Mobile network operators may have escaped the Advertising Standards Authority’s new guidelines on allegedly misleading broadband advertising, but they will have to toe the line, and may be caught by the new policy on fair use.
An ASA spokesman confirmed that the “unlimited” Help Note applied to mobile services, but the Help Note on broadband speeds did not, pending further work by CAP (Committees of Advertising Practice) and BCAP (British Code of Advertising Practice).
‘Mobile providers should endeavour to ensure that marketing communications for mobile services that make speed claims should conform to the spirit of the Help Note,’ he said.
In a consultation document published earlier in the year, CAP found that most complaints came from people who felt that “unlimited” should mean just that, and that usage caps or traffic shaping were a breach of contract.
Moreover, only 2% of users were likely to breach “fair use provisions” (FUPs), the CAPs said.
The ASA’s guidelines published on 29 September said that “unlimited” meant that legitimate users should not incur extra charges or suspension of service if they exceeded a usage threshold associated with a FUP, traffic management policy or the like. Operators’ restrictions on speed or usage were to be “moderate”, and clearly explained in the marketing literature.
‘Claims that have the same or similar meaning, for instance, “Limitless” or “All you can use” will be assessed on a case-by-case basis,’ the ASA said.
The ASA warned that operators may not penalise a user for exceeding data caps while using “lawful peer-to-peer file sharing”.
‘Providers should be able to demonstrate that limitations imposed on the speed or usage of a service do not prevent or hinder users from carrying out lawful online activities, such as streaming content, at or close to the consumer’s normal connection speed,’ it said.
Operators would have to show that any speed cut while downloading streaming video or large P2P files should not surprise users, and conform to traffic flows appropriate for that time of day.
The ASA said the new guidance did not resolve arguments over net neutrality, the idea that operators should not discriminate between different types of traffic (e.g. voice, email and video) and should use their "best efforts" to get the bits to their destination.
The ASA spokesman said the guidance related strictly to the acceptable use of the term “unlimited” as an advertising claim, and did not relate to wider business practices.
‘It is not in the power or remit of the ASA to prevent operators from slowing down or blocking traffic,’ he said. ‘The issue of net neutrality, whilst the CAPs are aware of it, was not felt to be directly relevant to this guidance, given its focus on advertising claims, as opposed to wider business practice.’
He noted that under the new guidance, operators who argued against net neutrality were unlikely to be able to use the term ‘unlimited’ in their ads.