ASA proposals for use of 'unlimited' and 'up to' in broadband advertising
Thursday 27 January 2011 17:08:47 by John Hunt

The Advertising Stands Agency (ASA) launched a review last year carried out by the British Code of Advertising Practice (BCAP) and Committee of Advertising Practice (CAP) into the usage of the terms 'unlimited' and 'up-to' in broadband and telephony services advertising. The aim was to determine if the usage is misleading to consumers and how future policy should be shaped to ensure that users are not mislead.

'Unlimited' usage limits

Currently a product can only be advertised as 'unlimited' if it actually has no artificial limits or if it is subject to a Fair Usage Policy (FUP) and the existence of the policy is stated in the advert. The FUP must only affect 'atypical users' which is defined as meaning it will only affect 2% of users on the product. A survey by Which? in 2010 showed that around half of consumers were unaware of their FUP, and Ofcom research from 2008 showed that 32% of users mistakenly believed they were on an unlimited service. This has encouraged a rethink of how the term 'unlimited' should be used to avoid consumers being misled, which can particularly be the case where there is so much variance in what the term means.

CAP and BCAP are therefore consulting on four options of how the rules could be changed over the usage of the term 'unlimited' although it is recommending not to keep the present policy.

1. Keep the ASA's present policy
2. Adjust the present policy to exclude FUPs that involve additional charges or suspension of service
3. Adjust the present policy to exclude FUPs that involve additional charges, suspension of service or severe traffic management of the breaching customer
4. The exclusion of products or services that include an FUP that restricts usage in any way

Option C aims to address the issue where a broadband connection can be made unusable by traffic management. They propose that a user should still be able to carry out any activities that they wish but download times for large files may be affected. Option D is likely to be the favoured option of consumers but broadband providers will argue that a reasonable limit that only affects a minority of users should be sufficient not to mislead.

'Up to' and broadband speeds

Broadband speed claims are the second concern which is leading to misleading advertising of broadband services in the UK. Most broadband products are provided as a variable rate product which has a theoretical maximum speed which is defined by the service equipment which your broadband connection is connected to. This is in most cases affected by contention with other users in the area (for example at peak times, much like rush-hour traffic on the roads), signal quality (which varies on the quality or length of a phone line or distance from a mobile broadband transmitter) as well as technical overheads and some other environmental factors.

As the speed of each broadband service will vary on these factors, it is unreasonable for broadband advertising to be able to provide a suggested speed for each location or time. Current policy says that all speed claims have to be qualified with the term 'up to'. Theoretical maximum speeds can be provided but any speeds over 2Mbps must make clear (in the main text of the advert that speeds will vary depending on distance from the telephone exchange. Any traffic management policies that apply must also be mentioned within footnote text. The proposals for the way forward in this sector look at both qualifying speed claims and what information should be provided to reinforce these. For speed claims:

1. Keep the ASA's present policy.
2. Advertised speeds should be available to at least 10% of users.
3. Advertised speeds may be based on maximum performance but a typical performance (expressed as a range) based on actual speeds should also be included.
4. Advertised speeds may be based on maximum performance but typical performance based on actual speeds of at least 50% of users should be included.
5. Quoted speeds must be available to at least 50% of users.

In terms of additional information, there are three proposed qualifiers:

1. Speeds must be qualified with "up to"
2. Advertisments must include references to things that will significantly affect consumer broadband speeds.
3. Advertisements must state users can check the speed they are likely to receive at point of purchase.

Option B here tallies with ASA policy in other sectors which requires 'from' and 'up to' to statements to be available to at least 10% of consumers. An example for option C (C1 in CAP/BCAP document) would be "Up to 20meg" accompanied by text stating "Typical Performance: 8-12meg". This would potentially be more useful than a single typical speed as suggested in option D (option C2 in the document) as it helps indicate to users that speeds do vary between users. The last option helps to provide a clear indication of speeds to users which would allow an easy, understandable benchmark comparison between broadband providers. Whilst some users may get higher or lower than this, it can be indicated within advertising text that this is the case, without reference to a maximum speed.

The claims of average speeds in the options suggested would need to be substantiated. This would add an extra burden to smaller broadband providers who may not currently record or measure data of users average speed. Indeed, the independent Ofcom speed testing excludes providers with less than 250,000 broadband users, so this data would not necessarily be forthcoming from there.

The consultation on these options will close on February 25th and all significant responses will be evaluated prior to finalising proposed guidance. Once approved, this will become active guidance wand will apply to any new campaigns developed after the publication. The full proposal documents can be found below:

CAP and BCAP Consultation: Proposals for guidance on the use of “Unlimited” claims in telecommunications advertising
CAP and BCAP Consultation: Proposals for guidance on the use of “Up to” Speed claims in broadband advertising