Claims on the website www.plus.net, seen 20 January 2015, promoted broadband packages. Text stated “TOTALLY UNLIMITED” and “Unlimited downloads Truly unlimited broadband with no usage limits. Browse and download around the clock”.
The complainant, who understood that Plusnet imposed a traffic management policy, challenged whether the claim “TOTALLY UNLIMITED” was misleading and could be substantiated.
Plusnet plc stated that they did not impose any restrictions, exclusions or provider imposed limitations on the line speeds of their totally unlimited customers. Instead, they utilised traffic prioritisation to ensure that users with slower broadband connections got the best internet user experience. They said traditional traffic management slowed down a user’s connection speed during peak times and was imposed as a punitive measure when a customer had used up their allocated ‘quota’ of usage. They noted that according to CAP guidance on ‘Unlimited claims’, traditional traffic management was permitted on ‘unlimited’ broadband services as long as it was “moderate”. In contrast, traffic prioritisation did not slow down a customer’s connection speed, or limit the bandwidth below the maximum capacity, rather its purpose was to improve the service.
Plusnet said traffic prioritisation helped to prioritise different streams of traffic based on their relevance to the end user, i.e. they prioritised latency and time-sensitive traffic, such as Skype, over others, such as peer-to-peer (p2p) downloads, only when the individual’s service reached peak contention. They said peak contention was when the line to the customer’s house was busy because several people in the house were downloading at the same time. At peak contention Plusnet only deprioritised particular types of traffic if higher priority traffic required the bandwidth, and those calculations and allocations took place on a millisecond by millisecond basis as the usage of the line changed. Each type of traffic was given a minimum allocation of bandwidth, however, and no traffic was ever shut off. For example, p2p traffic’s minimum level was 5% of the available bandwidth.
They provided evidence, which they believed was reflective of typical usage, which demonstrated that if a household subject to traffic prioritisation included an individual streaming a film and trying to download a 100 MB file from a p2p network at the same time, the download could take up to 30% longer than if the connection was solely being used for the p2p download. They stated that with traffic prioritisation customers would have sufficient bandwidth to stream the film to an acceptable level of quality, while without traffic prioritisation the user would not have adequate bandwidth to stream the film at all.
They emphasised that traffic prioritisation did not result in a reduction in a customer’s line connection speed. Plusnet referred to the Ofcom UK fixed-line broadband performance report, November 2014, which they believed showed that their average download speeds during weekday peak periods were comparable to the speeds achieved for the full 24-hour period, indicating that they did not slow down customers’ line speeds at peak times. They also gave the example of a household where one individual was downloading a large file and another was using Skype. They said with most providers, in that scenario, the Skype call would be of very poor quality throughout the duration of the download. However, with a Plusnet connection, priority would be given to the Skye call, but the speed of the broadband connection would remain constant.
Plusnet believed that if traffic prioritisation was not permitted on an “unlimited” service, it would give rise to a confusing situation where providers offering “unlimited” broadband would be permitted to slow down a user’s overall connection speed, while providers applying traffic prioritisation, but not slowing down a customer’s overall connection, would not be permitted to refer to their service as “unlimited”. They said removing traffic prioritisation would have more than a “moderate” impact on some consumers’ overall internet user experience, especially those who had purchased lower broadband line speeds.
The ASA noted that CAP guidance made clear that “unlimited” claims were likely to be acceptable if provider-imposed limitations that affected the user’s speed or usage of the service were moderate only and were clearly explained in the marketing communication. We considered, however, that a “totally unlimited” claim was stronger, and that consumers would understand it to mean that the service was free from any provider-imposed limitations.
We understood that Plusnet applied a traffic prioritisation policy, which impacted those customers who reached their maximum bandwidth, to prioritise time-sensitive traffic and maintain a high quality experience for individuals engaged in those activities. We noted that, contrary to typical forms of traffic management, the overall line speed delivered to a household was not impacted by traffic prioritisation. In addition, “de-prioritised” activities were always allocated bandwidth, in accordance with a set minimum requirement, and were never stopped completely. Regardless of that, however, we considered that the mandatory prioritisation that Plusnet applied, including set allocations that determined the minimum bandwidth dedicated to particular activities when demand was high, still constituted a provider-imposed limitation on a customer’s usage. Therefore, we considered that the traffic prioritisation policy Plusnet implemented was contrary to a customer’s understanding of a “totally unlimited” claim.
Plusnet did not provide user test data to demonstrate the impact on individual users within a household when subject to traffic prioritisation. However, the information provided regarding their service’s average speed and the minimum bandwidth allocations, indicated that the impact could be significant for those attempting to carry out “de-prioritised” activities such as p2p downloads while another user was carrying out a “prioritised” activity such as streaming. For example, we understood that if higher priority traffic was using the full capacity of the line and traffic prioritisation applied, Plusnet would allocate up to 95% of the capacity of the line to the higher priority traffic. p2p traffic’s minimum running capacity would therefore be 5% and so the p2p download would take 20 times as long as if the connection was solely being used for a p2p download. We noted that this represented the maximum slowdown that individual users could experience and that a customer’s line speed remained constant when traffic prioritisation was applied. We also noted that if a customer attempted to carry out the p2p download and other activities on a line at its full capacity, which was not subject to traffic prioritisation, the p2p download would also be slowed by the inherent limitations of the network. Further, we understood that the policy protected a user from a poor experience because of the influence of concurrent bandwidth heavy activities within the same household, as opposed to other users elsewhere on the network. Therefore, in the context of Plusnet’s traffic prioritisation policy, we considered that the reduction in speed experienced by consumers subject to the policy was moderate only and consistent with consumers’ understanding of an “unlimited” service. We considered, however, that the policy needed to be clearly explained in the marketing communication so consumers could make an informed choice as to whether the service, and the policy of hierarchical prioritisation in place, would be suitable for their own and their household’s needs.
We noted that the claims were not asterisked or qualified in any way. While there was information on the “Support” pages regarding the policy, we noted it appeared under the heading “How traffic management works” and did not make clear that it was traffic within an individual household that would be prioritised. Therefore, we did not consider the ad made clear that a traffic prioritisation policy existed, how it was applied, or the likely impact for customers.
While we considered that Plusnet’s traffic prioritisation policy was consistent with a service described as “unlimited”, because we considered that the policy had not been adequately explained in the ad, and was contrary to consumers’ understanding of a service described as “totally unlimited”, we concluded that the ad was likely to mislead.
The ad 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) 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).
The ad must not appear again in its current form. We told Plusnet plc to describe their service as “Totally unlimited”, only if there were no provider-imposed limitations to the service and to explain clearly any limitations they applied to their "Unlimited" service.