The ASA has ruled against Be Unlimited with regards to the use of unlimited in advertising and product listings with Be told to not claim their services are unlimited.
The ASA considered that the claim "unlimited" would be interpreted by readers to mean that they would be able to use the service to download and upload as much data as they wished at any time without limit or penalty.
We understood, however, that users on congested exchanges using more than 150 GB in a month would be contacted and asked to reduce their usage in peak hours or face having their service suspended; we noted two users had left BE after being contacted about the FUP and that a significant number had been warned to change their usage behaviour. We therefore considered that, although it affected only a small proportion of customers, the service was restricted for those using more than 150 GB in a month on some exchanges and was therefore not unlimited. As a result, we concluded that the claim "unlimited" was misleading.
The claim breached CAP Code (Edition 12) rules 3.1, 3.3 (Misleading advertising), 3.7 (Substantiation) and 3.9 (Qualification).
We told BE not to claim that their broadband services were unlimited."ASA adjudication against Be Un Limited
The issue was that on exchanges that had congestion on the back haul network Be would contact users who used over 150GB over the course of a month to get them to try and use less data. Over a period of twelve months 224 emails were sent out to people breaching the fair use policy and this is out of a customer base of 68,000 users.
This ruling is interesting as moderate restrictions were allowed on services sold as unlimited and this was only carved into a stone tablet back in 2012. This set of rules has led to the two tier system where unlimited products often have a FUP, but totally unlimited products are more in line with the public perception of unlimited. Maybe the ASA is leaning towards helping the consumer in 2013.
The Be products are still listed as unlimited, so we presume with the purchase by BSkyB and other changes that the product has changed so that they can continue to use unlimited as a key sales point on the product pages.