Telecommunications

UPC Website Advertising:

“Limitless 240Mb with mobile calls; €25 per month, price after 4 months €45.
Unlimited 240Mb broadband …

Limitless 120Mb with calls; €20 per month price after 4 months €40.
Unlimited 120Mb broadband …

60Mb Limited with calls; €15 per month, price after 4 months €35.
650Mb buffer-free broadband….”

Sky Ireland objected to the advertising on the grounds that it was misleading. They referred to a speed analysis company, SamKnows, who were commissioned by UPC to conduct a survey on the performance of their 120Mb broadband plan. The analysis was published in November 2014. Sky Ireland noted that the results of the analysis indicated that only 7.69% of users in the study achieved 100% of the advertised speed and that 50% of users in the study achieved 92% or better of the advertised speed.

Sky Ireland stated that despite the findings of this report UPC continued to advertise their 240Mb and 120Mb plans in various media. They stated that if UPC could not guarantee speeds at 120Mb then they assumed that this would translate to their 240Mb plan.

Sky also referred to a previous adjudication regarding UPC in which it UPC had stated that their cable network was designed to deliver the full advertised broadband speed to each customer. They considered that it now appeared that UPC’s customers were not guaranteed to receive the advertised speed and in the light of the fact that less than 8% of customers received the advertised speed they considered that UPC should be referring to their speeds as “up to” speeds in their advertising.

UPC stated that they recognised that there was confusion in the marketplace regarding the communication of broadband speeds and the setting of expectations for customers. They said that based on this, they engaged SamKnows with the objective of providing accurate broadband performance reports. The objective was to use this information to improve the marketing messages used to describe the speed performance a customer might expect from their broadband products.

In response to Sky’s complaint, they stated that they did not consider that they had engaged in an advertising campaign that would mislead or be likely to mislead and they strongly believed that the advertising did not exploit the credulity, inexperience or lack of knowledge of consumers. They were satisfied that the advertising referred to had included all the relevant information required by the average consumer to make an informed transactional decision.

In regards to the previous case that was adjudicated on by the ASAI Complaints Committee and found to not be in breach of the Code, UPC stated that since this complaint they have continued to invest in improving the speed and performance of broadband products. They said that their lowest entry level unlimited broadband speed was now 120Mb and they have, over the past year, moved the majority of their customers to this product and it was the product that had accounted for the larger volume of their sales. It was for this reason that they chose this product as the focus of their speed performance measurement with SamKnows.

They stated that they commissioned the research at their own expense to produce a detailed report on broadband performance across their network of their 120Mb product. They said that the main conclusion from the survey was that: “UPC’s 120Mbps plan performs just below the advertised download throughput, delivering an average of 87.73% of the headline speed during the peak period.”
They considered that Sky’s complaint had included an assertion that they should state that their speeds are “up to” in their advertising. They referred to the ASAI’s advice note on broadband which had stated that “Where broadband speeds are described by the maximum speed attainable, they must be described as an ‘up to’ speed.” They said that the 120Mbps used to describe the speed was less than the average provisioned maximum speed. They said that these products were provisioned in their network to provide speeds at a rate of 132Mbps which was 10% higher than the 120Mbps speed that they used to advertise their product, in the circumstances they considered that their customers could achieve speeds greater than 120Mbps. They considered that this was the most appropriate descriptor for this particular broadband product and that the data from the SamKnows survey had substantiated this view.

They also said that it was important for ASAI to be aware that SamKnows had confirmed to them that even during peak periods they averaged 87.73% of advertised speeds. They said that a crucial point of the ASAI advice note to broadband providers was the requirement for a clarification of achieved performance being dependent on the ‘normal variance’ between speed advertised and speed typically achieved. They believed that speed claims should be based on the actual experience of users and all ISP’s should be able to demonstrate that the speeds in their advertising could be achieved by a reasonable proportion of their customers.

They also stated that the SamKnows report did not indicate anywhere that their network saw a peak period reduction in speed that was significantly lower than that advertised, such that it prevented a proportion of customers carrying out, to an acceptable performance standard, the type of online activity that they might reasonably expect to undertake on the service, for example, streaming or downloading. They said that as the objective of engaging SamKnows to undertake a performance measurement survey was to collect information that would help them improve the communication of the speeds that their customers could expect, they were proposing to make amendments to the advertising of the speed customers could expect. They said that they had already published and referred to the full detail of the survey and they were proposing to include “peak hours” average figures together with the broadband speed in their advertising. They believed that this would significantly improve customers understanding of the actual performance they might expect from their broadband product.

In regards to their 240Mbps product they stated that this was launched in January 2015 and as a new product they did not yet have the performance measured or verified by a third party. They said that they had included a statement in their advertising which detailed the predicted actual standard speed available to the majority of customers. They were also proposing to change their advertising of this product in line with the proposed statement for their 120Mbps product as follows: “120Mbps broadband (expected average speed during peak hours of at least 100Mbps on a wired connection).”

In conclusion, UPC stated that they believed their communications were open and transparent to all who reviewed them and communicated the clear message that if they chose UPC broadband they will receive a consistent speed service and the fastest broadband on the market.

They also believed that the displays of speed in the manner shown were the most representative and clearest display of the service available. They said that in all instances, the speeds displayed on the marketing communications on broadband related to the product specified. They said that the display of speed was accurate and clear and there was nothing omitted from the customer in the communication. They said that they have examined the findings of the SamKnows report in detail and advised that a review of how they advertise their speeds was undertaken and will continue on a go-forward basis. Following this analysis they have decided to outline the new speeds with the following notes:
“240Mbps broadband delivers 85% speed the majority of the time”
“120Mbps broadband (expected average speed during peak hours of at least 100Mbps on a wired connection)”
“240Mbps broadband, (expected average speed during peak hours of at least 180Mbps on a wired connection)”.

They considered that these claims indicated a small normal variance between advertised speed and those typically achieved by customers. They said that this was in line with the ASAI guidance on transparency relating to Speed of Service from the ASAI advice note on broadband advertising.

The Complaints Committee considered the detail of the complaint and the advertisers’ response, together with the further comments provided by UPC. The Committee considered that it was more appropriate to deal with this matter by way of a statement.

The Committee noted the results of the SamKnows survey carried out which showed that UPC’s 120Mbps product delivered an average download speed of 87.73% of the headline speed during the peak period and that during the 24 hour overall measurement period, 50% of users achieved 92% or better of the advertised download speed.

The Committee considered the ASAI Advice Note on Broadband. They noted that UPC’s 120Mbps product was capable of delivering speeds of 132Mbps and that the advertised speed of 120Mbps was not the maximum speed attainable. The Committee noted that on the outcome of the research, UPC were proposing to amend their future advertising to advise customers what the expected average speed during peak hours would be on a wired connection.

In view of the fact that UPC customers received an average of 87.73% of the advertised headline speed at peak hours and that the advertisers’ had undertaken to include clarification in future advertising, the Committee did not consider that further action was warranted.

While the Committee welcomed the amendments proposed by the advertiser, they told UPC to asterisk the headline speed claim to the amended footnote.