Claims on www.bethere.co.uk for three broadband packages appeared in three columns titled: "BE VALUE"; "BE UNLIMITED" and "BE PRO". Under each package was the claim "Unlimited usage". At the bottom of each column was a clickable link which stated "Who's this for?". Clicking it brought up a box with further claims which stated "BE Unlimited is for people who want the very fastest connection their line can handle with unlimited usage* and unmanaged access. Download as much as you want, when you want it and then download some more". Clickable text immediately below stated "*A very fair usage policy applies".
Three complainants, who understood that a fair usage policy applied, challenged whether the claim "Unlimited usage" was misleading.
Be Un Limited t/a BE said their service was unlimited but they also operated a fair usage policy (FUP), of which they provided details. They explained that, in practice, high data usage by individual BE members was identified through monthly reports covering all exchanges on their network. They focused their attention on exchanges where utilisation had reached greater than 80% of available capacity in the previous calendar month, because at that level there was highly likely to be congestion within the exchange and a consequent reduction in broadband speeds and service availability for their customers in that exchange. This information was cross referenced against any complaints of congestion received from BE members across the network.
BE said within each of the exchanges identified in that monthly report they listed all BE members whose data usage in the previous month had been greater than 150 GB. Experience had shown that, at that level of data usage, if an exchange was demonstrating symptoms of congestion, the individual member was contributing disproportionately to that congestion. They therefore invoked their fair usage policy in respect of such customers, triggering either an e-mail to the member, or a telephone call. Consequently they sent out e-mails to those people who have used more than 150 GB of data in a month on an exchange with more than 80% utilisation. In total they had sent out 224 e-mails in the past 12 months, but to put that in perspective, they had approximately 68,000 users. They sent these e-mails as a responsible provider of internet services to ask people with extremely high usage to limit that high usage at peak times. This was done in order to ensure that those users' high usage did not adversely impact on other users and was reflected in their FUP. They provided a copy of the e-mail they used and also the follow-up e-mail which was used if the customer's use did not change and which explained that the customer's service might be suspended if they did not restrict their usage at peak times. Two users had changed providers after being contacted as a result of the FUP in the last 12 months and BE provided details of each case. Both users had subsequently migrated to alternative providers under the standard industry switching process.
BE said, in summary, only two people had been found to be in breach of their FUP in the last 12 months because their excessive usage disrupted the network. They had not charged anyone extra fees, limited anyone's usage or suspended anyone's access automatically for excessive usage. Users were allowed unlimited usage and as such the "unlimited usage" claim was acceptable.
The ASA considered that the claim "unlimited" would be interpreted by readers to mean that they would be able to use the service to download and upload as much data as they wished at any time without limit or penalty.
We understood, however, that users on congested exchanges using more than 150 GB in a month would be contacted and asked to reduce their usage in peak hours or face having their service suspended; we noted two users had left BE after being contacted about the FUP and that a significant number had been warned to change their usage behaviour. We therefore considered that, although it affected only a small proportion of customers, the service was restricted for those using more than 150 GB in a month on some exchanges and was therefore not unlimited. As a result, we concluded that the claim "unlimited" was misleading.
The claim breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means. (Misleading advertising), 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) and 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification).
We told BE not to claim that their broadband services were unlimited.