Rivals BT and Sky complained to the regulator about the ad (pictured below), challenging whether its “unlimited” claim was misleading because they believed Virgin Media’s traffic management policy had a “more than moderate impact” on customers who exceeded data thresholds.
Sky and one other member of the public also challenged whether the claim “unlimited downloads: download and browse as much as you like with no caps and no hidden charges” misleading implied there were no provider-imposed restrictions on a customer’s ability to download data.
Virgin Media understood advertising references to “unlimited downloads” to be in line with the CAP Code because the policy was “moderate” – as opposed to suspending customer’s services or subjecting them with additional charges for breaching the limits. A customer subject to traffic management would still have access to unlimited downloads, just at a slower speed, it said.
The company enforces “traffic management” to just under 3 per cent of customers, which sees their broadband speed depleted by 50 per cent if they exceed daily download limits.
The ASA banned the ad on both grounds, concluding both claims were “misleading” due to the “immoderate restriction” to the unlimited service by enforcing traffic management.
Following the adjudication Virgin Media has decided to decrease its traffic management speed reduction to 40 per cent. It will, however, continue to advertise unlimited broadband.
Virgin Media is also in discussions with the ASA to ensure it enforces the CAP codes – updated in 2011 following a year-long public consultation to address broadband providers’ unlimited and maximum speed claims – in a more prescriptive manner.
The CAP code currently states telecoms providers want to use “unlimited” claims in their advertising, limitations that affect the usage of the service are “moderate only and are clearly explained in the marketing communication”.
A Virgin Media spokeswoman says: “Our customers receive unlimited, superfast broadband and, even if they’re one of the tiny minority traffic managed for a short period of time, Virgin Media customers can download more than other ‘unlimited’ services, including BT Infinity. Unlike BT or Sky, all Virgin Media customers can download as much as they like, safe in the knowledge we’ll never charge them more.”
Andy Taylor, member of the CAP code policy team, says as the ASA enforces the advertising code it has to form a conclusion based on conceptual tests as to what the average consumer would perceive of the claims – in this case that unlimited broadband would not mean any repercussions for going over a certain limit.
He adds: “If [Virgin] chooses to amend its policy [around traffic management] we would have to assess again on a case by case basis. From a CAP point of view we are always open for any advertiser to approach us so we can offer guidance.”