Ad description
A mobile phone coverage checker found via the website www.ee.co.uk. The results displayed when the complainant entered his postcode, stated "UPGRADED TO DOUBLE SPEED 4G Great news, the 4G network in this area has been upgraded to double speed 4G. This means everything is even faster than before, like uploading large files or downloading a film from EE's film store". A page detailing the "DOUBLE SPEED" service stated "THE TECHNICAL BIT We're rolling out a new enhancement to our 4G network so average speeds will be twice as fast as today - 24-30Mb/second. And top speeds are up to 60Mb/second. Upload speeds will also be doubled to 11Mb/second. We can do this because we have sufficient portions of 1800 spectrum to upgrade our customers to 2 x 20 MHz from the current 2 x 10 MHz they use today. It's like adding two additional lanes of traffic to a road and changing the speed limit, meaning you can get more cars travelling on it, at faster speeds".
Issue
The complainant challenged whether the claim that 4G double speeds were active in their area was misleading, because they had only received download speeds of 8‒14 Mbps rather than the claimed 24‒30 Mbps.
Response
EE said they launched their double speed offering in July 2013 and they let consumers know about the double speed offering in a number of ways. EE understood that the complainant believed the wording displayed on their coverage checker results web page was misleading, because the complainant had not been able to obtain the average double speeds referred to.
EE stated that Ofcom had accepted that the models they used to predict coverage were generally accurate and EE's mobile coverage checker was a useful tool for their customers. EE explained that they were clear in their wording on the "Technical Bit" section on their double speed web page, which made it clear that speeds were doubling from an average of 12‒15 Mbps to an average of 24‒30 Mbps. EE said text stated "We're rolling out a new enhancement to our 4G network so average speeds will be twice as fast as today - 24-30Mb/second". EE explained that the legal footnote on this page stated "Double speeds based on EE test data 2013 (average speeds doubled from 12-15Mbps to 24-30Mbps)". They stated that these speeds were the average shown by EE test data. EE provided us with written and graphical evidence, which showed the speeds achieved in the double speed cities and how this data was used to give an overall average double speed.
EE explained that as with any average, there will be 4G double speed customers who have achieved lower speeds and some who have achieved higher speeds. They said that since the launch of 4G in October 2012, they have used average speed claims to indicate to consumers the kind of speeds they could expect to achieve on their mobile internet. EE stated that they think this is the best method of ensuring customers get an indication of the mobile speeds they can realistically achieve in the large majority of cases. They believed that customers were able to understand that the speeds quoted on the coverage checker were an average and so there will be customers who have experienced both lower and higher speeds, compared with the average shown.
EE said that the wording displayed after the complainant had entered their postcode, which stated "this area has been upgraded to double speed", only appeared to a customer doing a coverage check, when the whole of the postcode had been upgraded to 4G double speed. They explained that if only a small percentage of the postcode had been upgraded, then this wording would not have appeared. EE stated that they are unable to examine a consumer's speed on an individual basis but only with reference to their postcode. EE explained that there may be spots within a postcode that do not have the same coverage and speeds as the postcode as a whole. They said that they made customers aware of this fact with wording that can be seen at the bottom of the coverage checker, which stated "This map is only a guide and not a guarantee of service availability in a particular location. It shows outdoor coverage only and may include locations where mobile devices don't work. As with all radio-based systems, service may be affected by a number of local factors, such as building materials, tree cover and weather conditions".
EE explained that they simply provided a guide as to whether a particular postcode had been upgraded to double speed to help customers make a more informed choice about their mobile phone plan. EE stated that where a customer is unhappy about coverage for any reason, EE offered a 14-day money back guarantee, meaning customers could return their phone and plan penalty free. However, EE noted that existing customers benefited from double speed for no extra cost and therefore the complainant had not paid extra in any way.
Assessment
Not upheld
The ASA acknowledged that the complainant had only achieved mobile download speeds of 8‒14 Mbps rather than speeds of between 24 and 30 Mbps, which was the average speed range quoted on EE's mobile phone coverage checker. However, we noted that the quoted speed of 24‒30 Mbps was only an average speed and EE had provided us with evidence showing that the majority of customers did achieve these speeds. The written and graphical evidence EE sent us showed the speeds achieved in the double speed cities and how that data was used to give an average double speed. We therefore considered that most customers would achieve the quoted average speeds in the ad.
We understood that EE was unable to examine a consumer's speed on an individual basis, but only with reference to their geographical area as dictated by their postcode and we understood that there may be spots within a postcode that experienced lower or even higher speeds than the average provided for the postcode as a whole. Furthermore we noted that wording at the bottom of the mobile coverage checker explained that the coverage checker was only a guide and a customer's individual service could be affected by a range of other factors. We considered consumers would understand that as the quoted figure was an average, and because the text under the map stated it was only a guide, their own speed could be above or below the average. We therefore concluded that the ad was not misleading.
We investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. 3.3 (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) but did not find it in breach.
Action
No further action necessary.
