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ASA UK Bans Virgin Media Unlimited and No Caps Broadband Claims Again

Wednesday, October 30th, 2013 (12:18 am) - Score 1,498
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The Advertising Standards Authority (ASA) has once again banned two Virgin Media broadband adverts for promoting “unlimited downloads” with “no caps” on data usage because the ISPs Traffic Management Policy (TMP) was found to contradict this by imposing an “immoderate” restriction on customers service speeds.

The situation follows an almost identical ruling against the ISP on 27th March 2013 (here), which forced Virgin Media to only impose restrictions on Internet traffic that were “moderate” or non-existent. At the time Virgin were reducing the download speeds of some customers by -50% and the ASA described this as “not moderate“. Shortly after that Virgin reduced its throttle to a max of -40% and the policy has since been changed several more times (here).

The original ruling stemmed from the ASA’s 2012 rule change (here), which now requires that terminology like “unlimited” 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 Usage, Traffic Management or similar policy. Crucially any restrictions that are imposed must be both “moderate” and clearly explained.

Unfortunately it now looks as if Virgin’s quick-fix (i.e. reducing the download throttle to -30-40%) was not enough to avoid the ever watchful eyes of the advertising watchdog, which following a string of 20 consumer complaints, and a moan by rivals BT and Sky Broadband, has flagged up two more adverts (i.e. on the “broadband” section of Virgin’s own website [a] and a press promotion [b]) for the exact same problem. For its part Virgin Media felt as if their related “unlimited downloads” and “no caps” claims were NOT misleading.

The result is one of the longest ASA adjudications that we’ve ever read and an outcome that could have significant repercussions for other ISPs that use a similar Traffic Management approach to the one adopted by Virgin Media. Below can be found a brief summary of the outcome for each advert but we strongly recommend reading the full ruling to get the complete context.

ASA Ruling (REF: A13-227329)

1. Upheld (“unlimited” claim)

We therefore considered that a TMP which saw speed reduced by 30% (with the potential of a maximum 40% reduction) was not moderate. Ad (b) referred to the TMP which explained that “heaviest users’ download speeds may also be affected by traffic management measures from 4pm to 9pm and 10am to 3pm”. However, because we considered the restriction was not moderate, we considered the reference to the TMP in the small print was likely to contradict, rather than clarify, claims that the service was “unlimited”. For those reasons, we concluded the “unlimited” claims in ads (a) and (b) had not been substantiated and were misleading.

2. Upheld (“no caps” claim)

In addition, the claim “Unlimited downloads. Download and browse as much as you like with no caps …” was likely to be seen by consumers to mean that there were no provider-imposed limitations on their ability to carry out those activities. Although there was not a ceiling on the amount of data Virgin Media customers could download, a provider-imposed limitation on their service nevertheless applied. Because that limitation affected their experience of using the “unlimited” service in a way that was contrary to their expectations, we concluded the claim “no caps” in the context of an “unlimited” claim was misleading.

As a result the ASA banned both adverts and told Virgin Media “not to claim their services were ‘unlimited’ and with ‘no caps’ if they imposed restrictions that were more than moderate“, which has already forced the ISP to change their policy again.

However the question over how a broadband ISP should actually define “moderate” remains somewhat difficult to answer. The ASA’s ruling might admittedly narrow the possibilities but it’s not specific and this has no doubt left Virgin to scratch their heads for an answer.

Clearly they didn’t have to scratch for too long because their traffic management policy has already been changed by reducing the throttling of download speeds to a level that is hardly noticeable anymore (here). Sadly upload speeds continue to suffer from a strong reduction (-65%).

Joe Lathan, Broadband Director at Virgin Media, told ISPreview.co.uk:

The ASA has finally clarified what it believes to be moderate traffic management so we’re updating our policy and millions of UK homes continue to do more with Virgin Media than with any other provider thanks to our unbeatable, superfast broadband. However, it makes little sense to set the bar at 16% while our competitors routinely deliver speeds 50% slower than they claim.”

As a side note Virgin Media states that 95-97% of their broadband customers “won’t be affected at all by traffic management” because this is “only applied to a small minority of customers downloading and uploading the largest files during those peak times“.

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By Mark Jackson
Mark is a professional technology writer, IT consultant and computer engineer from Dorset (England), he also founded ISPreview in 1999 and enjoys analysing the latest telecoms and broadband developments. Find me on Twitter, , Facebook and Linkedin.
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