Claims on BT and Openreach (a BT Group business) websites:
a. Claims on the Openreach website www.superfast-openreach.co.uk stated, "Superfast Fibre Broadband Where and when Are you in a superfast area? Use our new postcode checker to see the superfast status of your area". On entering a postcode, the results box stated "Status: Coming Soon Forecast date: [date] Forecast dates are estimates only and are subject to change".
b. Claims on the BT website www.bt.com stated, "To enjoy our fastest broadband speeds, check to see if you can get BT Infinity". On entering details in to the availability checker, the results box stated "Sorry fibre optic BT Infinity isn't currently available at your property. Fibre optic broadband is estimated to be in your area between [date] and [date]. Please note these dates have been provided by our supplier and are estimates. Dates may be subject to change due to factors outside our control such as; delays agreeing cabinet locations with your local council or unforeseen issues encountered during the construction of your street cabinet".
Three complainants challenged whether the estimated dates in ads (a) and (b) were misleading and could be substantiated, because in their experience the quoted dates were frequently put back.
Openreach explained that, although a part of the BT Group, they were a functionally separate part of the BT business. They looked after the 'first mile' of network and were responsible for all the apparatus and street furniture. These included cabinets and poles from the premises of a consumer or business to the telephone exchange used by Openreach to make access services available to all communications service providers in the UK, not just BT.
Openreach said they were responsible for the roll-out of Superfast Fibre Access network across the UK. The scale and scope of the issues in a network upgrade of that size created its own issues and some customers might be disappointed that Openreach could not reach them as quickly as other areas. In order to provide their Fibre to the Cabinet (FTTC) services, it was necessary for a cabinet to be erected in addition to the existing copper cabinet (to house the necessary equipment) and for electricity to be installed to that cabinet.
They provided up-to-date information to all service providers regarding the deployment of the Superfast Fibre Access network. The information was to some extent forward looking, but they believed that the expectations were nonetheless reasonable and as accurate as could be at the time of publication. However, there were a number of factors that contributed to the roll-out of the Superfast Fibre Access programme and ultimately it was not feasible to replace the entire copper network with fibre or to reach every location. Sometimes the issues impacting roll-out would change or issues, which had not previously been appreciated, would arise.
Openreach explained that the deployment of fibre cabinets was a complex engineering challenge that involved not only provision of the fibre, but availability of power connections, planning consent for the cabinet itself, possible road closures, traffic management permissions as well as space within their duct network to make the necessary connections. In some case, they encountered unexpected problems, which took time to resolve and might delay the cabinet for some months. The vast majority of those delays were caused by either power provision, as they could not utilise domestic supplies, or street lighting power sources and local planning permission. In order to minimise such delays, they worked with power companies and local authorities. They were also reliant on outside resources keeping to their delivery promises.
They communicated the roll-out of Superfast Fibre Access to consumers through their "Where and When" checker, which was designed to help people see the status of the programme at their home or business. Because, for the reasons stated above, they were not always able to meet the timescales for deployment, they said they made clear on the website that all dates were the best forecast possible, based on information available to them at that time. They recently improved the roll-out information available on the checker and continued to monitor its effectiveness and efficiency. The information included, where relevant, delay reason codes at cabinet level, when a date changed or when a cabinet was removed from the programme.
Openreach said they set the initial estimated forecast dates using a complex timeline, building in reasonable allowances for all the associated activities they anticipated would be required. They also included extra time for unforeseen circumstances. In 'at risk areas' an additional three months was added to the estimated ‘ready for service’ dates. On those occasions when delays occurred because of circumstances outside their direct control, they would initially push the advertised estimated date back by three months, unless they had specific data which meant they could provide a shorter period. This would be based on the input of data from within Openreach and also from third parties. If it then became apparent that it would not be possible to continue, because, for example, planning permission had been refused or power could not be connected, they would remove the deployment date from the checker. They explained that in those situations where multiple date changes were likely to happen, a cabinet would be moved to the end of the Superfast Fibre Access programme. If the issues could not be resolved the cabinet would be removed from the programme. They said they were unable to provide information regarding the percentage of the success rate of putting cabinets into service by either the original date advertised or by revised dates, where applicable. They also said that as part of their normal review process, dates may be brought forward in which case they would update the checker with the new, improved, date as soon as possible.
BT Consumer explained that they were reliant on Openreach, a functionally separate organisation to BT Consumer, for the fibre activation dates that they displayed on their BT Infinity availability checker. They were therefore unable to comment on why individual dates might change. However, they believed that their availability checker made clear to consumers that the dates displayed were not guaranteed. The results page stated the dates were estimated provided by a separate supplier and might change due to factors outside their control.
The ASA understood that Openreach was responsible for the roll-out of the Superfast Fibre Access network across the UK and all communication service providers, including BT Consumer, were reliant on the estimated activation date information provided by Openreach.
BT Consumer operated separately to Openreach. They therefore had no additional knowledge or input in to how specific dates were estimated, and used the information that was provided to them by Openreach. However, because they had integrated that information into their own marketing, we did not consider that the disclaimer which stated that the estimated dates were provided by their supplier absolved them of their responsibility to ensure that Openreach, as the provider of the fibre broadband infrastructure, had a robust process in place for calculating those estimates.
Both the Openreach and BT Consumer websites stated that the forecast dates were estimates and we therefore considered that consumers would understand there was a possibility that those dates might change, but that they would be based on a robust method of calculation. We were satisfied from the information provided that the initial advertised estimated availability dates were based on a sound calculation by Openreach of the timescales likely to be involved in providing the FTTC. We therefore considered that, taking into account the disclaimer presented in both ads, the presentation of the initial estimated delivery dates was not misleading.
Although both ads contained disclaimers that the dates were estimates, we considered that consumers would still expect those estimates to be robust, including when those dates were revised following the initial estimate. We acknowledged that, because of the type of work being carried out, unforeseen issues, as well as the reliance on the cooperation of external parties, would sometimes cause delays and therefore the initial advertised dates might not be met. We understood that when that happened, the forecast date rolled back three months. If the problem was not resolved, the date would roll back by another month. While we acknowledged that it was Openreach's intention to resolve the delay as quickly as possible, we considered that, as with the original date, the revised date needed to be based on a robust calculation of the time it was likely to take, rather than simply adjusting the date until the service was available or abandoned.
We considered that, although the original advertised dates were based on a likely estimated timescale to completion, the revised dates were likely to mislead consumers, because they were not based on an analysis of how long the delays might possibly take. We therefore concluded that the revised dates presented on both availability checkers were misleading.
The ads breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation).
We told Openreach to ensure that estimated dates displayed on their checker were based on a robust calculation, and were not routinely rolled back without specific information being taken into account. We told BT Consumer not to display estimated dates on their checker unless they could substantiate that Openreach, as the provider of the fibre broadband infrastructure, were using a robust method to calculate those dates.