Two press ads and claims on the website, www.virginmedia.com:
a. The first press ad stated “Half price for 6 months ... Our new Essential Collection ... Up to 30Mb ...”.
b. The second press ad stated “TV, broadband and calls Half price for 6 months ... Our new Essential Collection gives you all the entertainment you need, all included ... Broadband and calls ... Up to 30Mb fibre optic broadband - 4x faster than UK average ... Download and browse as much as you like, no caps, no hidden charges”. Small print stated “Acceptable use policy applies. Traffic management operates from 4pm to 9pm and 10am to 3pm to ensure consistent user experiences”.
c. Claims on various pages of the “Broadband” section of the website stated “Up to 30Mb Small households and couples, Up to 60Mb Perfect for families, 100Mb The ultimate experience ...”.
British Sky Broadcasting (Sky), British Telecommunications plc (BT) and one member of the public challenged whether the “up to” claims in ads (a), (b) and (c) were misleading, because they understood that customers received speeds significantly lower than the stated maximum speeds, due the advertiser’s traffic management policy.
Virgin Media Ltd (Virgin Media) said Ofcom’s reports from February and May 2012 on UK broadband speeds and their own speed test data demonstrated that the download speeds achieved by their customers were very close to, or more than, the numerical maximum speeds stated in ads (a), (b) and (c). They also said, in accordance with the CAP Help Note on Use of Speed Claims in broadband advertising, at least 10% of their customers received more than the advertised numerical maximum speeds. They submitted various tables taken from the Ofcom reports that showed the average speeds achieved by customers for various “up to” products, including those “up to” 30 Mb, 60 Mb and 100 Mb. They also submitted a table that related to their own tests which they said used the same technology that was used by Ofcom’s technical partner. It related to download speeds and demonstrated that, based on a 24-hour average speed, at least 10% of users achieved more than the numerical maximum speeds. They believed their test results, alongside the Ofcom reports, demonstrated that for each of their “up to” packages the average speeds achieved by 10% of their customers were greater than the advertised maximum speeds.
They said their traffic management policy had the goal of ensuring a consistent download experience for all Virgin Media broadband users, and was designed to ensure that their traffic-managed users could still continue to conduct lawful online activities. They managed downstream traffic daily between 10am and 3pm and 4pm and 9pm, and said that this impacted on average 2.3% of their broadband customers per day. For example, they said a customer on the 60 Mb service could download 5 GB between 4pm and 9pm before they were traffic managed and that during that time they would have to download seven standard definition movies or 1,250 songs before the temporary speed reduction of 50% was applied for five hours, during the period of traffic management. They also said traffic-managed users on their slowest advertised broadband tier of 30 Mb would still receive 15 Mb which was more than sufficient to continue normal online activities such as web browsing and streaming without interruption, and was faster than the average UK broadband speed. They indicated that web browsing and streaming would be unaffected and that downloading would continue but at a reduced rate.
They said their traffic management policy only impacted a small minority of the very heaviest of their users, whom they believed were technologically informed individuals, aware of traffic management policies, and therefore not average consumers. They believed that their traffic management policy was not a significant factor that impacted the average consumer and that their “up to” claims did therefore not require qualification.
The ads stated "up to" and the ASA considered that this made clear that the claims related to the maximum achievable speeds for each package. The Ofcom reports and Virgin Media’s own speed test data demonstrated that the maximum speeds of 30 Mb, 60Mb and 100 Mb were achievable, on average, for the vast majority of the relevant customers, well above the minimum 10% required. Virgin Media’s traffic management policy reduced download speeds by 50% and upload speeds by 75% if users exceeded a certain threshold for the particular package, during two five-hour periods in any 24 hours. However, only a very small proportion of customers had their speeds reduced as a result of exceeding those data thresholds and, even during periods of traffic management, they were able to continue web browsing and streaming as normal and continue downloading and uploading at a reduced rate. Moreover, if they reduced their use back below the appropriate threshold, they would revert back to their maximum speeds in the following 24-hour period. We therefore considered that the "up to" claims were not misleading and that the condition of Virgin Media's traffic management policy that reduced users’ speeds if they exceeded a certain data threshold, was not likely to affect consumers’ decision to purchase any one of the three products.
We investigated the ads 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 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification) but did not find it in breach.
No further action necessary.