ASA Adjudication on Everything Everywhere Ltd
Everything Everywhere Ltd t/a
Hatfield Business Park
17 April 2013
Internet (on own site)
Computers and telecommunications
Number of complaints:
Saatchi & Saatchi Ltd
Claims on www.t-mobile.co.uk for mobile phone tariffs stated "... on the Full Monty. Unlimited internet. Unlimited texts. 2000 minutes to any network. Just £36 a month ...". Text underneath stating "What's included?" linked to a pop-up box which included text stating "Our Full Monty plans let you do so much more on your phone. Take a look at our guide below to see what's included and what you'll need to pay for. Included in Full Monty plans at £36 a month. UK Internet Including tethering and VOIP calls - Unlimited ... ".
The complainant challenged whether the claim that the internet was "Unlimited" was misleading and could be substantiated because he understood that T-Mobile operated a traffic management policy.
CAP Code (Edition 12)
T-Mobile explained that they operated a traffic management policy (TMP) on their Full Monty plan, which they believed was a measure necessary to manage demand on their network in favour of all their customers. This was published in the form of a "key facts indicator" on their website. They believed that each part of the TMP was moderate, within the reasonable expectation of customers and was therefore in line with guidance within the CAP Help Note "Use of "unlimited" claims in telecommunications advertising". They explained that the average Full Monty customer used over 1GB of data a month and that there was no fair-use policy in relation to the amount of data customers could consume by using internet/data services on their phone. They said customers could even use the plan for tethering.
T-Mobile explained that their TMP had four elements. The first element was that they blocked the delivery of spam e-mail (defined as unauthenticated SMTP) at all times. They said they blocked customers from sending e-mail using SMTP technology because, in their experience, this was likely to be an unsolicited marketing communication in breach of data protection law and therefore in breach of their service agreements with customers.
Another aspect of the TMP was that they slowed down peer-to-peer activity during the peak hours between 8am and 2am every day. They explained that peer-to-peer activity involved the uploading and downloading of content to and from file sharing websites. They believed it usually involved the transfer of large files and was the technology of choice for people who wanted to share 'pirate' copies of copyright-protected content such as full length movies. They said if a customer was using the network in this way, they would be in breach of their service agreement with them, although they noted they were unable to verify whether a customer was using the network for that purpose. They explained that due to technical and privacy law reasons, they were unable to determine which activity particular customers on particular tariffs were engaging in and that, even if they were able to identify which websites particular customers were accessing, it was not within their remit to determine which websites were illegal and which were not.
They also considered that peer-to-peer file sharing was a passive activity, because the customer would start the transfer and then have to wait until it was complete. They said their mobile services were intended for more interactive uses, such as streaming or browsing content online, and they therefore prioritised these activities through their TMP.
They believed that peer-to-peer activity was more suited to a fixed line broadband connection using a laptop or PC and was not a common activity for customers using their mobile phone to connect to the internet because of the limited storage capacity of most mobile phones and because mobile phone coverage could fluctuate and interrupt downloads. They only applied their policy at peak times (from 8am to 2am) so customers who wished to use peer-to-peer services could do so during non-peak times, allowing T-Mobile to optimize the service for the majority of their customers who did not carry out peer-to-peer activity. They said the nature of peer-to-peer file sharing was such that it consumed all bandwidth made available to it. They maintained that if peer-to-peer file sharing was not slowed down during peak hours, the data consumption would saturate the network and most customers would be prevented from achieving optimal network data speeds for time-critical activity, in order that a small minority of users could conduct a non-time sensitive activity at higher speeds. They believed this type of network traffic management had become reasonably expected by consumers of unlimited data packages, particularly on mobile networks where bandwidth was more limited.
In relation to by how much the peer-to-peer activity was slowed down during peak times, T-Mobile said network speeds were subject to a number of network factors which were difficult to quantify. They believed this was an industry-wide problem and they gave examples of other network providers who slowed down peer-to-peer activity but did not specify the extent of the slow-down.
T-Mobile believed these two policies, which served to limit potentially unlawful and/or unusual customer behaviour, were entirely moderate and would not affect the use and enjoyment of the vast majority of customers on the Full Monty plan. They believed the policies would be within the reasonable expectation of customers purchasing the plan.
The third element of the TMP was a maximum download speed of 4 Megabits per second on the Full Monty plan. T-Mobile explained this speed limitation may vary depending on traffic conditions over time and was to ensure customers could use their phone in the way they advertised. They believed this control was moderate and within the reasonable expectation of an average customer. In particular, customers could watch videos and listen to music using typical services like YouTube and iPlayer, even in high definition because a speed of 3 Megabits per second was needed to be able to stream videos in high definition. They explained that customers would only experience any impact from the speed limitation if they wanted to download large files over their mobile internet connection. They would still be able to download the files, but it would take longer than it would if they were able to access a higher speed on the network. Whilst their 3G/HSPA+ network had a theoretical speed of 21 Megabits per second, the average speed that most customers (blended across all customers) experienced was 3 Megabits per second, across all times of day. As this was lower than the cap, the cap would have had very little or no impact on customers seeking to download at peak times, the time when customers understood that demand could often slow down supply. This was why T-Mobile had promoted the plan in a way to manage customers' expectations. In particular, they had promoted the ability to watch YouTube in HD and had not promoted downloading. Their own research data showed that less than 1.5% of customers were regular downloaders. It was therefore only customers who made heavy use of data-intensive services, such as those who frequently downloaded large files or did a lot of interactive online gaming, who were potentially affected. They believed this control did not exceed what customers would reasonably expect.
The fourth element of the TMP was a maximum upload speed of 1 Megabit per second on the Full Monty plan. T-Mobile said they had this measure in place because high demand for uploading within a mobile cell site could lead to a loss of coverage for all users in that cell site. The speed limitation varied depending on the traffic conditions over time and also in order to ensure that customers could use their phone in the way it was advertised. T-Mobile said a common example of uploading would be posting a photo to a user's Facebook page. Their view was that customers were not yet demanding a more sophisticated service when it came to uploading and they considered the posting of files online to be a one-off activity.
T-Mobile believed the restriction on upload speed was moderate and within the reasonable expectation of an average customer. Only a small amount of mobile internet use related to customers uploading content from their phones. Their own research had shown that the ratio of download to upload activity on their network was 8:1. As upload use was low, it was therefore reasonable to conclude that uploading was not a material part of the service and was not a key part of customers' expectations about the service. They believed that a typical photo was about 1 to 2 Megabytes in size, which would (at a speed of 1 Megabit per second) take 12 seconds to upload on their network.
T-Mobile had carried out their own research by analysing the activities of customers on the Full Monty plan during a sample hour on a representative weekday during the peak period of usage between 9pm and 10pm. They provided the results of their research.
T-Mobile acknowledged that they could be more transparent about the existence of their TMP and were taking measures to remedy that. In particular, they intended to add a new legal term to marketing communications for the Full Monty plan which would explain that a TMP existed and refer customers to their website for more information. They also intended to update the "key facts indicator" referred to above, to include express mention of the speed limitations on both upload and download speeds.
T-Mobile believed their TMP was in line with the relevant guidance, as it was moderate and within customers' expectations of the service. They did not believe it rendered the "unlimited" claim misleading.
The ASA noted that the Full Monty plan was described as having "unlimited" UK internet and that this was in the context of a mobile data service on a handset. We considered that "unlimited" was a general claim about the whole service, rather than about a specific aspect of the service. We considered that consumers were likely to expect that services, or features of services, described as "unlimited" were not unduly limited and that where policies existed, which limited speed of access, that the restrictions could reasonably be considered to be moderate only.
We understood that T-Mobile operated a TMP on its Full Monty plan which consisted of four elements: blocking the delivery of spam e-mail; slowing down peer-to-peer activity during peak hours (8am to 2am); a download speed cap of 4 Megabits per second; and an upload speed cap of 1 Megabits per second.
We considered the first element of the TMP: blocking the delivery of spam e-mail. We noted that this measure was targeted at illegitimate users who were in breach of their service agreements with T-Mobile by using the service to send unsolicited marketing communications. We considered that this restriction was within the reasonable expectations of consumers for a general consumers' service and noted that the activity was prohibited under the terms of their service agreements with T-Mobile. Consequently, we considered that it was reasonable for T-Mobile to operate such a policy focusing on a specific type of what could be considered illegitimate usage of the service and did not render the "unlimited" claim misleading.
In relation to download and upload speeds, we understood that the setting of maximum speeds of 4Mbit/s for downloads and 1Mbit/s for uploads applied to all customers on the Full Monty plan and therefore were not restrictions to particular individual users or indeed restrictions targeted at particular activities or types of content. They were, in effect, the maximum upstream and downstream speeds of the service. Consequently, we considered that these restrictions were not relevant to the consideration of whether the service could be described as "unlimited". We further noted that there were no references to specific speeds for the service and consumers were therefore unlikely to have expectations that they would be able to achieve speeds in excess of 4Mbit/s for downloads and 1Mbit/s for uploads that would render the maximum upstream and downstream speeds as being immoderate restrictions.
We considered the restriction of slowing down peer-to-peer activity (i.e. the uploading and downloading of large files onto file-sharing websites) during peak hours (8am to 2am). We noted T-Mobile's comments regarding this being the technology of choice for people sharing 'pirate' copies of copyright-protected content such as full-length movies without permission. However, we also noted that they were unable to verify whether customers were carrying out peer-to-peer activity for this purpose for the reasons explained by T-Mobile and we considered that peer-to-peer activity might also be used for legitimate purposes. We understood that T-Mobile believed that the policy was moderate, because it only affected a small percentage of their customers as their research had shown that approximately 1.8% of Full Monty customers used background download services, of which one type would have been peer-to-peer activity. However, we noted that although consumers might reasonably have expected, for instance, a slow-down of peer-to-peer activity during peak hours due to general congestion caused by more people accessing the internet, T-Mobile had not provided information on how much the activity was slowed down. We also noted that peak hours were between 8am and 2am and there was only a six-hour period during the middle of the night during which peer-to-peer activity was not slowed down.
Furthermore, although we noted the service provided was to a mobile handset, which consumers were likely to use differently to, for instance, a fixed line service, we considered that the ad's inclusion of tethering within the terms of the service was likely to lead consumers to expect that they could engage in more bandwidth-intensive activities, such as peer-to-peer activity, using the mobile device in conjunction with a computer. As they had not provided evidence to show that the restriction was moderate and in line with consumers' reasonable expectations of an "unlimited" service we considered the claim was misleading.
The claim breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising) and 3.7 (Substantiation).
The claim must not appear again in its current form. We told T-Mobile not to claim that their service was "unlimited" if they imposed restrictions that were more than moderate.