Cityfibre Lose Case Against “Misleading” Fibre Broadband ISP Ads

The UK High Court of Justice has today dismissed Cityfibre’s Judicial Review of the Advertising Standards Authority’s decision to allow slower “part fibre” (hybrid fibre) ISPs to use “fibre” terminology in their broadband adverts, which Gigabit capable “full fibre” (FTTH/P) providers have long felt to be “misleading“.

Officially the dispute can be traced all the way back to 2008, when the ASA made a decision to allow so called slower “hybrid fibre” or “part fibre” services (e.g. FTTC, G.fast or HFC DOCSIS networks that combine fibre with slower metallic copper or aluminium wires) to use the same wording as pure “full fibre” (FTTH/P) ISPs that take the optical fibre cable all the way to your home or office.

Pure fibre optic ISPs can deliver significantly faster speeds (multi-Gigabit or even Terabit speeds) than metallic cables and are generally much more reliable, particularly over long distances. Experiences do vary, depending upon the network setup and length of the line, but generally there’s a huge difference (Will the real fibre optic service please stand up?).

In the past few paid attention to this debate, which is partly because FTTP/H networks barely even existed, but today such operators are in a race to deploy pure fibre services out to millions of UK premises (see our summary). As a result it has become vital for ISPs to be able to highlight the advantages of a pure fibre vs part fibre line, which is much more difficult when your part fibre rivals can use identical terminology.

Last year the ASA finally, under a lot of pressure, agreed to review the situation but in the end they only recommended minor tweaks (here). In its conclusion the ASA claimed that “fibre” wasn’t a priority identified by consumers when choosing a package; that consumers did not notice “fibre” claims in ads and that they saw it as a shorthand buzzword to describe modern fast broadband.

Overall consumers told the ASA that they did not believe they would change their previous decisions, even after the differences between those and broadband services that use fibre optic cables all the way to the home were explained to them.

Naturally Cityfibre, which has built multiple Fibre-to-the-Premises (FTTP) style networks across the UK, disagreed and argued the “research and logic that lead to the [ASA’s] decision was fundamentally flawed” and that it encourages slower part fibre ISPs to “mislead consumers.”

In response they fought a legal battle in the UK High Court (Cityfibre’s challenge focused upon whether the advertising watchdog followed the correct legal approach in reaching their conclusion) and in June 2018 secured a Judicial Review against the ASA’s position (here). Hyperoptic also supported Cityfibre in the case.

The ASA was then given a chance to have their say and today the court made its ruling, albeit by finding in the ASA’s favour.

ASA Statement

“We welcome the Court’s decision which finds in the ASA’s favour on all grounds and dismisses CityFibre’s arguments.

The review of the evidence we undertook to arrive at our position on the use of the term “fibre” to describe part-fibre services in ads was based on robust methodology and open minded analysis of all of the arguments.

The process we followed to test if the average consumer is being misled by the use of the term “fibre” to describe part-fibre services is the one we have used to protect UK consumers from misleading advertising for many years and we are pleased that the Court has supported our approach after a hard fought legal process.”

The move will come as a blow to Cityfibre and their supporters in the campaign, although we suspect it may not halt their drive for a change in approach. The outcome has only just come in and as a result we expect to update again later with more comments and details from the case.

Admittedly it would have proven very difficult to unpick something that has long since become established into the consumer subconscious, where the meaning of “fibre” has been diluted over a decade of use (or misuse) by slower hybrid (part) fibre services.

UPDATE 11:52am

After a bit of hunting around we’ve been able to find the case document, although it’s a heavy read and focuses more upon how the ASA arrived at their decision (i.e. the research base and interpretation) than debating the differences between technologies.

UPDATE 12:47pm

We now have Cityfibre’s response.

Greg Mesch, CEO of CityFibre, said:

“We are disappointed by today’s result because we continue to believe it is not right for consumers to be misled into thinking copper-reliant connections are ‘fibre’ broadband. The decision is particularly disappointing in light of the recent progress made in other countries which have restricted misleading advertising and established clear rules to distinguish full fibre from inferior copper-based services. We are currently considering appealing the judgement and would like to thank the thousands of people that joined our campaign and signed our petition for change.

Full fibre infrastructure is being deployed at pace in the UK and will soon be within reach of millions of consumers. We welcome the Government’s recognition of the need for clarity in broadband advertising to ensure consumers can make an informed choice. We are also encouraged by DCMS’s focus on this critical issue in its proposed Statement of Strategic Priorities. The technical benefits of full fibre infrastructure are unquestioned and we will continue to work closely with DCMS, Ofcom and the ASA to ensure consumers are able to distinguish full fibre networks from copper-based alternatives.”