How the 10% Rule Benefits Broadband Users

28/03/2012 22:30 BST | Updated 28/05/2012 10:12 BST

On the 1 April, UK broadband providers will have to take a new set of guidelines, Committee of Advertising Practice's (CAP) help note, into account when they advertise speeds.

The note, intended to clarify the rules on speed advertising, was released in September last year to a fairly frosty reception.

Ofcom, Which? and the Communications Consumer Panel were all pushing for a ban on the term 'up to', a move which could have helped a sector which has grown to be infamously misleading turn over a new leaf.

Instead, CAP kept 'up to' and asked providers to qualify their broadband speed claims in a dozen more vague and unstandardised ways.

But it did enforce one solid rule.

10% must get the 'top' advertised speed

As a result of the CAP guidance, ISPs must advertise a speed that at least one in ten of their actual users can achieve.

Ofcom's speed research from February this year suggests that, on the basis of this principle:

  • 'up to' 8Mb ADSL services will have to advertise 'at least 10% get 6Mb' and
  • 'up to' 20/24Mb ADSL2+ packages will get an 'at least 10% get 14Mb' label

The 10% rule has two benefits for broadband users. First, although broadband providers can still advertise an 'up to' speed, they'll also have to make clear what consumer groups have been saying for years: that the top 'ideal world' speed is a 'fantasy world' speed, no one can get it.

Second, since ISPs are required to base their speed estimate on research undertaken on a broad sample of their actual users consumers will be able to see, for the first time, differences between the providers.

Although these will probably be small - even as the fastest ADSL2+ network it's likely that O2 and Be's average will only be a few Mb higher than other ISPs - it's a step in the right direction.

What's next?

The 10% rule was the source of much ire from consumer groups and commentators, Which? called it a "green light to mislead."

In their preliminary ruling CAP had already made it clear that they weren't going to eliminate 'up to' altogether but they did consider tougher guidance, including an average based on 50% of an ISP's users and a typical speed range based on everyone.

These have now fallen by the wayside but the help note does leave the door open to further reform.

In fact, if the Advertising Standards Authority (ASA) gets its act together, the note's vagueness could end up being its saving grace.

For example, according to the guidelines, advertised speeds should reflect expected usage.

When "a significant proportion" of broadband customers cannot carry out "to an acceptable standard" certain online activities that they might "reasonably expect" to use, the ISP should make clear how large that proportion is.

In December 2011, 1.6 million users a day accessed TV shows using BBC iPlayer. Shouldn't all ISPs with high usage or unlimited deals be making clear what proportion of their users can access this service?

And might it not be an idea for broadband providers who are also advertising a HD TV service to include a X% of our customers receive speeds below 3.2Mb (minimum speed to access iPlayer HD) warning?

The CAP guidance doesn't make it clear but the ASA can set precedents in this area, in response to complaints about misleading adverts.

Things look hopeful. But only sort of.

The ASA might well choose to ignore the small print of the CAP guidance: it's entitled to - the note, "neither constitutes new rules nor binds the Advertising Standards Authority (ASA) Council in the event of a complaint" - and it has form.

In a December 2011 judgment, for example, the body ruled against a consumer who complained that an online speed checker - theoretically the most accurate kind of speed ad - had misled.

The checker promised average speeds around 29.9Mb. After signing up, the consumer was told that 17.9Mb was the household's maximum.

To me that says that broadband providers aren't accountable for the information they provide, even to very the minor degree of letting a rightly unhappy customer escape a long contract.

The CAP guidance says that consumers should be "urged" to take such tests and Ofcom say that ISPs should allow customers unhappy with their speeds to leave within three months. For either to be meaningful, the ASA needs to set up.

Speeds matter

The broadband speeds debate has been going on for so many years that it's sometimes easy to forget why it matters.

Clearer speed ads aren't just fairer. UK households have been slow to take up fibre products, according to analysts Point Topic just 5% of broadband users have superfast connections over 25Mb.

Low take up stifles further investment in our infrastructure. If the ASA enforced rules which made clear the very real differences between the two technologies that might not be the case.