Virgin Media Ltd Communications House Bartley Wood Business Park Hook Hampshire RG27 9UP Number of complaints: 1

Date: 2 July 2008 Media: National press Sector: Computers and telecommunications

Ad
A national press ad, for Virgin Media, had the headline "HATE TO WAIT?". Underneath the headline was a table that featured download times for different files depending on the package the customer was on. The table showed that customers on the M package (up to 2 Mb) could download a song in 22 seconds and a TV show in under 26 minutes, customers on the L package (up to 4 Mb) could download a song in 12 seconds and a TV show in under 13 minutes, and customers on the XL package (up to 20 Mb) could download a song in 2 seconds and a TV show in under 3 minutes. Footnote text at the bottom of the ad stated "Download speed comparisons are a guide only and assume song is 5 Mb and TV show 30 minutes / 341 Mb. Both cable and ADSL broadband are affected by user volume. Acceptable usage policy applies".

Issue
British Telecommunications plc challenged whether the ad was misleading, because they believed that Virgin's Traffic Management Policy capped customers' speeds during peak hours, and that during those hours customers would not be able to download songs or TV shows at the speeds and times cited in the ad.

The CAP Code:

3.1;7.1

Response
Virgin Media Ltd (Virgin) said their traffic management system only focused on the heaviest downloaders and uploaders on their network, because it was their actions that slowed down internet speeds for other users, especially at peak times. Virgin explained that Subscriber Traffic Management (STM) was only active from 4 pm until 9 pm (peak time), and that the STM thresholds were designed around typical usage on each of their tiers of service. They said, for example, a 2 Mb customer would typically download very little because that product was aimed at customers who wanted to check their emails, surf the web and do a moderate amount of downloading, whereas their 20 Mb product had a much higher STM threshold because customers taking that service typically downloaded and uploaded more files. Virgin said customers were asked about their internet usage at point of sale and sold a package that suited their needs. They said all of their customers would therefore be able to download a song or TV show in the times quoted in the ad, and that those times would only change if customers downloaded an abnormal amount of data between 4pm and 9 pm. Virgin explained that, for example, a 20 Mb customer would have to download over 614 individual songs during peak time before they hit the STM threshold and had their speed moderated.

Virgin said the song and TV show file sizes quoted in the small print of the ad had been written as Megabits (Mb) in error and should have been written as Megabytes (MB). They acknowledged that a customer on their M package would have the STM policy enforced against them if they were to download a TV show in peak hours because the TV file size quoted in the ad 341 MB was just over the STM threshold for M customers of 300 MB. They said they would amend the ad to state that M customers could download a TV show in 29 minutes, to reflect the fact that it would take longer for the download to be completed when M customers were subject to traffic management.

Virgin explained that the download times for L and XL customers would not be restricted by downloading one TV show because the STM threshold for customers on those packages was higher at 800 MB for L customers and 3 GB for XL customers. They said L customers could download 60 songs or two TV shows, and XL customers 614 songs or nine TV shows, during peak time before they would reach the respective STM thresholds.

Virgin explained that the download times in the ad were calculated on the basis of customers who had not been subject to STM at any time of the day. They said they first established the size of a typical music track and TV show file, and then calculated how long it would take customers on each of their broadband speeds to download each file when all components in the process were working at optimal capacity. Virgin submitted a copy of the equation they used to calculate download speeds. They said the figures quoted in the ad were accurate when all components in the process were working at optimum capacity and argued that that was clearly stated in the footnoted text.

Virgin explained that STM was a way of managing excessive users on the network, and as such it was a constantly evolving policy that they adjusted from time to time so that the majority of their customers benefitted. They said, over the last two months, a small number of their customers had been subject to STM and they submitted data that showed the number of customers affected. Virgin said they were currently trialling a new STM policy, and also submitted data relating to the number of customers subject to STM under that new policy.

Assessment
Upheld
The ASA noted Virgin's argument that their STM system only focused on the heaviest users and was only active between the peak hours of 4 pm and 9 pm. We also noted that the data submitted by Virgin showed that a small proportion of their customers had been subject to their traffic management policy, and that that proportion of customers had been shown to decrease under the trial system. We understood that the song and TV show file sizes quoted in the ad should have been written in Megabytes (MB) rather than Megabits (Mb), and we welcomed Virgin's assurance that they would amend the ad accordingly. We also acknowledged that Virgin had offered to amend the ad to reflect that fact that it would take M package customers longer than 26 minutes to download a 30 minute TV show of 341 MB during peak hours, because in doing so those customers would automatically breach the M package traffic management threshold of 300 MB.

However, we considered that the ad clearly stated that an M package customer could "download a TV show", but that the ad did not make clear that the 26 minute download time was only possible during off-peak hours, or that by downloading one full TV show in peak hours customers would automatically be in breach of the download limits for the M package. We also considered that, although L package customers were able to download two TV shows in the time stated in the ad before reaching their download limit in peak hours, Virgin's traffic management policy was similarly restrictive for L package customers. We considered that one of the main objectives of the ad was to highlight the speed with which customers could download a TV show on all three of Virgin Media's packages and, in the absence of any clarifying text, readers were likely to understand that those speeds applied at all times. We considered that the text "Acceptable usage policy applies" did not make the peak time restrictions clear and it would not be unreasonable for readers to expect to be able to download at least one half-hour TV show on the M package, or several half-hour TV shows on the L package, during the five hours of the peak time period without breaching Virgin's traffic management system and having their speed capped. Because that was not the case we concluded that the ad was misleading.

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

Action
We told Virgin to make clear in future ads that download times would be restricted during peak hours. We advised them to seek guidance from the Copy Advice team when preparing similar ads in the future.

Adjudication of the ASA Council (Non-broadcast)