Orange Personal Communications Services Ltd t/a Orange St James Court Great Park Road Almondsbury Park Bradley Stoke Bristol BS32 4QJ Number of complaints: 1

Date: 13 June 2007 Media: Magazine Sector: Computers and telecommunications

Ad
A magazine ad, for a home broadband service, stated "It's easy to stay close to friends and family all year round with wireless home broadband from Orange.  You also get unlimited UK and international calls to 100 countries and unlimited downloads.  All from home".  Small print stated "Home phone line is needed ... Other terms apply, see Orange.co.uk/terms".

Issue
T-mobile challenged whether:

1. the claim "unlimited UK and international calls to 100 countries" was misleading, because it was subject to a fair usage policy of 1000 minutes per month, which was not stated in the ad and

2. "unlimited downloads" were subject to a fair usage policy.

The CAP Code:

3.1;7.1

Response
Orange said both their Talk service and their downloads service were subject to a fair usage policy and the omission of a reference to that in the small print of the ad was a result of an error in the production of the ad.  They said their normal practice was to draw attention to their fair usage policy with the wording "calls subject to Fair Use Policy for Talk service" and "unlimited downloading is subject to Fair Use Policy" and then refer customers to their website for the terms of that policy.

They said, as of 31 March 2007 only 1.96% of their customers had exceeded the fair usage policy limitation of 1000 minutes per month.  Furthermore, they said at that time no action had been taken against those customers to enforce the fair usage policy, although they said they planned to draw those customers' attention to the policy in future.

They said there was no specific limit for downloads that they deemed to be "fair use"; rather, there was a level based on their available network capacity through which they sought to ensure that their customers enjoyed a broadband service without any adverse affect on their other customers.  They said the level of downloads which gave rise to the possibility that a customer might be affected by the fair usage policy was 40GB in March 2007.  They said that affected 1.09% of their Unlimited broadband customers.  They said that the enforcement of their fair usage policy involved monitoring download levels and communication with customers over a six month period.  They pointed out that they did not operate any automated charging for high download levels that they considered to be contrary to their fair usage policy.

Orange said the ad was prepared in-house and they had no plans to use it again in its current form.  They said they would continue to use the "unlimited downloads" claim in relation to their Unlimited product but in accordance with their normal practice, they would ensure that their ads contained a reference to their fair usage policy.

Assessment
1. & 2. Upheld
The ASA noted Orange's fair-use policies had affected only 1.96% of their Talk service customers and only 1.09% of their Unlimited broadband customers.  We were therefore satisfied that the limit affected only atypical users and that it was sufficient to qualify the unlimited claims with a footnote about the existence of a fair usage policy.  

We noted Orange's assertion that the omission of a reference to the fair usage policy had been the result of an error and that their normal practice was to include a reference in the small print.  However, we also noted Orange had omitted to include that reference on at least two other occasions and on both those occasions they had also claimed the omission was due to an error.  We had received assurances from Orange on those occasions that they would ensure they included a reference to their fair usage policy in their ads.  We were concerned that Orange had failed to adhere to their assurances.  

We concluded that, because it did not include a reference to Orange's fair usage policies for both the Talk service and the unlimited downloads, the ad was misleading.

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

Action
We told Orange to ensure that they included a reference to their fair usage policy when using an unlimited claim in future.  We advised them to seek guidance from the CAP Copy Advice team for their future ads.

Adjudication of the ASA Council (Non-broadcast)