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ASA Adjudication on Virgin Media Ltd

Virgin Media Ltd

Communications House
Bartley Wood Business Park
Hook
Hampshire
RG27 9UP

Date:

15 October 2008

Media:

Insert, National press, Regional press

Sector:

Computers and telecommunications

Number of complaints:

1

Complaint Ref:

58271

Ad

a. A national press for Virgin Media had the headline "THE UK'S FASTEST BROADBAND FOR ONLY £20 A MONTH". Text underneath stated "now you can download songs in seconds and movies in minutes. Virgin's up to 20Mb broadband is the UK's fastest* because it comes down a whizzy fibre optic cable". Footnoted text at the bottom of the ad stated "* Fastest broadband claim based on Epitiro data for 01/10/07 to 31/12/07 (up to 20Mb cable broadband verses BT, TalkTalk, Tiscali and AOL ADSL Max). Fastest 'heavyweight' ISP in 2007, Broadbandchoices.co.uk ... Speeds referred to are download speeds. Acceptable usage policy applies. Minimum computer requirements apply. Speed of internet connection assumes components working at optimum speed and capacity".

b. An insert in the national press for Virgin Media stated "HATE TO WAIT? THEN DON'T, WITH VIRGIN BROADBAND FROM JUST £4.50 PER MONTH. The waiting is well and truly over when you have Virgin Broadband. This is because our broadband travels through fibre optic cable, unlike all other providers, whose copper wire broadband trickles down telephone lines. This means ours doesn't slow down on its way to your home. No matter where you live". Footnoted text at the bottom of the ad stated "fastest broadband claim based on Epitiro data for 01/06/07 to 31/11/07 (up to 20Mb cable broadband versus BT, Tiscali and AOL ADSL Max) ... Speed of internet connection assumes components working at optimum speed and capacity. Both cable and ADSL broadband are affected by user volume".

c. Another national press ad for Virgin Media had the headline "SUPER-FAST FIBRE OPTIC BROADBAND". Underneath was a column headed "YOU'VE EITHER GOT IT" with the name "Virgin Media" below, and another column headed "OR YOU HAVEN'T" with a list of 60 other broadband providers below. Text at the bottom of the ad stated "Only Virgin Media use fibre optic cable to deliver broadband that's widely available across the UK. All the other companies' broadband uses copper telephone wire, which means it slows down as it travels along the phone line to your home. But fibre optic broadband is high-speed all the way ... The UK's fastest broadband is fibre optic. Only from Virgin Media". Footnoted text stated "fastest broadband claim based on Epitiro data for average actual download speeds from 01/10.07 to 31.12.07 (up to 20Mb cable broadband versus Bt, TalkTalk, Tiscali, and AOL ADSL Max). Fastest 'heavy weight' ISP in 2007 Broadbandchoices.co.uk ... Speed of internet connection assumes components working at optimum speed and capacity. Both cable and ADSL broadband are affected by user volume".

d. Another national press ad for Virgin Media had the headline "COPPER. GREAT FOR PIPEWORK, NOT SO GREAT FOR YOUTUBE" next to an image of some copper pipes. Body copy on the other side of the image stated "Other companies' broadband uses copper phone wire. This is OK for phone calls, but not so good for broadband because the signal actually slows down the further you live from the exchange. Virgin Media uses fibre optic cable instead. It's far better at carrying a broadband signal because it uses light to deliver websites, music, photos and movies. So it's much faster - no matter where you live. In fact, ours is the fastest broadband you can get". Footnoted text stated "Fastest broadband claim based on Epitiro data for average actual download speeds from 01/10/07 to 31.12.07 (up to 20Mb cable broadband versus BT, TalkTalk, Tiscali and AOL ADSL Max). Fastest 'Heavy Weight' ISP in 2007 Broadbandchoices.co.uk ... Speed of internet connection assumes components working at optimum speed and capacity. Both cable and ADSL broadband are affected by user volume".

e. Another national press ad for Virgin Media had the headline "Hate to Wait?" Underneath was a chart that compared the TV and Song download times for Virgin's M, L and XL packages. Text at the side of the chart stated "Ours is the only broadband that whizzes down a fibre optic cable, so unlike all other broadband, it doesn't get s-l-o-w-e-r depending on where you live". Footnoted text stated "Speed of internet connection assumes components working at optimum speed and capacity ... Both cable and ADSL broadband are affected by user volume".

Issue

British Sky Broadcasting (Sky) challenged whether:

1. ad (a) was misleading, because they believed that top speeds varied significantly, and that Virgin's "up to 20Mb" service actually averaged speeds that were significantly slower;

2. ads (b), (c) and (d) misleadingly implied that ADSL services were always slow as a result of the copper wiring;

3. ads (b), (c) and (d) misleadingly implied that Virgin Media's cable broadband service never slowed down, whereas Sky believed it did slow down as a result of network capacity, and

4. ad (e) misleadingly implied that all ADSL customers would experience a noticeably slower service depending on where they lived in relation to the telephone exchange, because they believed ADSL customers on a 2 Mb service would not experience a noticeable difference in speed.

CAP Code (Edition 11)

Response

1. Virgin Media Ltd (Virgin) said the purpose of the ad was to promote their up to 20 Mb cable broadband as the UK's fastest broadband, and to highlight the advantages of their fibre-optic cable network over ADSL broadband.

Virgin explained that "up to 20 Mb" was the advertised headline speed, or maximum theoretical line rate, and that all ISPs used headline speeds when advertising the packages that they offered to customers. They said it was possible for all of their 20 Mb customers to achieve speeds of 20 Mb, because there was nothing inherent in the fibre-optic technology that reduced that speed. They argued that it was not possible, however, for all ADSL customers to achieve the headline speed of their particular service. They said that was because the ADSL network was inherently limited by the signal degradation that occurred over the ADSL copper wire network, and which caused those who lived further away from the telephone exchange to receive lower speeds. Virgin provided a copy of data from Epitiro that showed the average speeds that their customers achieved.

Virgin acknowledged that in reality the connection speeds of both cable broadband and ADSL broadband customers would be limited by other factors, such as the specification of the customer's computer, the way the customer's computer was configured, the websites the customers downloaded from or uploaded to, the hardware attached to the customer's PC, and user volume. Virgin said those factors would affect the speed of every home internet user, regardless of the technology used to deliver the internet service. Virgin pointed out that customers were made aware of that in the ad by small print that stated "Minimum computer requirements apply. Speed of internet connection assumes components working at optimum speed and capacity" and "Both cable and ADSL broadband are affected by user volume", and by the prefix "up to".

2. Virgin said the three ads all referred to  ADSL slowing down the further the customer lived from the telephone exchange. They said the ads did not imply that ADSL was always slow, merely that it slowed down or became slower.

Virgin argued that the three ads clearly referred to a particular aspect of ADSL broadband, which was that because it was delivered via copper wire telephone lines, it slowed down the further you lived from the telephone exchange. They said the purpose of the ads was to highlight the benefits of fibre-optic cable broadband, which did not suffer signal depreciation over distance, over ADSL broadband.

3. Virgin said they did not dispute that their fibre-optic network was affected by user volume. They said that whereas both cable and ADSL broadband technologies were affected by user volume, or contention, only ADSL broadband suffered signal degradation over distance. Virgin said the ads aimed to highlight the fact that cable broadband did not suffer signal degradation over distance, and they pointed out that all three ads featured small print that stated "Both cable and ADSL broadband are affected by user volume".

Virgin said they did not believe the ads were misleading because they were comparing Virgin's cable network with a specific aspect of an ADSL connection. They pointed out that the issue had been considered previously by the ASA, and on that occasion the complaint had not been upheld.

4. Virgin said the purpose of the ad was to highlight the fact that their cable broadband network did not suffer signal degradation over distance, unlike ADSL broadband. They said the ad made no direct reference to 2 Mb ADSL and was merely re-stating the accepted industry fact that ADSL slowed down the further the customer lives from the telephone exchange.

Virgin said it was reasonable to expect that the slower the speed was to start with, the less noticeable any difference in speed caused by signal degradation over distance would be. They said, however, that signal degradation over distance could still occur at slower speeds.

Assessment

1. Upheld

The ASA noted Virgin's argument that it was possible for all their 20 Mb customers to achieve that speed, because there was nothing inherent in fibre-optic technology that would reduce that speed. We acknowledged that Virgin had used the qualifier "up to 20Mb", and that small print at the bottom of the ad made it clear that cable broadband speeds would be affected by the customer's computer specification.

We noted, however, that the Epitiro data provided by Virgin showed that, for the period May to December 2007, Virgin's 20 Mb customers achieved average download speeds between just under half and slightly over half the 20 Mb headline rate. We considered that that data represented a significant difference between the headline speed and the actual speeds achieved by customers. We understood that many of the mainstream speed intensive services, such as video streaming, operated at low speeds, in order that they would be available to the majority of consumers. We also understood that, whilst lower speeds would not prevent customers from downloading files, it would affect the length of time it took for the download to be completed. We considered that many customers would reasonably expect to achieve speeds in range of the advertised headline speed, and might feel misled if they could only achieve speeds that were significantly lower than that. We understood that high user volume was one of the main reasons why speed depreciation occurred on cable broadband, but we noted that, despite Virgin's statement to the contrary, the ad did not include a disclaimer in the small print that cable broadband was affected by user volume. Notwithstanding that, we considered that the discrepancy between the headline speed and the actual speeds achieved by 20Mb customers was significant enough to warrant a more detailed disclaimer in the body copy of the ad that speeds could be affected by user volume. We therefore concluded that ad (a) was misleading.

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

2. Upheld

We noted Virgin's argument that the ads did not imply that ADSL broadband was always slow, merely that it slowed down or became slower the further you lived from the telephone exchange. We understood that the speed of an ADSL connection, which used a customer's phone line, could be affected by both line length and distance from the telephone exchange. We also understood that cable broadband speeds were not affected in those ways, but were potentially limited by high user demand and network congestion.

We considered that the claims in ad (c), that "All the other companies' broadband uses copper telephone wire, which means it slows down as it travels along the phone line to your home", and in ad (d) that, "Other companies' broadband uses copper phone wire. This is OK for phone calls, but not so good for broadband because the signal actually slows down the further you live from the exchange", did not imply that ADSL broadband was always slow. Rather we considered the claims referred to the particular type of speed depreciation caused by distance between the telephone exchange and the home, which could be experienced by ADSL customers, and implied that ADSL broadband became slower the further it travelled along the telephone line.

However, we considered that the claim in ad (b), that "... our broadband travels through fibre optic cable, unlike all other providers, whose copper wire broadband trickles down telephone lines", implied that ADSL broadband always moved slowly along the telephone line. Because we understood that ADSL broadband was not always slow, but became slower the further it travelled along the telephone line towards the customer's home, we concluded that ad (b) was misleading.

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

On this point we also investigated ads (c) and (d) under CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 19.1 (Other comparisons) but did not find them in breach.

3. Upheld

We noted Virgin's argument that ads (b), (c) and (d) aimed to highlight the fact that only ADSL broadband was affected by the distance between the home and the telephone exchange. We considered that the claims in ads (b) and (d) respectively, that "This means ours doesn't slow down on its way to your home. No matter where you live" and "Virgin Media uses fibre optic cable instead ... So it's much faster - no matter where you live" compared the specific type of speed depreciation that could be experienced by ADSL customers, caused by their distance from the telephone exchange, with fibre optic cable broadband, which was not affected by the customer's distance from the telephone exchange. We acknowledged that ads (b) and (d) included footnoted text that stated "Minimum computer requirements apply. Speed of internet connection assumes components working at optimum speed and capacity. Both cable and ADSL broadband are affected by user volume", and we considered that that text made it clear that Virgin's cable broadband could slow down as a result of network capacity, or user volume, as well as a result of other factors, such as the customer's computer specification. We therefore concluded that ads (b) and (d) were unlikely to mislead.

However, we considered that the claim in ad (c), that "All the other companies' broadband uses copper telephone wire, which means it slows down as it travels along the phone line to your home. But fibre optic is high-speed all the way", represented an absolute claim that implied that fibre optic cable broadband was always high speed and would never slow down. We also understood that cable broadband speeds could be affected by user volume and network congestion. We acknowledged that ad (c) included the same footnoted text as ads (b) and (d), however we considered that in this instance those footnotes contradicted rather than clarified the claim that cable broadband was "high-speed all the way". We therefore concluded that ad (c) was misleading.

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

On this point we also investigated ads (b) and (d) under CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 19.1 (Other comparisons) but did not find them in breach.

4. Not upheld

We noted Virgin's argument that ad (e) made no direct reference to 2 Mb ADSL broadband, but instead referred to the fact that ADSL broadband slowed down the further a customer lived from the telephone exchange. We also noted Sky's argument that the claim "so unlike all other broadband, it doesn't get s-l-o-w-e-r depending on where you live" implied that all ADSL speeds would become noticeably slower depending on where the customer lived. We considered, however, that the first part of the claim "Ours is the only broadband that whizzes down a fibre optic cable", established that Virgin were making a general comparison between fibre optic cable broadband on the one hand and other non-fibre optic, or ADSL, broadband on the other. We considered that most consumers would understand the claim to refer to non-fibre optic broadband in general, and not to specific ADSL broadband speeds. We therefore concluded that on this point ad (e) was not misleading.

We investigated ad (e) under CAP Code rules 3.1 (Substantiation), 7.1 (Truthfulness) and 19.1 (Other comparisons) but did not find it in breach.

Action

Ads (a), (b) and (c) must not appear again in their current form. We told Virgin to make sure that future ads for their 20 Mb package included a disclaimer in the body copy that speeds could be affected by user volume. We also told Virgin not to imply that ADSL was always slow as a result of its copper wire, or that fibre-optic cable would never slow down. We advised them to contact the Copy Advice team for guidance when preparing future similar ads.

No further action necessary in respect of ads (d) and (e).

Adjudication of the ASA Council (Non-broadcast)

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