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Cityfibre Lose Case Against “Misleading” Fibre Broadband ISP Ads

Monday, April 15th, 2019 (11:04 am) - Score 6,503
copper vs fibre coppersaurus

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.”

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Mark Jackson
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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61 Responses
  1. Avatar AndyC

    I now look forward to ADSL being called fibre due there being something like 1m of it connecting a block in the exchange to the network core.

    Maby the FTTH providers could start calling their networks “pure fibre” or even “complete fibre”

    • Avatar MikeW

      “Fibre to the X” is a long-standing term within telcos to describe use of fibre within the access network, not the core network. Predating even Virgin’s 2008 advertising campaign.

      “Fibre inside the exchange to the ADSL rack” has, for some unknown reason, not caught on yet.

  2. Avatar Lyncol

    Why not keep it simple. It’s either Fibre or it’s Hybrid Fibre.

  3. Avatar Joe

    Mark: As you may be aware but many reading here will not; this case is not really about the technical merits of the fttc/fttp naming but but was about the basis on which ASA made its judgements Cf had effectively to prove that the decision was so irrational that no reasonable body could have made it. Thats such a high hurdle that the ASA will usually win.

    • Avatar MikeW

      Indeed. The case was always almost certain to fail for this very reason … ASA went through a reasonable process to reach their answer, and that’s all that matters.

      Still, it has given CityFibre a bunch of free PR over the months, and lets a whole bunch of scallies re-argue the same old stuff for years more.

  4. Avatar GNewton

    Just wondering: Could an appeal be made to the European Court of Justice (ECJ) ?
    Os is this the end of the story, and UK consumers will continue to be mislead by false fibre-broadband adverts?

    • Avatar Joe

      Still domestic appeals. Don’t see ECJ has any jurisdiction on this point of law but its not stopped them in the past.

    • Avatar CarlT

      The ECJ/CJEU cannot overrule a member state’s courts on anything bar matters of EU law and even then ECJ judgments are subject to interpretation by member states’ courts. Subsidiarity: member states are the keepers of their own laws, the ECJ the last keeper of EU law.

      Member states’ courts decide if a case goes to the ECJ, however there are some circumstances when, by treaty, they are obliged to do so.

    • Avatar Joe

      Thats the theory Carl but not always the reality. The ECJ has preoved very activist/expansionist in its interpretation.

    • Avatar Matthew Appleton

      Neither assertion above about the ECJ is accurate.

      In relation to this case if the Appelant is given ‘leave to appeal then an application can be made to the next appellate court above, but must be made on a point of law and not as to the content of the trial itself. The ECJ is an appalete court above our own domestic highest appalete court, the Supreme Court.

      What is accurate is that a JR is about the examination of whether an authority has acted properly and not ultra vires. In this case the Administrative Court has ruled not.

      And that is notwithstanding the bizarre nature of taking a Regulator to trial at some expense, I suspect with costs presumably being awarded to the appellant for the use of a noun and the varied use thereof!

    • Avatar CarlT

      Corrections welcomed – thank you.

    • Avatar GNewton

      “but must be made on a point of law and not as to the content of the trial itself”

      Does this include consumer protection laws, such as

      – Consumer Protection from Unfair Trading Regulations 2008
      – Misrepresentation Act 1967
      – Supply of Goods and Services Act 1982
      – or others

      ?

  5. Avatar Roger Cashmore

    @AndyC is right. Time to call FTTP “Pure Fibre” or similar. (“Complete Fibre” reads a little like a strap line for an All Bran advert.)

  6. Avatar Graham Long

    France got it right in 2015. https://www.ispreview.co.uk/index.php/2015/07/france-rules-against-misuse-of-fibre-optic-broadband-in-isp-adverts.html Today, four years later, the UK’s High Court gets it very very wrong. Very sad that UK consumers who don’t know the difference between fibre and copper determine how fibre is advertised. The UK will obviously stay bottom of the Euro fibre league for the foreseable future. https://www.ispreview.co.uk/index.php/2019/03/uk-finally-joins-2019-ftth-ultrafast-broadband-country-ranking.html

    • Avatar Ivor

      Not sure what marketing terms have to do with long term strategic rollouts, or the UK’s position in worldwide FTTH rankings, though.

      Openreach want to do more FTTP and are looking at retiring copper to make it financially practical. They aren’t doing it because there was a threat that their CP customers could no longer call FTTC “fibre”, they’re doing it to support higher speeds and so that their CP customers can keep up with the likes of Virgin.

      If users want speed, they’ll seek it out and pay for it, regardless of the marketing term slapped on it, and regardless of the underlying technology.

  7. Avatar Graham Long

    Most people don’t know the difference between a virus and a bacterium. Does Mr Justice Murray’s ruling allowing copper broadband to be advertised as fibre mean it is irrelevant whether drug companies advertise their medicines as being effective against bacteria or viruses or both? If the ignorance of the consumer is the primary determinant in deciding how things are advertised then we are all doomed!

  8. Avatar TheFacts

    Slight feeling that some of those who commented above would not be interested one bit if their cabinet had been upgraded a few years ago to FTTC.

  9. Avatar Jamie

    The Coppersauras lives on!

    Is anyone else drawing comparisons between Greg Mesch and John Hammond (Richard Attenboroughs character in Jurassic Park) about half way through the film?

    • Avatar Andrew

      I’m guessing it’s cost a fortune in legal fees too. Similar to the cost of building Jurassic park methinks.

  10. Avatar chris conder

    The ASA is a disgrace. Shame on that useless quango. It isn’t fibre broadband unless it is fibre to the home. Dial up can now be classed as fibre broadband.

    • Avatar Ivor

      I can buy 30Mbps “fibre” from Gigaclear if I lived in the handful of properties they serve. It is of course FTTH by default.

      I can buy 40Mbps “fibre” from BT, regardless of whether Openreach has deployed FTTC or FTTH in my area. Let’s say I have an average copper line that can support that service.

      Tell me, what’s the practical difference between them, in your eyes, that means one can be called “fibre” and the other can’t?

    • Avatar FibreFred

      “Dial up can now be classed as fibre broadband”

      No it can’t

    • Avatar GNewton

      “Tell me, what’s the practical difference between them, in your eyes, that means one can be called “fibre” and the other can’t?”

      You can upgrade to 100 Mbps, or even to near 1Gbps with fibre. Fibre offers a more reliable service. It can support symmetric speeds. Just to name a few.

    • Avatar Ivor

      @GNewton

      Answering the wrong question. I am asking what the practical difference between two real world products is. I wasn’t asking about what ifs.

    • Avatar JamesMJohnson

      Stability… FTTC is affected by atmospheric noise, cross-talk etc… resulting in jitter, latency spikes and even complete drops and resyncs.
      This is observed as ‘rubber-banding’ in games, distortion/echo in VoIP (important considering the incoming phone changes) and a sub par service.
      FTTP is less prone to these issues (being if you experience them it’s not due to the technology used).

    • Avatar FibreBubble

      Can’t help thinking that the B4RN spokesperson’s hate campaign is very damaging to their brand and neither inspires anyone to invest in the sluggish crowd-funder or improving the Thinkbroadband connection quality ratings.

    • Can’t help thinking that the B4RN spokesperson’s hate campaign is very damaging to their brand and neither inspires anyone to invest in the sluggish crowd-funder or improving the Thinkbroadband connection quality ratings.

      An interesting PoV, although this doesn’t appear to be supported by the evidence of their historic progress, otherwise they wouldn’t have connected well over 5,000 homes and raised millions in investment so far. Likewise only a very few people pick up on the comments made in news articles and for most it will be inconsequential.

  11. Avatar FibreFred

    “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”

    And this is why the CityFibres argument loses and the ASA wins.

    I’ve been saying the same for ages.

    • Avatar JamesMJohnson

      You’re right… they wouldn’t change their mind because it’s still the best they could get.
      However… if they had the option of “fibre” or fibre then they probably would and this, I believe, is the core issue of the complaint.

  12. Avatar GNewton

    I think the article summarizes it correctly:

    “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.”

    Basically, it’s an illusory truth effect (also known as the validity effect, truth effect or the reiteration effect) which is the tendency to believe information to be correct after repeated exposure.

    • Avatar FibreFred

      So you are telling me that over the years, people have come to believe that they have had fibre delivered to the premise when ordering FTTC or Virgin cable? Even knowing full well an engineer never actually cabled anything new to them?

      If so… where are all of the complaints stating “I ordered FTTP but you didn’t deliver it?”

    • Avatar Phil

      @FibreFred

      Most people I know assume their Fibre broadband is delivered using fibre optic cable. They don’t generally know that to get actual fibre requires an engineer, drives dug up or guys on ladders flinging another cable across, those that do know that, know they haven’t got ‘fibre’ and are likely vocal about false advertising. Also don’t forget that for new FTTC and Virgin installs, an engineer had probably visited the home and would have been inside the property changing face plates etc. The home owner assumes at that point that fibre is being installed.

      And there in lies the problem, how do you sell real fibre optic cable and it’s benefits when the majority of the general public believe they already have it due to what has really been false advertising all these years.

      When I explain to friends and family that think they have fibre optic cable to their door that it is nothing other than bog standard telephone cable and the fibre could be hundreds of metres away, they often don’t believe me and I get the response “That can’t be right, it would be false advertising to call it Fibre, you must be wrong”. I’ve had that a few times or words to that affect.

  13. Avatar Chris Sayers

    Unintended consequences… A ruling the ASA made all those moons ago was to fabricate a lawful lie,when is a banana not a banana… When it’s got an Apple in at the end of it, no if I advertised a bunch of bananas and then tried to pass them of as apples then the ASA would find against me, but this is where we are now, the ASA should have stuck to the technical facts as it was at the time, not consumer perception, those is where I come back to my argument, re reading what I have just said, I must be mad… Much like the ASA

  14. Avatar Emil

    “ASA claimed that “fibre” wasn’t a priority identified by consumers when choosing a package; ”
    This is correct, I don’t care if it’s called fiber or cowmow, or whatever, but I do care what does it offer, and how on bloody earth can you label it fiber when the max upload speed you can get on any package doesn’t go above 20mbps? Yeah consumer won’t switch either because there is no alternative, the whole UK broadband market is a race to the bottom on the price, but they are all the same, except those who really provide FTTP/H who are few and far in between 🙁
    For 8 years now I’m stuck with 20mbps, thanks good 5g is coming and I will finally be able to upload with decent speeds…

    On ASA ruling just shows how ignorant people blinds the masses. How can you except the simple end user to be able to comprehend the difference when you brainwash them?

  15. Avatar TheFacts

    How should the Hyperoptic product be described when it’s CAT6 to the apartment.

    • Avatar Phil

      “How should the Hyperoptic product be described when it’s CAT6 to the apartment.”

      It’s fibre optic to the premises, so that’s fibre. As long as fibre is at the building you are in and is then delivered by data grade cable, that’s fibre. No one has fibre directly going into the back of their PC do they? The rules I think are simple, to be called fibre then:

      1) Fibre is terminated at the customers premises or building
      2) All stages of delivery must be over a data grade cable (i.e. it is possible to distribute to an apartment block using VDSL from the basement or a cabinet immediately outside, that doesn’t make it fibre in this case)
      4) The acid test is that speed does not degrade with distance

      VDSL is fibre terminated hundreds of metres away from the property, delivery to the property isn’t over data grade cable but modulated over plain old telephone cable, and fails on the speed degrading over distance test.

    • Avatar TheFacts

      Hyperoptic is not fibre to the customer interface.

    • Avatar kaitlyn

      Mine is CAT5E, not CAT6. It doesn’t reach all the way to the basement but rather there are repeater/relay boxes in the utilities conduits, so that every flat is no more than 100m away from a fibre backbone in the building, and is therefore within the technical limitations of CAT5E.
      I kept the trimmings from installation in my flat and use it to make my own ethernet cables going into my gigabit switch (for TV, computer etc in the same room).
      I have scrap CAT6 too but just like with Hyperoptic’s scenario, I don’t need over 100m of coverage to get to my router, and CAT5E is easier for me to trim, strip and crimp.
      Plus I only decided to pay for the 100Mbps symmetric package so I’m not really stressing the capacity of their CAT5E anyway. That speed already is faster than most non-Google servers in practise, or the ping time for DNS lookup outstrips any loading time gains I might get with more throughput.
      It still is much better than VDSL which I used previously. Ping times are up to half depending on the time of day (since all other people in the apartment complex are hooked up to the same fibre router in the basement, and there is Dual NAT happening) and always at least 40% faster than I ever got from VDSL (and I had the best VDSL you could hope to have at one point, less than 20m from the cabinet for a small house, I got the full 82 down that they don’t even advertise anymore). Ping only change by a few ms even in busy times, probably because everybody streaming iPlayer are still not saturating the connection for more than a second at a time.
      Despite being high up in the building, and therefore further from the fibre coming into the basement than I had with VDSL at one point, the ping down there still doesn’t even register on a traceroute scan, while I had a few ms added going to the cabinet before, as well as failed packets more often than you would expect from such a short twisted-pair run. Of course I’m sure this has something to do with how there is some fibre run up the conduits, I don’t know if it’s something akin to FibreChannel or if there are just lots of fibre-to-ethernet routers rather than just one in the basement..?
      Anyway, the main point is, it really is a very different experience than VDSL. DOCSIS is a lot better than VDSL, due to using shielded coax cable rather than very thin twisted-pair, but having the “phone socket” actually be an ethernet jack still easily beats out either options for day to day usage, even when on one of the slower speed options (broadly similar when only downloading, to the 82/21 VDSL I used to have, albeit of course when uploading something having a symmetric connection really is great. As a freelance artist who regularly has to upload lots of photos and videos to clients, what was hours on ADSL or still 20 minutes on VDSL is now only 3 or 4 minutes for me.)
      Even the base package Hyperoptic offers with 10Mbps down and.. I don’t think that one is symmetric, should still benefit from 0.01% packet loss (I left ping running for weeks to get even a single dropped packet) and low pings.

  16. Avatar Michael V

    That picture you’ve put at the top of this news story is great, it’s amused me! Made me smile!

  17. Avatar TheFacts

    Cityfibre say fibre does not need powered cabinets. Strange as VM and Gigaclear have them.

    • Avatar GNewton

      Who cares? What has that got to do with ASA case and the issue of false fibre-broadband advertising?

    • Avatar TheFacts

      @GN – Read the case document.

      An important part of the greater reliability of full-fibre infrastructure is that it bypasses the need for a street cabinet, which has electronic components and needs a power supply and is therefore vulnerable to weather, power supply disruption and other potential issues.

      xxx

    • Avatar CarlT

      CityFibre are correct. It obviously doesn’t need them – see Openreach FTTP.

      VM due to the infrastructure they have in place made the decision to build OLTs in the field. Gigaclear could have acquired property to host their equipment throughout but made the decision not to.

    • Avatar Joe

      Thats a choice. As Carls says they can be unpowered its one of the potential cost savings

    • Avatar Icaras

      Aren’t the Gigaclear ones needed as that’s the point they hand over from their fibre to the Openreach long distance backhaul fibre that they rent?

    • Avatar CarlT

      They chose to do that to cabinets rather than to a building. It makes sense given the areas they are covering.

      CityFibre are building in, well, cities, so it makes sense for them to acquire property.

      VM have a lack of physical space in some of their sites and chose the architecture they did. Not uncommon among cable companies to use streetside OLTs for RFoG – they are increasingly moving the intelligence in the cable network out of hubs and both centralising and distributing.

      Can be done either way is the point, though.

  18. Avatar Alex

    In my opinion CityFibre’s campaign was as dead as a dinosaur from the outset. What they failed to realise is that a vast majority of people do not care whether their broadband arrives via fibre or copper or both – they just want it to work and be fast enough to work for what they need, which for most people isn’t 1Gbit capable fibre (not yet anyway). And since when were CityFibre a consumer champion? This was a cynical self-serving exercise designed to simply to elevate their profile and, if successful, give themselves a marketing advantage over the competition. Everyone in the market is now going full tilt to roll just full fibre anyway so their position on this is completely redundant.

  19. Avatar Roger_Gooner

    In para 46 (ii) of the case document: “Full-fibre providers have sought to differentiate full-fibre from part-fibre through their advertising, but with limited success.”

    Translation: the consumer doesn’t care about “full-fibre”.

    • Avatar TheFacts

      iii) If the wholesale roll-out of full-fibre services across the UK is to be viable, then sufficient numbers of consumers will need to appreciate the superiority of full-fibre services and choose to take up full-fibre services over inferior part-fibre services.

      Then call it full-fibre. Sorted.

    • Avatar Icaras

      The consumer doesn’t care about full fibre as they think they already have full fibre. That’s the point. The marketing has confused them.

  20. Avatar Tom Mitchell

    I completely agree with CityFibre’s ambition to challenge the way providers describe the products that they sell. I always make it very clear when I am speaking with suppliers or customers with regards FTTC products that the product is “fibre-based”. However, I feel even this definition is misleading because ADSL is technically fibre-based too, but just from a different point in the link. If FTTC stands for Fibre-to-the-Cabinet, I would suggest that ADSL should be called Fibre-to-the-Exchange, but it was never defined as that. It’s also true that the delivery method used to most end users is irrelevant, with speeds and reliability being the main concerns for end users. However, those not technically literate make the assumption that “fibre” is faster than “copper”. Perhaps a better method or campaign would be simply to drop the delivery method used within the marketing of ISP products, and note the speed only. The way that this speed is delivered can then be up to the provider: ADSL, FTTC, G.Fast, FTTP…

    • Avatar FibreFred

      Nothing would be described as Fibre to the Exchange, because you buy a service from the Exchange/PoP to your home. Not something delivered to the Exchange itself.

      It’s ridiculous to try to described ADSL as Fibre to the Exchange as that has nothing to do with ADSL. Microwave or ATM could have fed the Exchange (back in the DSL days)

    • Avatar CarlT

      ATM is carried over other things. It’s not a physical layer. It can be carried over microwave but can’t be used in an either-or.

  21. Avatar Icaras

    Some of the comments above are daft.

    I’m glad this ISP Shad tried to do something about this but sadly it’s too late. Marketing hybrid services as fibre should never have been allowed in the first place.

    Now the British public are thoroughly confused. I can’t tell you how many times I’ve had to explain to people that they don’t have fibre to the home. Countless times at home and at work (I work in the industry).

    So the point is that because people think they already have fibre they don’t see the point in upgrading to FTTP.

    • Avatar TheFacts

      Added issue of why upgrade if what you have works.

    • Avatar GNewton

      @TheFacts: Why are you so afraid of honesty? If, as you claim, it doesn’t matter how broadband is delivered, then there is nothing to be lost for you when fibre-broadband is only called such when it’s actually fibre, and hybrids are called what they are: VDSL, cable, ADSL etc.

      The point is, promoting a lie is morally wrong, it is a despicable act. What’s to prevent agencies like ASA not to do it again? Do we really want to end up in a lawless telecom’s wild west?

  22. Avatar GDS

    The ASA wouldn’t allow mince containing, for example, 80% beef and 20% horsemeat to be labelled as beef mince.

    Yet it allows VDSL that can, for example, be 80% fibre and 20% copper to be labelled as fibre.

    I complained to the ASA about misleading ‘fibre’ broadband advertising back in 2010 using this very argument. Needless to say my complaint wasn’t upheld.

    Customers I speak to with VDSL still believe they are getting full fibre broadband even when their crappy copper service has degraded to dial-up speeds!

    The deception has gone on for so long it is now the considered the truth. The marketing people who came up with this wheeze must be laughing their socks off.

    In this case, the ASA have proven themselves to be totally useless. Maybe they didn’t know the true definition of ‘infinity’!

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