A circular, for Virgin Media's fibre optic cable services, was headlined "We've already connected [street name]. So it's really easy to turn you on". Further text included "Dear Householder We've already done all the hard work and connected your street to our state-of-the-art fibre optic cable. In fact, you may have seen Virgin Media vans driving around your area. We've done the checks for you and you're ready to go. So it's easy to turn you on to a world of entertainment … All the hard work's already been done. We've connected your street, run the checks and you're all ready to go. In fact, all you have to do is pick up the phone. Call today, and we'll arrange a time for an engineer to pop round, install everything and show you how it all works …". Small print included "SERVICES AVAILABLE IN VIRGIN MEDIA CABLED STREETS ONLY. Subject to network capacity, status and credit checks. In limited cases, cabling may not extend from the street to individual premises. A survey will confirm this as soon as possible after enquiries being made. Check if your home's connected at virginmedia.com …".
The complainant challenged whether the claims that his street was connected to fibre optic cable were misleading and could be substantiated, because he understood that was not the case.
Virgin Media said the mailing was sent only to consumers within their network area. They said premises in the same street had at some point had their services, which confirmed they were on the cable network. They said their sales system showed that the complainant's address could receive broadband and digital TV but the address had been marked as 'unserviceable' on their postcode checker, because it could not also receive telephone. They said it might be that there were unexpected construction issues that prevented the phone service being provided and they had therefore chosen not to make the services available for sale to that address. They said the problem had arisen as the result of a technical issue with their sales system and they would now make changes so that direct mail would be sent only to addresses that were shown as 'serviceable' both on their sales system and postcode checker.
Virgin believed the average consumer would not be misled by the mailing but would be aware of the manner in which Virgin Media services would be delivered to their properties and would therefore understand that while the area was connected to the Virgin cable network, there would be very rare occasions where a property could not be connected due to unforeseen circumstances. They pointed out that the small print in any case stated that in limited instances cabling might not extend from the street to individual premises and that a survey would be carried out. Virgin said they understood the complainant would have been disappointed but there were a very small number of properties that could not be connected and, given the explanation in the small print and the average consumer's understanding of Virgin's products and services, they would not actually be misled. Virgin also believed the small print did not contradict the claims and said the average consumer would understand that there were certain exclusions even to definitive statements. They believed the average consumer would understand that Virgin Media would conduct checks on a property but that there would be very rare occasions when providing cabling to certain properties within a cabled area was not possible.
The ASA acknowledged that Virgin Media now intended to send the mailings only to addresses that received the services. We noted, however, that the ad included text such as "We've already connected [street name]. So it's really easy to turn you on … We've already done all the hard work and connected your street to our state-of-the-art fibre optic cable … We've done the checks for you and you're ready to go. So it's easy to turn you on to a world of entertainment … All the hard work's already been done. We've connected your street, run the checks and you're all ready to go. In fact, all you have to do is pick up the phone". We considered the ad would be understood to mean the recipient could receive Virgin Media services. We noted the ad included the small print "SERVICES AVAILABLE IN VIRGIN MEDIA CABLED STREETS … In limited cases, cabling may not extend from the street to individual premises. A survey will confirm this as soon as possible after enquiries being made. Check if your home's connected at virginmedia.com …" ,however, we considered that contradicted, rather than clarified, the impression given by the claims that the recipient's property was ready to receive the advertised services. We noted that was not the case and therefore concluded that the ad was misleading.
The ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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).
The ad must not appear again in its current form. We told Virgin Media to ensure they did not in future state or imply that consumers were likely to be able to obtain their services if that was not the case.