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Source:  http://www.asa.org.uk/asa/adjudications/Public/TF_ADJ_42958.htm

ASA Adjudication

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Virgin Media Ltd
160 Great Portland Street
London
W1W 5QA
Number of complaints: 2
Date: 1 August 2007
Media: National press, Regional press
Sector: Computers and telecommunications

Ad
Two press ads, for Virgin Media.

a. One national and regional press ad was headlined "The real deal" and included a table comparing Virgin Media's and Sky's TV, broadband and phone services.  Beside the section "TV", the text for Virgin Media stated "Our top TV package (XL)  Plus access to a library of over 500 films, 1000s of music videos and TV shows you can control like a DVD  And we provide free servicing and repairs" and for Sky, the text stated "Their top TV package (6 Mixes)  Plus nothing".  Beside the section "Broadband", the text for Virgin Media stated "Up to 2Mb with as many downloads as you want", and for Sky the text stated "They say it's up to 8Mb but the further you live from the exchange the slower it gets. And they decide how much you can download".  Beside the section "Phone", the text for Virgin Media stated "Unlimited UK* weekend calls with line rental included" and for Sky, the text stated "Unlimited UK* weekend and evening calls but at the cost of an extra £11 line rental to BT each month".   The final section of the comparison table was headed "The Real Price" and for Virgin Media it stated "£30", and for Sky "£37 (£26 + £11 BT line rental)".  Small print at the bottom of the ad stated "SERVICES AVAILABLE IN VIRGIN MEDIA CABLED STREETS ONLY. Subject to network capacity. 12 month minimum term contract. Offer: £30 a month for 12 months, then standard prices apply (currently £39). Offer ends 31/03/07 ... Broadband: Acceptable Use Policy applies. Speed of internet connection assumes components working at optimum speed and capacity ... ".

b. Another regional press ad  stated "The real deal  TV, Broadband and Phone £30 a month  Digital TV with over 125 channels plus access to a vast library of films and TV shows  Broadband with no download limits   Phone includes line rental and unlimited weekend calls to any UK landline*".  Small print at the bottom of the ad stated " ... 12 month minimum term contract. Offer: £30 a month for 12 months, then standard prices apply (currently £39). Offer ends 31/03/07 ... ".

Issue
1. BSkyB (Sky) and a member of the public challenged whether the comparison in ad (a) was fair, because Sky offered a cheaper 2Mb broadband service, which they believed was more comparable to the Virgin Media (Virgin) service advertised.

Sky also challenged whether:

2. the claim "the real deal", in ads (a) and (b), and the claim "The Real Price" in ad (a) were misleading, because they believed they implied the £30 a month charge was the standard rate for the service, not a promotional offer, and because the ads did not  make clear that the offer was time limited;

3. the text "Our top TV package (XL)  Plus access to a library of over 500 films, 1000s of music videos and TV shows you can control like a DVD" in ad (a) misleadingly implied that the cost for this service was included in the price and not pay per view;

4. the text "Their top TV package (6 Mixes)  Plus nothing" in ad (a), referring to Sky, misleadingly implied that Sky did not offer additional services to their customers, such as Sky Box Office and Sky Anytime on PC or Sky Plus;

5. the claim in ad (a), referring to Virgin Media, "And we provide free servicing and repairs" misleadingly implied Sky offered no similar service, because Sky offered a 12-month warranty covering their digital satellite equipment; and

6. the claim "Up to 2Mb with as many downloads as you want" in ad (a) was sufficiently qualified by the small print text "Speed of internet connection assumes components working at optimum speed and capacity", because they believed it was not prominent enough, compared to the qualification of Sky's broadband speed in the table, and did not make clear the effect that the number of customers using the service had on Virgin's broadband speed.
The CAP Code:  3.1;7.1;18.1;18.2;18.3

Response
1. Virgin said they had been unaware of the 2Mb offering from Sky.

2. They explained that the price advertised was the "real price", because it was the total price that a customer would pay each month with no additional costs, such as line rental.  They pointed out that the price of £30 a month was for 12 months, which was the length of a customer's minimum term contract, and asserted that there was therefore no consumer detriment, because the price the customer paid throughout the minimum contract was the same as "the real deal" or "the real price".  They believed the first line of the terms and conditions made clear that the offer price was for 12 months and that there was a closing date for taking up the offer.

3. They believed there was no implication that all content within the library was included in the monthly fee.  They pointed out that the small print stated "Once purchased, all chargeable On Demand content must be viewed within 24 hours" and believed that made clear that there was a charge for some library content.   Virgin compared the service to a local public library and explained that, while some content was inclusive, there was a charge for selected content.  They explained that all customers who took up the offer had access to the Virgin Media On Demand library with over 1,000 hours of on demand content included in their contract.

4. They pointed out that the text "plus nothing" was opposite the "Plus access to a library of over 500 films ..." in the Virgin Media column for TV services.  Virgin said that Sky Box Office was not comparable to their On Demand service, because the choice on Sky Box Office was limited to a handful of films with start times outside the viewer's control, and it had no DVD functionality.  They also pointed out that Sky Box Office offered pay-per-view content only, whereas Virgin Media's On Demand TV size XL service included over 1,000 hours of non-charged for content, including popular drama, childrens' programmes, comedies and documentaries and "Catch Up TV" (a selection of programmes broadcast on TV over the previous seven days).  Virgin asserted that Sky Anytime was also not comparable to Virgin's On Demand service, because the content was watched via a PC and was not a TV service.  They also believed customers would need a new or recent PC with a broadband connection to access Sky's Anytime service and pointed out that no such requirements were required for either Sky or Virgin Media's TV service.

5. Virgin said they provided free servicing and repairs as an ongoing service.  They pointed out that the Sky Box and mini dish was covered under a 12-month warranty only and that the customer was responsible for maintenance once the warranty had expired.

6. They explained that all residential broadband operators, whether using cable, ADSL, fibre or wireless had, at some point in their networks, components that were shared and were therefore "capacity-managed".   They believed, because of that, references to Sky's and Virgin Media's capacity management processes was therefore not required as part of the comparison table.  They asserted that the distinguishing factor between the two networks was that Virgin Media's cable broadband service was not affected by the distance a customer lived from the exchange, unlike Sky's ADSL broadband service which would get slower the further a customer lived from the exchange.  They argued that they should be able to make that clear.  

Assessment
1. Upheld
The ASA considered that, because Sky's 2Mb broadband service was a more comparable service to Virgin's advertised 2Mb service than Sky's 8Mb broadband service, the comparison was unfair and likely to mislead.

On point 1, ad (a) breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 18.1, 18.2 and 18.3 (Comparisons with identified competitors and/or their products).

2. Upheld
We acknowledged Virgin's argument that, to consumers, the promotional price of £30 a month was the standard price for the minimum term of the 12-month contract.  We noted the small print included information that the promotional price was for the minimum length of the contract only, that the standard price of £39 then applied and that the offer was limited.  We nevertheless considered that this information was not prominent enough to make clear that "the real deal" was a promotional offer and there would be a price rise of at least £9 a month after the deal had expired. We therefore concluded that the claims "the real deal", in ads (a) and (b), and the claim "The Real Price" in ad (a) were ambiguous and that both ads were misleading by omission, because they did not make sufficiently clear that the Virgin offer was a time-limited promotion or give prominent information about the standard price of the service.

On point 2, the ads breached CAP Code clauses 7.1 (Truthfulness) and 18.1, 18.2 and 18.3 (Comparisons with identified competitors and/or their products).

3. Upheld
We noted 1,000 hours of content was included in Virgin Media's subscription price and the unlinked small print referred to chargeable content being used within 24 hours.  We nevertheless considered that the small print text was inadequate to make clear that not all of the content was inclusive, but some was separately chargeable.  We considered that this was compounded by the use of the text "plus nothing" in Sky's section of the comparison, because it did not include Skys pay per view content and, by doing so, implied access to all of Virgins library was inclusive.  Because it was not, we considered the ad to be misleading on this point.

On point 3, ad (a) breached CAP Code clauses 7.1 (Truthfulness), 18.1, 18.2 and 18.3 (Comparisons with identified competitors and/or their products).

4. & 5. Upheld
We noted Virgin's comments but considered that the text "plus nothing" implied that Sky did not offer any additional services to their customers.  We nevertheless understood that Sky offered both a pay per view service and an inclusive service accessible on a PC.  We also understood that Sky gave customers a 12-month warranty on their satellite equipment and that Virgin's contract term, under which customers did not pay extra for repairs and servicing, was also for 12 months.  Because all of Virgin's content was not inclusive and they had not, with equal prominence, made clear that Sky also offered additional services and covered their equipment under a 12-month warranty, we concluded that the claims were misleading by omission.

On points 4 & 5, ad (a) breached CAP Code clauses 7.1 (Truthfulness), 18.1, 18.2 and 18.3 (Comparisons with identified competitors and/or their products).

6. Upheld
We understood that Virgin's broadband speed was not dependent on distance, unlike Sky's DSL network, but also understood that Virgin's cable network became slower the more customers used the service at the same time, because of sharing band-width on the same node before the local cable joined the main fibre optic network.  We understood that prior to accessing the DSLAM and the main fibre optic network Sky's service was unaffected by other users traffic because they had a one-to-one connection, but we noted the speed of the broadband could be adversely affected by how many customers shared the DSLAM or access to the internet.  We also understood that all networks had components that were shared at some point and so were "capacity-managed". However, we considered that ad (a), by stating prominently that Sky's DSL network became slower with distance in the body copy of the ad, but not making a statement of equivalent prominence about their own broadband speed limitation was unfair.  We also acknowledged that Virgin had not used Sky's most comparable internet product of 2 Mb when making the comparison.  However, because Virgin had not shown that the typical speeds achieved by their users were close enough to 2 Mb to mean that their experience was not affected in any meaningful way, we concluded that the claim was misleading by omission.

On point 6, ad (a) breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 18.1, 18.2 and 18.3 (Comparisons with identified competitors and/or their products).

Action
We told Virgin not to repeat the ads and advised them to seek help for the amendments from the CAP Copy Advice team.

Adjudication of the ASA Council (Non-broadcast)

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