant factor when users were accessing files with large amounts of data, such as video or audio files, and those using broadband for downloading files such as music or video files were likely to notice a deterioration in service if their speeds fell to 6 Mb.

We noted on-screen text stated "Top speeds vary significantly based on users distance from local exchange" and considered that, on balance, that qualification was sufficient to support the claim "up to 8 meg broadband".  Because we considered a sufficiently reasonable proportion of Tiscali customers achieved speeds of 8 Mb, or close to 8 Mb, to render the "up to 8 meg" claim acceptable with prominent qualifying on-screen text, we also considered the claim that the up to 8 meg broadband was "super fast" was acceptable.

However, we considered that, as broadband penetration increased, consumers were likely to attach more importance to the ability to quickly download large files than they did two years ago.  We understood from Ofcoms 2006 Digital Progress Report on Broadband, published in April 2007, that 50% of adults with broadband at home downloaded music files, films or video clips.  We also considered that the demand for downloading large amounts of information quickly was likely to increase in future.  We considered that the speeds achieved by Tiscali up to 8 Mb customers were very close to the line in supporting an "up to 8 meg broadband" speed claim, even with a prominent on-screen text qualification, and as broadband became even more popular and more sophisticated in future, the speeds Tiscali had shown us their customers were currently achieving might not be sufficient to support an up to 8 meg claim, and particularly an "up to 8 meg super fast broadband" claim.  We were pleased to note, however, that Tiscali intended to adapt and invest to meet customers' requirements in the future, which might enable them to continue to make qualified 'up to 8 meg' claims.

We investigated the ad under CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising), 5.2.1 (Evidence), 5.2.2 (Implications) and 5.2.3 (Qualifications) but did not find it in breach.

Action

No further action necessary.

Adjudication of the ASA Council (Broadcast)