ASA Adjudication on British Sky Broadcasting Ltd
British Sky Broadcasting Ltd t/a
NHC3, Ground Floor
18 July 2012
National press, Internet (on own site), Television, Magazine
Number of complaints:
Digital and Direct Communications Ltd
a. A TV ad for Sky's broadband service, broadcast in January 2012. A voice-over in the ad stated, "Sky's winter broadband sale has totally unlimited broadband free for six months and, whether you take Sky TV or not, existing and new customers can enjoy totally unlimited downloads and we won't slow your broadband down, even at peak times ... Browse happily ever after with totally unlimited broadband, free for six months". On-screen text in the ad stated, "Totally unlimited downloads" and "Totally unlimited broadband free for 6 months".
b. A national press ad, published in January 2012, was headed "Sky Winter Broadband Sale. 6 months free totally unlimited broadband". A subheading stated, "for both existing and new customers taking calls, line rental and Sky Broadband Unlimited. New broadband and calls customers only". Further text stated, "The Sky Winter Broadband Sale is now on, with totally unlimited broadband free for 6 months with no usage caps, including evening and weekend calls to UK* landlines".
c. An ad on www.sky.com, accessed in January 2012, stated, "No usage caps. No worries. Get 9 months half price totally unlimited broadband without taking Sky TV".
Virgin Media (Virgin) challenged whether the claim "Totally unlimited broadband" in all three ads was misleading.
CAP Code (Edition 12)
British Sky Broadcasting Ltd (Sky) believed the ads were in line with the guidance provided by the CAP Help Note on "Unlimited" claims in telecommunications advertising (the Help Note). The Help Note concerned provider-imposed limitations and distinguished these from limitations that were inherent in the nature of the service. Sky believed that if an "unlimited broadband" service was one that was free of immoderate provider-imposed limitations, as outlined in the Help Note, a "totally unlimited broadband" service would be one that had the highest degree of freedom from provider-imposed limitations. Sky said they were the only mainstream broadband service provider that offered unlimited usage without any provider-imposed limitations. They maintained that consumers should be able to distinguish between providers who offered "unlimited" broadband services that featured limitations such as traffic management policies and those, like Sky, that offered an unlimited service with no provider-imposed limitations at all.
Sky referred to a previous ASA adjudication that made a "truly unlimited" claim in relation to its broadband service. The ASA upheld the complaint that the claim was misleading because the service was subject to provider-imposed limitations on tethering, peer to peer file sharing and internet phone calls. Sky believed their use of the claim "totally unlimited" was largely similar in meaning to "truly unlimited" and because they imposed no limitations on their users, their own ad was not misleading. Furthermore Sky said no consumer complaints had been received about their use of the claim "totally unlimited broadband", despite it being used since 2008. They believed this indicated that the average consumer understood what Sky meant by the claim and were not misled by it.
In their complaint, Virgin said it was understood that an "unlimited" broadband service was not subject to significant provider imposed limitations. They asserted that "totally unlimited" went beyond this and implied there were no restrictions on the amount of data that a customer could download, apart from the headline speed of the service. Virgin said Sky's service could not be described as "totally" unlimited because the amount of data that a consumer could download was limited by the actual speed of the service, which was affected by a number of factors inherent in a copper DSL delivered service, such as distance from the exchange (known as 'signal attenuation'). They said the distance between a customer and the exchange affected their broadband speed and therefore the amount of data they could download in a given period. These restrictions were not applicable to all providers because some services, like those offered by Virgin, were not delivered over a copper wire. As an example Virgin stated that a 10-Mb/s Virgin customer with traffic management applying during peak times could theoretically download 87 GB of data over a 24-hour period, whereas a Sky DSL (copper wire) customer on an average speed of 7.5 Mb/s with no traffic management applied could theoretically download 77 GB of data in the same period. For these reasons Virgin considered the claim "totally unlimited" misleading.
We put these objections to Sky. Sky said the Help Note acknowledged that there were inherent limitations related to the networks used by providers, but it did not prevent providers from making "unlimited" claims on this basis. The Help Note related to provider-imposed restrictions only. In light of this, Sky did not believe the amount that a consumer could download over a given period was particularly relevant to either "unlimited" or "totally unlimited" claims. Sky also referred to Ofcom's Communications Infrastructure report, published in November 2011, which found that residential fixed broadband customers used 17 GB of data per month on average, with usage varying between 10 GB and 40 GB per month. In light of this they considered the ability of a Sky customer to theoretically download 77 GB of data per day was not contrary to the average consumer's expectation of "totally unlimited" usage.
They added that none of the ads complained about featured a headline speed claim but where such a claim was made, Sky would include appropriate qualifying information, in accordance with the ASA requirement, including information about signal attenuation. In summation Sky considered that their use of the claim "totally unlimited broadband" was consistent with the average consumer's understanding of unlimited claims and would be understood as describing a service that had the highest level of freedom from provider-imposed limitations.
Clearcast said Sky confirmed to them that there were no restrictions on their totally unlimited broadband service in regard to usage. They added that Sky did not operate a traffic management policy at all. In light of this they considered that Sky's service was accurately described as "totally unlimited".
The ASA noted Virgin's objections to the use of the claim "totally unlimited broadband" in all three ads, and Sky's responses to those objections. We considered that a simple "unlimited" broadband claim implied that a service was free from provider based limitations on speed or usage that were more than moderate. Sky met the conditions necessary to support a simple "unlimited" broadband claim, as acknowledged by Virgin in their complaint, because they imposed no provider imposed limitations on their customers.
We had already adjudicated on a claim similar to "totally unlimited", as referenced by Sky in their response, in a case that involved the claim "Truly unlimited internet". At that time we concluded that "truly unlimited" went beyond a simple "unlimited" claim and implied there were no restrictions at all on a customer's usage. We considered that "totally unlimited" was fairly similar in meaning to "truly unlimited". We noted that Sky did not impose any restrictions/exclusions on their "totally unlimited" customers at all. We also considered that the meaning of "totally unlimited" was explained in the ads: ad (a) stated, "... we won't slow your broadband down, even at peak times"; ad (b) stated, "... totally unlimited broadband free for 6 months with no usage caps"; and ad (c) stated, "No usage caps. No worries".
We noted that there were inherent limitations in any network, which would limit a consumer's actual broadband speed and therefore the amount of data that a consumer could download over a particular period of time. Some of these limitations, such as signal attenuation, resulted in a greater loss of speed for DSL services compared to fibre-optic services. However, we considered that consumers would understand that the claim "totally unlimited" referred to provider-imposed limitations, especially traffic management policies. We did not consider that the average consumer would infer that "totally unlimited" meant the broadband service was free from the inherent limitations found in the network. None of the ads featured any speed claims but, where speed claims did appear, advertisers had to include qualifying information about the likely effect of inherent limitations on their ability to achieve advertised maximum speeds. This would include information on signal attenuation, where applicable.
Because we considered that the average consumer would understand from the ads that "totally unlimited broadband" meant there were no provider-imposed limitations or restrictions on usage, we concluded that the claim was not misleading.
We investigated ad (a) under BCAP Code rules 3.1 and 3.2 (Misleading advertising), 3.9 (substantiation) and 3.12 (Exaggeration) but did not find it in breach.
We investigated ads (b) and (c) under CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising), 3.7 (Substantiation) and 3.11 (Exaggeration) but did not find them in breach.
No further action necessary.