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BSkyB punches Virgin Media in ads watchdog fist fight

ASA rules for Rupert's baby as accusations fly

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Virgin Media has lost its battle with BSkyB over a TV, newspaper and website ad that flogged "totally unlimited broadband", after VM claimed the commercials were misleading.

However, the Advertising Standards Authority (ASA) declined to uphold Virgin Media's complaint – in which the telco asserted that BSkyB's network was actually "limited" – relating to a "number of factors inherent in a copper DSL delivered service".

VM added that the distance between a customer's premises and the telephone exchange would affect that punter's broadband speed, meaning that the amount of data downloaded in a given period could potentially lag, and hence wouldn't be "totally unlimited".

Virgin Media offered up the following gripe to the ASA:

These restrictions were not applicable to all providers because some services, like those offered by Virgin [Media], were not delivered over a copper wire. As an example Virgin [Media] stated that a 10-Mb/s Virgin customer with traffic management applying during peak times could theoretically download 87 GB of data over a 24-hour period, whereas a Sky DSL (copper wire) customer on an average speed of 7.5 Mb/s with no traffic management applied could theoretically download 77 GB of data in the same period. For these reasons Virgin considered the claim 'totally unlimited' misleading.

But the ads regulator disagreed.

BSkyB successfully argued to the ASA that the adverts in question had not misled its customers by pointing out, among other things, that it was the only ISP that offered unlimited usage without any provider-imposed limitations.

In its ruling, the ASA said:

We noted that there were inherent limitations in any network, which would limit a consumer's actual broadband speed and therefore the amount of data that a consumer could download over a particular period of time. Some of these limitations, such as signal attenuation, resulted in a greater loss of speed for DSL services compared to fibre-optic services.

However, we considered that consumers would understand that the claim 'totally unlimited' referred to provider-imposed limitations, especially traffic management policies. We did not consider that the average consumer would infer that 'totally unlimited' meant the broadband service was free from the inherent limitations found in the network.

None of the ads featured any speed claims but, where speed claims did appear, advertisers had to include qualifying information about the likely effect of inherent limitations on their ability to achieve advertised maximum speeds. This would include information on signal attenuation, where applicable.

Because we considered that the average consumer would understand from the ads that 'totally unlimited broadband' meant there were no provider-imposed limitations or restrictions on usage, we concluded that the claim was not misleading.

But the ads ding-dong between the sparring telcos didn't end there.

BSkyB successfully managed to get two of its three complaints about Virgin Media TiVo adverts that referenced "free activation" upheld by the ASA.

Nine members of the public also added weight to the claim that Virgin Media had misled consumers with its "free activation" TiVo ad, with seven people challenging that assertion given that a £49.95 installation fee had been applied. ®

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