What are the acceptable limits of "unlimited" internet?

18 Apr 2013

For years we’ve argued against the sheer ridiculousness of the Advertising Standards Authority (ASA) allowing fixed and mobile ISPs to advertise services with stated limits as “unlimited”. Recently, the ASA has upheld complaints against both Virgin Media and T-Mobile when advertising “unlimited” services, claiming that the limits they imposed went beyond the permitted “moderate restrictions”.

The networks have told us that they’re confused about what they can and can’t advertise as “unlimited”; broadband customers are confused; we’re confused. So we asked the ASA to define exactly what counts as a “moderate restriction”. It sent us the text of a Help Note, that’s designed to clear this all up:

Providers of ‘unlimited’ telecommunications services must be able to demonstrate that a provider-imposed limitation is not contrary to the average consumer’s expectation of a service advertised as ‘unlimited’.”

How many hours of traffic management would be reasonable? Nobody knows

We’d argue that the average consumer’s expectation of a service marketed as “unlimited” is that it imposes no limitations whatsoever, but the ASA operates on a higher linguistic plane than the rest of us.

“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.

Where they affect download speeds, for the downloading of large files on peer-to-peer protocols, for instance, providers should be able to demonstrate that the effect of a traffic-management policy or mechanism is not beyond what consumers would reasonably expect.”

Wooly phrases such as “close to the consumer’s normal connection speed” and “what consumers would reasonably expect” are as (deliberately?) ambiguous as the “moderate restriction” phrase they’re meant to be clarifying. However, the ASA does provide some firmer guidance on what is and isn’t acceptable.

“Virgin’s traffic management policy included a flat reduction of certain users’ speed by 50% and they did not provide sufficient evidence to demonstrate that this was not beyond consumers’ reasonable expectations of a restriction that can be described as “moderate”.”

As a result of that adjudication, Virgin Media reduced its traffic throttling from 50% to 40%, according to a report from Thinkbroadband, but even the ASA isn’t sure if that’s good enough to meet its own criteria. “The ASA has contacted us and the 40% throttle level has not had approval,” Thinkbroadband reported. “It appears the jury is still out on whether the 40% reduction in throughput counts as a moderate reduction in speed.”

“[Likewise, regarding T-Mobile’s] slowing down of peer-to-peer activity between the hours of 8am – 2am, T-Mobile had not provided evidence to show that the restriction was moderate and in line with consumers' reasonable expectations of an ‘unlimited’ service.”

How many hours of traffic management would be reasonable? Nobody knows.

Utter confusion

With the ASA failing to provide anything but vague, meaningless guidelines, is it any wonder that ISPs complain they don’t know what they’re allowed to advertise, and are made to look bad when the ASA upholds complaints against them? An ASA spokesman told us:

“We appreciate that ISPs/networks might be frustrated that we haven’t comprehensively set out what ‘moderate’ is or what the expectations of the average consumer are.

“That said, the Help Note was, as you’ll appreciate, fundamentally intended to raise the bar on the use of the ‘unlimited’ claims as a direct response to consumer concerns about their proliferation in marketing for products that many did not feel were ‘unlimited’ in practice. The fact that there is going to be a period where there are several ASA rulings setting a precedent on this issue is testament to this.”

The only thing the ASA has “raised the bar” on is Orwellian doublespeak.  

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