Whether a service is unlimited if it has time/volume based throttling has been debated for many years on user forums, and after a complaint by Sky and a member of the public the ASA has firmly come down on the side that a service that uses caps to slow a connection down should not be advertising itself as unlimited and with no caps.
"Claims on the broadband section of the Virgin Media website, www.virginmedia.com, stated 'The faster your broadband speed, the more you'll be able to do online. So, if there are a few of you at home gaming, downloading, streaming movies and shopping, then mega speeds of up to 100Mb will let you all do your thing without slowing each other down. If you're going to do a bit less than that, but still want consistently fast broadband even at peak times, then you'll be fine with our up to 30Mb or up to 60Mb tariffs ... You get all this with your package too ... Our fastest wireless ... Free internet security ... Unlimited downloads Download and browse as much as you like with no caps and no hidden charges'."Detail of the original advert via ASA website
In its defence Virgin Media said that 97.7% of their customers would not be affected by the traffic management which after you have downloaded a certain amount will throttle the speeds back for a few hours. The 50% reduction in speed was not considered moderate by the ASA and the effect can be seen in the Virgin Media response where they stated "under traffic management customers would, on average, experience speeds of 15.5 Mb, 27.95 Mb and 44.15 Mb across the three advertised tiers" (the tiers being 30 Mbps, 60 Mbps and 100 Mbps).
The ruling does not mean Virgin Media has to abandon its method of traffic management, but that the firm needs to be much more careful in how it advertises the service, which in the advertising battle will be difficult now that Sky, BT, TalkTalk and Plusnet are all in the Unlimited arena.
For Virgin Media customers curious to know about the traffic management on the service, Virgin Media maintains a complex table showing all their products. It appears that as of 27th March changes are due, with the downstream reduction being 40%, and the trigger level starting at 3.5GB between 5pm and 10pm, with a higher trigger between 10am and 3pm of 7GB for the XL 30 service. Upload speeds that were not covered in the adjudication receive a harsher level of management, with a 75% reduction in speed if the trigger of 3GB is exceeded between 3pm to 8pm.
Update 11:10am After a call from Virgin Media we are adding this clarification. The changes in the traffic management to see the throttling change from a current 50% to 40% if people exceed the trigger level are apparently in line with the ASA adjudication.
Update 5th April 2013: The ASA has contacted us and the 40% throttle level has not had approval, it appears the jury is out still on whether the 40% reduction in throughput counts as a moderate reduction in speed. Importantly we note that Virgin Media is not reducing the management of upstream, so we assume future advertising will be download centric.