Telecommunications

The opening scene of the television advertisement showed an information sign placed in what appeared to be a roadside construction site stating, “Fibre Installation”. A construction worker was depicted beside this sign, drilling into the road using a kango hammer. Suddenly, the kango hammer took off, with the construction worker still on it, and the pair began to travel across various locations within Ireland, digging into the ground the whole time.

The kango hammer was shown travelling through a back garden where it disturbed a woman gardening; it was depicted moving along a city street where it caused a pipe to burst and to splash pedestrians; the next scene showed the construction worker and kango hammer drilling beneath the Rock of Cashel, disturbing a flock of sheep as it continued on its travels; the kango hammer next appeared drilling along the edge of the Cliffs of Moher and on the summit of Ben Bulbin before returning with the construction worker to the original construction site at the side of the road.

A couple in one of the houses on this road are then shown confusedly watching the construction workers through their window with the female actor asking:

“Why are they still laying fibre when we’ve got this?”

The camera then panned to a 5G broadband server set up within the home as a voiceover stated:

“Three 5G Home Broadband – another way to broadband, just plug and play.”

At one point during the advertisement, onscreen text appeared stating:

“Speeds may vary. Subject to location and availability. See Three.ie.”

A complaint was received from eir against the advertisement with two issues being identified.

Issue 1:
The complainant’s (eir) considered that the advertisement was an attempt by the advertiser to make a direct comparison between fibre broadband and 5G broadband. They said that they were Ireland’s largest fibre broadband provider and as such, were committed to growing their fibre broadband reach and that they had invested in a multimillion multi-year programme to roll out Fibre to the Home (FTTH) to 1.2 million premises giving customers reliable and uncongested speeds of up to 1000mbs. The complainant said that this made them an authority on fibre broadband technologies and, as a provider of 5G, they understood the difference between both technologies.

The complainants pointed to the line spoken by the actor at the end of the advertisement, “Why are they still laying fibre when we have got this?”. The complainant said that while 5G was a very capable technology, they argued that, based on their knowledge and experience, 5G mobile broadband was not comparable to FTTH broadband for the following reasons:
1. Speed – Fibre speeds were guaranteed Eir said that FTTH speeds were guaranteed for home users with most fibre providers delivering capability for Download speeds of 1Gbps (1000Mbps) and beyond. They said that 5G service profile was 500Mbps but the actual speed was never guaranteed in the home

2. Fibre – Fibre lines were dedicated to the home
Eir said that each home had its own dedicated line and there was no sharing with the neighbourhood as was the case with the use of mobile broadband. They said that 5G broadband service was shared in a specific area and service levels for each home were dependent on take up in the area as served from the local 5G mobile broadband site.

3. Latency
Eir said that FTTH enabled the best and lowest latency – particularly important for gaming and upload traffic requirements. They said that 5G latency was dependent on the 5G mobile broadband connectivity and ultimately was dependent on the quality of the transmission connectivity in place at the 5G mobile broadband site and the level of sharing with other 5G mobile broadband sites in the specific area.

4. Reliability
Eir said that FTTH was extremely reliable service and was not subject to service degradation as a result of weather events and power availability. They said that 5G mobile broadband reliability could be impacted with weather and storm events and availability of power at the 5G mobile broadband site.

The complainant said that in addition, the Commission for Communications Regulation (ComReg) website(1) stated the following when making a comparison between FTTH and mobile broadband:

“What is Fibre broadband?
Fibre broadband is the latest broadband technology that offers consumers the highest available speed and most reliable broadband. Fibre broadband is sometimes called Fibre To The Premises (FTTP), Fibre to the Home (FTTH) or Full-Fibre. This is where all cables that bring internet to your home or premises are Fibre Optic. At the moment, a full-fibre connection can typically deliver speeds of up to 2 Gigabit per second (Gbps) which is 2,000 Megabit per second (Mbps).

What is Mobile broadband?

Unlike traditional broadband, mobile broadband provides an internet connection using a mobile phone or Wi-Fi router which contains a SIM card that connects to the same 5G or 4G signals as a normal mobile phone. This means that mobile broadband won’t normally be as fast or as reliable as fixed internet. However, the additional mobility and flexibility can appeal to many.

As with fixed-line broadband, several different devices may connect to mobile broadband at once.
Mobile coverage is an important consideration for anyone looking to purchase a mobile internet package. It is important to note the mobile coverage in your area, so you can compare the signal strength of the different providers for the different mobile network generations (i.e. 4G or 5G). Be aware though that building materials and home insulation may adversely affect indoor mobile coverage.”

The complainants said that furthermore, on the 7th of May 2019, the then Minister for Communications Richard Bruton stated, “A mobile 5G service is not a suitable alternative to fibre-to-the-home broadband, for many reasons as outlined by ComReg and others”(2) .

The complainant said that the information above demonstrated that the campaign sought to compare the performance of 5G mobile broadband and fibre broadband performance, which they reiterated were largely non comparable as FTTH was a far superior product to 5G mobile broadband as FTTH provided the highest available speed and most reliable broadband. They said that on that basis, it was misleading for Three to state “why are they still laying fibre when we have got this?” when in fact the Three customer was not availing of the highest available broadband speed and most reliable broadband which was FTTH.

eir said 5G Broadband was not in the same league as fibre broadband. They said that one could assume the current Government would take a dim view of the suggestion that the current national broadband rollout plan could be replaced by a 5G broadband rollout and that the rollout of fibre broadband to all parts of Ireland was essential to the growth of the Irish economy and society in general. The complainant said that any campaign that suggested this rollout was destructive, or indeed not needed (“why are they still laying fibre when we have got this?”) was quite simply wrong.

eir said that by positioning ‘Fibre Installation’ at the start of the TV ad, this positioned the campaign immediately in the ‘comparative advertising’ arena. They said that an actor delivering the line “why are they still laying fibre when we have got this?” underlined the comparative nature of the campaign. They pointed to an article(3) in which the advertisers’ stated, “This campaign was designed to provoke people to see that there is a better way to broadband than fibre – Three 5G Broadband.” The complainant said that this was proof again that the advertisers were comparing both technologies.

Issue 2:
The complainant pointed to the implication within the advertisement that the installation of fibre required destructive and disruptive civil works being carried out and said that this was both disingenuous and patently not the case, and that the advertisement wholly misrepresented the rollout and installation process for eir’s FTTH (and others’ rollout and installation).

The complainant said that for the provision and installation of eir’s FTTH, fibre cables were placed on existing eir poles or were installed in eir’s existing underground duct network. They said that in the context of the installation of eir’s FTTH to customer premises in urban and rural areas, they would typically drop the fibre cable from the nearest telegraph pole. They explained that a duct which would necessitate civil works would only be installed by eir on a customer’s premises in the event a customer requested same. They said that it was eir’s experience that such requests were normally for cosmetic reasons. The complainant said that on this basis, there was no requirement for eir as an FTTH provider to be carrying out major civils works and digging up streets or damaging gardens as depicted in the Campaign.

In addition, the complainant pointed to the Irish Government’s National Broadband Plan (NBP) which they said was for the rollout of FTTH in primarily rural areas (NBP Intervention Area) and which used a large number of eir poles and ducts for the delivery of the rollout. They referenced the Irish Government website(4) which stated, “Where possible, overhead lines and existing poles will be used to lay/hang the fibre cables for the rollout. This is a sustainable approach which saves time and money.” The complainant said that the depiction of civil works in the Campaign was obviously in conflict with what was stated by the Irish Government for its rollout of FTTH in the NBP Intervention Area and with eir’s experience of liaising with the operator delivering the NBP.

FOOTNOTES:
(1) https://www.comreg.ie/advice-information/broadband-and-home-phone/types-of-broadband-technology/
(2) https://merrionstreet.ie/en/news-room/releases
(3) https://www.adworld.ie/2024/06/14/three-plugs-5g-broadband-in-new-campaign-from-boysgirls/
(4) https://www.gov.ie/en/publication/c1b0c9-national-broadband-plan

For context, the advertisers explained that Three had advertised its Home Broadband Campaign across multiple TV channels since 13th June 2024. They said that the purpose of the Home Broadband Campaign was to promote to the public in an amusing and entertaining manner the means by which households could easily and conveniently access broadband services using Three’s 5G broadband service, as an alternative to fixed broadband services that were supplied via a fibre or cable to the home. They said that it demonstrated a key feature of Three’s 5G broadband service, which was that it was delivered wirelessly.

The advertisers said that the Home Broadband Campaign itself had been very well received and it was noteworthy that they had not received a complaint from any other third party, other than from eir, its competitor. They said that this was reflected in the results of a survey that Three had commissioned through Red C, the details of which could be found in the further information section below.

The advertisers clarified as a preliminary matter that eir was not the only provider of fibre broadband access in Ireland, and that there was no mention of eir or any eir service in the Home Broadband Campaign.

The advertisers said they were satisfied that their Home Broadband Campaign did not mislead nor was it likely to mislead by inaccuracy, ambiguity, exaggeration omission or otherwise. They said they were also satisfied that the Home Broadband Campaign did not contain claims (direct, indirect, expressed or implied) that could not be substantiated, nor did it contain any misleading comparisons.

The advertisers said they were satisfied that there was no substantive basis to ground any of the issues raised and said that eir hinged all the issues on two elements of the Home Broadband Campaign: (i) a singular line uttered in Three’s ad campaign, where the female actor remarks “why are they still laying fibre when we have got this?” and, (ii) what eir consider to be the “use of an individual on a Kango hammer which showed him carrying out destructive and disruptive civil works throughout the country.”

Issue 1:
The advertisers said that it was an essential feature of any good promotional activity that an advertiser would clearly present its offering to the public directly or indirectly in the context of competing product and services in the same class and category. With the exception of the means of delivery, they said that the extent to which the Home Broadband Campaign was making a comparison between 5G broadband and fibre broadband was limited to presenting Three’s 5G home broadband services to the audience as a product/service that met the same need/was intended for the same purpose as other home broadband offerings in the market.

The advertisers said there was no question that Three’s 5G broadband service was more than adequate to meet the needs of a home broadband service. They clarified that they checked coverage at the customer address to ensure adequate signal was available and they also actively managed the load on their network to ensure that the service was maintained. They said that Three’s 5G broadband customers were typically delivered a speed in excess of 300MB/s1(5), whereas the consumer switching site Switcher.ie provided examples under the heading “What is a good broadband speed?” pointing out that Netflix required a speed of 5Mb/s and that 4k ultra-HD TV required a speed of 25Mb/s.

The advertisers said that eir did not dispute that 5G mobile broadband met the needs of and served the same purpose as other home broadband products. They said that eir’s own 5G home broadband was promoted as follows, “5G Broadband – Our new 5G Broadband gives you 5G speeds right to your home” and was described by eir in its complaint to the ASA as a “very capable technology”.

The advertisers said that their Home Broadband Campaign presented Three’s 5G home broadband services as a legitimate substitutable means for consumers to conveniently access broadband services that would meet the needs of their households. They said that there was neither an explicit nor implicit comparison made between the performance characteristics of 5G home broadband and Fibre to the Home (FTTH) and any suggestion that Three was deceiving or misleading prospective customers in this regard was incorrect.

The advertisers said that without prejudice to this, they had set out details of how broadband services delivered over 5G and FTTH have similarities despite their differing delivery methods.

The advertisers said that, as cited by eir in its correspondence, “This campaign was designed to provoke people to see that there is a better way to broadband than fibre – Three 5G Broadband.” They said this had been achieved by presenting, what they believed to be, an entertaining and visually appealing advertisement that demonstrated the availability and ease and convenience of installation of 5G broadband, as an alternative to fixed line broadband, executed fully in compliance with the ASA Code.

Issue 2:
The advertisers said that in its complaint, eir was seeking to give the impression that the Home Broadband Campaign was misleading because it depicted civil works in fibre installation. They said that eir claimed that little or no ducting/excavation works were currently required to deliver and install fibre broadband, however, in reality they considered that significant ongoing work was required by eir and other fibre providers to roll-out fibre. They said that this rollout included excavations to lay new ducting and also to remediate existing ducting and was being carried out by both by eir itself and the other fibre providers(6).

The advertisers said they noted the submission eir made to ComReg in response to ComReg’s market review on Passive Infrastructure Access. They said that the submissions were published in January 2024 and provided access to the document(7) in which, they said, eir highlighted the extent of the civil work for duct repair currently needed in order to provide fibre broadband. They said that the below quote was taken from paragraph 189 of eir’s submission:

“189. Duct repair in particular is a highly intrusive activity involving the use of specialist heavy machinery, the removal of the ground surface (tarmac, pavement etc.) digging down to the duct, removing broken duct and replacing it. It carries with it a very high risk of damage to eir property and service outages impacting eir customers. It takes place on the land of third parties (county councils, private landowners) and gives rise also to risks of damage to their property and business interruption . . .”

The advertisers said that in its submission, eir referred to National Broadband Ireland (NBI) and further quoted NBI’s quantification of the degree to which NBI sought to carry out remediation work on eir’s ducting:

“A particular aspect of the self-remediation proposals is that NBI has expressed a desire to engage in 1-2,000 kms of self-remediation annually (i.e. carrying out all unblocking and repair activities needed on eir’s Ducts prior to self-installation of sub-ducts at a very large scale).”

The advertisers said that the above submission would seem to be supported by information provided by NBI itself on its web-site page giving information on connecting the premises:

“If an overhead connection isn’t possible for your home or business, or you already have some suitable underground ducting in place at your property, then the engineer may install the cable underground (including unblocking ducting if necessary)”.

The advertisers said they noted that the above work (up to 2,000 Kms annually), only referred to the remediation work that NBI wished to carry out on eir’s infrastructure annually and not the entirety of this work that was necessary.

The advertisers said that NBI as part of its roll-out of the national broadband plan expected “that the NBI™ network will require approximately 146,000km of fibre cable, 15,000km of underground duct networks and over 1.5 million poles”. The advertisers said that the laying of ducting was an inevitable and material feature and mode of roll out of FTTH in Ireland and to suggest that the Home Broadband Campaign misrepresented this was simply not factually correct. The advertisers said that by way of illustration, they attached two photographs which are detailed in the further information section of this report.

The advertisers said that these photographs showed just one example of the ongoing work required for the installation and maintenance of fibre access. They said that this work was being carried out on behalf of eir and was not difficult to find.

They said that according to ComReg’s most recent Quarterly Data(8) (Q1/2024), fibre broadband was only available to 62% of premises, so considerable ongoing fibre roll out, including new ducting and excavations would inevitably be required. They said that it was entirely legitimate and appropriate for Three to present its 5G home broadband product, with its ease and convenience of installation and wireless delivery in contrast to the fixed line alternative.

In addressing eir’s complaint about the individual on the Kango hammer, the advertisers maintained that this scene was clearly being used as a comedic presentation to its audience. They said that no typical consumer would truly believe that Kango Hammers could be operated like pogo sticks or that they were capable of propelling their operations forward at speed, or up in the air in a bouncing motion high above the heads of passers-by, or that they could propel their operator across the countryside without any means of cabling or electrical power.

FOOTNOTES:
(5) Measurements made by installers of Three broadband service from 1st Jan 2024 to 31st July 2024 show an
average download speed of 338MB/s.
(6) According to the latest Digital Communications Update (6th June 2024) from DECC:
• SIRO recently has passed 590,000 and continue to build to reach 700,000 premises by 2026.
• Virgin Media Ireland is committed to a €200m network upgrade to full fibre, which is continuing into
2025. They have recently reached a milestone of enabling 252,000 premises with full fibre.
• NBI has passed 205,600 premises from their target of 560,000.
(7) https://www.comreg.ie/media/2024/01/ComReg2405b.pdf
(8) https://www.comreg.ie/media/2024/06/ComReg-2444.pdf

ANNEX 1:
The advertisers said that in July 2024, Three commissioned Red C to carry out a survey to measure public reaction to the Home Broadband Campaign and that the results below were derived from 333 responses. They said that when asked which words, if any, described their initial reaction to the ad in terms of how it made them feel, the top three responses were:

Amused 38%
Interested 35%
Happy 21%

The advertisers said that overall, there was a net positive score of 79% based on statement count.

They said the primary message respondents took from the advertisement, at 42% of respondents was:

• Plug & play/no need for wires or fibre/Three has wireless broadband

The advertisers said the above shows that the Home Broadband Campaign was succeeding in conveying its primary message, that Three’s home broadband was available and did not require the installation of cable or fibre.

ANNEX 2:
The advertisers said that broadband services delivered over 5G Fixed Wireless Access (FWA) and Fiber to the Home (FTTH) both met the end user requirement despite their differing delivery methods, including:

1. High-Speed Internet: The examples given by Switcher.ie showed good internet speed as 5Mb/s for Netflix or 25Mb/s for 4k HDTV. Three’s 5G home broadband typically delivered a speed of over 300MB/s. Both 5G and fibre were suitable for supply of home broadband. There was no claim or direct comparison regarding speed in the Home Broadband Campaign.

2. Low Latency: Both technologies were designed to offer low latency, which was crucial for applications like online gaming, video conferencing, and real-time data streaming. Latency on both technologies was equally impacted by WiFi in the home, network congestion, measurement methodology and network architecture. eir may have latency problems on their own mobile network, which they were implicitly referring to in their complaint, however, Three was a stranger to eir’s internal challenges, which were not inherent in the technology, and were on the contrary happy itself to have been recently recognised by Ookla as Ireland’s Speedtest Award Winner for fastest 5G network(9). Again, there was no claim or direct comparison regarding latency in the Home Broadband Campaign.

3. Capacity for High Bandwidth: Both 5G FWA and FTTH were capable of handling high bandwidth demands, supporting multiple devices and data-intensive applications simultaneously. There was no claim or direct comparison regarding network capacity in the Home Broadband Campaign.

4. Network Architecture: Both used similar network architecture principles, with a core network handling data routing and distribution. In both cases, a local distribution network connects individual users to this core. In both cases the network was shared between users within a neighbourhood. Despite eir’s assertions of using fibre lines dedicated to each home, in fact, eir used a PON FTTH network(10) which was an inherently shared point-to-multipoint network architecture, similar in that way to 5G FWA.

5. Scalability: Both 5G FWA and FTTH were scalable, meaning they could be expanded to serve more users or provide higher speeds as demand grows. This scalability was critical for meeting future broadband needs.

6. Security: Both types of broadband services could incorporate robust security protocols, such as encryption and authentication, to protect user data and maintain network integrity.

7. Support for IP-Based Services: Both 5G FWA and FTTH could support a wide range of IP based services, including Smart Home devices (Google Home/Nest), VoIP (WhatsApp, Teams), IPTV (Sky Stream, NowTV, Netflix, Disney) and cloud-based applications.

8. Reliability: eir had frequently in its own social media posts highlighted the impact of Storms on their overground network(11). 5G FWA was much more reliable than eir’s legacy network with dangerous and latently defective infrastructure. 5G FWA had fewer potential points of failure and could be a better choice than Eir’s FTTH from the point of view of reliability. There was no claim or direct comparison regarding reliability in the Home Broadband Campaign.

In summary, while 5G FWA and FTTH both used electromagnetic frequencies transported over different medium, both also shared similar technical foundations in providing high-speed, low latency, and scalable broadband services with strong QoS and security capabilities.

FOOTNOTES:
(9) https://www.speedtest.net/awards/reports/2023/2023_Ireland_5GMobile_Q1Q2.pdf
(10) https://drive.usercontent.google.com/download?id=186F3FL92u_L_Vtqpi-17AMiYndVcfDU&export=download
(11) https://www.linkedin.com/posts/openeir_keepingirelandconnected-activity-7155231482565771264-t5Z1?utm_source=share&utm_medium=member_desktop

ANNEX 3:
The advertisers supplied the Executive with two photographs taken on the 24th of July 2024 on Bloomfield Avenue, Dublin 8 showing under-path fibre laying by Circet on behalf of eir.

The Complaints Committee considered the detail of the complaint and the advertisers’ response.

Issue 1 – Upheld.

The Committee noted the Code requirement that comparisons are permitted in the interests of public information and vigorous competition. That they can be explicit or implied and can relate to advertisers’ own products or those of their competitors. Marketing communications that do not identify a specific competitor can still be considered to contain an implicit comparative claim as a comparison could be made with all competition within an industry, for example, unqualified superlative claims (4.31).

The Committee considered the content of the advertising and considered that, while no direct comparisons were made within the advertisement in regard to the characteristics of both FTTH and 5G broadband, the Complaints Committee considered that the line spoken by the actor, “why are they still laying fibre when we’ve got this?”, created an implicit comparison between the products and an implication that 5G broadband was superior to FTTH. The Committee considered that the use of comparisons per se were not in and of themselves misleading.

The Committee noted that there were similarities between FTTH and 5G broadband, however, they also noted the information detailed by the Commission for Communications Regulation (ComReg) which stated that fibre broadband (FTTH) offered consumers the highest available speed and most reliable broadband. Furthermore, they noted that substantiation had not been received demonstrating that 5G broadband was a superior alternative to FTTH. In the light of this, the Committee considered that the comparison used within the advertising had the potential to mislead and therefore considered it to breach the Code at sections 4.01, 4.04, 4.09, 4.10 and 4.32.

Issue 2 – Upheld.

While noting the material supplied by the advertisers which detailed the planned expansion of the FTTH network as part of the national broadband plan and that this would inevitably require excavations and the laying of new ducting, the Complaints Committee considered that this would be the exception rather than the rule. As referenced by the complainant, the Committee noted that the Irish Government website stated, “Where possible, overhead lines and existing poles will be used to lay/hang the fibre cables for the rollout. This is a sustainable approach which saves time and money.”

While acknowledging that in some cases it would not be possible to lay fibre cables on overhead lines and existing poles and therefore the laying of new ducting would be required, the Complaints Committee accepted that the standard method for rolling out FTTH was to prioritise the laying of ducts on existing infrastructure with the express aim of saving time, money and avoiding potential damage to properties. While the laying of new ducts was required in certain circumstances, the Committee considered that the depiction within the advertisement was misleading by exaggeration and was therefore in breach of the Code at section 4.01.

ACTION REQUIRED:
The advertisement must not reappear in its current form unless substantiation is provided for the claims made.