Background
Summary of Council decision:
Two issues were investigated, both of which were Not upheld.
Ad description
A press ad for BT, seen in February 2016, was headed "A few truths about Britain's broadband". It presented a number of claims regarding Britain's digital economy and BT's role under the headings "The Fiction" and "The Facts". Claims under the heading "The Facts" included "... Openreach's network is open to over 500 companies and their customers on equal terms" and "BT has invested over £20 billion in communications infrastructure over the last decade, including £10.5bn in Openreach's network”.
Issue
Broadband for Rural Devon & Somerset (B4RDS) challenged whether the following claims were misleading and could be substantiated:
1. "Openreach's network is open to over 500 companies and their customers on equal terms", because they understood that other Internet Service Providers (ISPs) did not have access to elements of the Openreach network; and
2. "BT has invested over £20 billion in communications infrastructure over the last decade, including £10.5bn in Openreach's network", because they understood that while Openreach’s profits had increased over the previous ten years, capital investment in the Openreach network had not shown a corresponding increase, and had instead remained relatively constant.
Response
1. British Telecommunications plc (BT) said the claim did not imply that third parties had access to all aspects of Openreach’s infrastructure, but that it stated clearly and unequivocally that over 500 companies could access the network on equal terms. They did not believe that readers would interpret the claim to relate to very specific technical aspects of Openreach’s infrastructure.
BT explained that, as established through a legally binding agreement with Ofcom in 2006, Openreach was run as a functionally separate division of the BT Group and that they were required to provide other telecoms operators with equality of access to the Openreach network. This meant that BT’s wholesale products (the underlying mass-market broadband services) were supplied through Openreach on an ‘equivalence of inputs basis’ to all providers, including BT Consumer and its competitors, and all providers received the same terms and conditions, and were served via the same Openreach systems and processes.
BT noted that their agreement with Ofcom did not require Openreach to make all aspects of its infrastructure available to third parties, but required Openreach to treat all communications providers, including BT Consumer, equally.
2. BT provided information from their latest annual reports showing the level of investment in the Openreach network. Their annual reports were compiled by external auditors in accordance with the relevant International Financial Reporting Standards and regulations. They noted that the reports included a reference to “Capital Expenditure” which was made up of ‘Property, plant and equipment’, and ‘Intangible assets’ (such as software licenses that allowed BT to operate technology within the network). BT noted that their published capital expenditure figures for Openreach over the previous ten years totalled just over £10.5 billion.
Assessment
1. Not upheld
The ASA considered that consumers were likely to understand the claim “Openreach’s network is open to over 500 companies and their customers on equal terms” to mean that Openreach’s network was utilised by a number of ISPs and that any ISP wishing to use the network could do so on the same terms as any other ISP. We did not consider that consumers were likely to interpret the claim as extending to issues beyond the provision of an equivalent service, such as access to Openreach’s infrastructure itself, or input into decisions regarding investment and expansion of the network.
We understood that BT had an agreement with Ofcom that required Openreach to treat all ISPs equally in terms of providing them with an equivalent service. Therefore, we understood that all ISPs who wished to use the network could do so under the same terms. Because we considered that consumers would understand the claim to mean that all ISPs had the same access to the Openreach network, under the same terms, and that was the case, we concluded that it was not misleading.
On that point, we investigated the ad under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
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), but did not find it in breach.
2. Not upheld
We noted that the claim appeared in response to “The Fiction” that “BT isn’t investing to improve Britain’s superfast network” and emphasised BT’s investment in communications infrastructure, including in Openreach’s network. We also noted that one of the preceding claims highlighted how BT was rolling out “fast broadband”, which was likely to be understood by consumers to mean BT was improving its network. In that context, we considered that consumers would interpret the claim to mean that BT had invested £10.5 billion into the Openreach infrastructure, to improve and expand the network, over the last ten years. We did not consider that consumers were likely to have any expectations regarding the proportion of Openreach’s income that that investment represented as a result of reading the claim.
We noted that the relevant annual reports confirmed that Openreach had invested just over £10.5 billion in “Capital expenditure” over the preceding ten years (2006-2015). Because of that, we concluded that the claim was unlikely to mislead.
On that point, we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), and 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), but did not find it in breach.
Action
No further action necessary.
