ASA Bans UK ISP BE Broadband from Using Unlimited Downloads Claim

Internet provider BE Broadband (aka – BE Unlimited), which is now owned by BSkyB (Sky Broadband), has been told by the Advertising Standards Authority (ASA) that they can no longer claim to offer “unlimited downloads” after the ISP threatened to disconnect customers that make heavy use of their service.

The matter appears to stem from a situation that cropped up in February 2013 after BE allegedly terminated the service for one of its customers due to their “excessive” usage (here). The ISP are also known to have warned 224 users about similar usage concerns.

Today’s ruling by the ASA confirms that BE sent warning emails “to those people who [had] used more than 150GB of data in a month on an exchange with more than 80% utilisation” and two of those swapped ISPs after the warning. BE also said that it had NOT “limited anyone’s usage or suspended anyone’s access automatically for excessive usage“, although clearly two users felt as if they had been given no option but to leave.

Sadly customers affected by the situation, many of whom signed-up expecting a service that allowed them to “get what you want, without limits“, were initially given no clear indication about the level of usage that they should seek to maintain after the warning.

BE’s “Unlimited” Fair Usage Policy (May 2013 Extract)

“If it’s felt that any Be member’s Internet activities are so excessive that other members are detrimentally affected, Be may give the member generating the excessive web traffic a written warning (by email or otherwise). In extreme circumstances, should the levels of activity not immediately decrease after the warning, Be may terminate that member’s services.”

At the time such measures were deemed necessary by BE in order to combat the growing congestion problems on some parts of their national UK broadband network, which had even begun to cause capacity problems for O2 and a few of their wholesale partners (here).

However BE’s decision conflicted with the ASA’s new April 2012 rules concerning the use of “unlimited” terminology (here), which state that such wording can only be used if the customer incurs no additional charge or suspension of service as a consequence of exceeding a usage threshold associated with a Fair Use (FUP), Traffic Management or similar policy.

ASA Ruling (Ref: A13-221786)

The ASA considered that the claim “unlimited” would be interpreted by readers to mean that they would be able to use the service to download and upload as much data as they wished at any time without limit or penalty.

We understood, however, that users on congested exchanges using more than 150 GB in a month would be contacted and asked to reduce their usage in peak hours or face having their service suspended; we noted two users had left BE after being contacted about the FUP and that a significant number had been warned to change their usage behaviour.

We therefore considered that, although it affected only a small proportion of customers, the service was restricted for those using more than 150 GB in a month on some exchanges and was therefore not unlimited. As a result, we concluded that the claim “unlimited” was misleading.

As a result the ASA has ruled that BE can no longer promote their broadband service as being “unlimited“. Other ISPs have also been known to threaten disconnection and today’s ruling will no doubt give some of them a strong reason to review their promotions.

It’s worth pointing out that the new owner of BE and O2’s fixed line broadband business, Sky Broadband, has been offering “truly unlimited” downloads for the past few years and have also scrapped their Fair Usage Policy (FUP). So far BE has not yet adopted the same approach but no doubt Sky has the capacity to support it.

A spokesperson for Sky Broadband advised ISPreview.co.uk that BE’s situation occurred before it took over the reins, although they view the ASA’s intervention as helpful and called for “there to be absolutely transparency about whether unlimited claims come with any traffic management” (this is obviously a benefit to Sky’s own “truly unlimited” solution as well as to consumers).

Furthermore Sky also said that they’d made some unspecified changes to BE’s website but pointed out that, in the longer-term, this would become a moot point as customers should eventually be migrated over to their own “truly unlimited” platform.