NAD Recommends Comcast Discontinue Express, Implied Claims That AT&T ‘Deceives’ Customers, Comcast to Appeal

New York, NY – July 17, 2018 – The National Advertising Division has recommended that Comcast Cable Communications, LLC, discontinue the advertising claim, express or implied, that AT&T deceives potential customers concerning the speed or reliability of its internet service, as well as the claim that Comcast offers the most reliable network.

NAD also determined, however, that Comcast had substantiated certain claims regarding the availability of AT&T’s fiber network and certain advertised speeds, but recommended  Comcast modify its advertising to avoid conveying the message, express or implied, that AT&T does not deliver the speed tier that its customers subscribe to, or that AT&T is deceiving its customers regarding the speed tier that they subscribe to.

Comcast said it would appeal NAD’s adverse finding to the National Advertising Review Board (NARB).

NAD is an investigative unit of the advertising industry’s system of self-regulation. It is administered by the Council of Better Business Bureaus.

AT&T challenged claims made by Comcast in one radio and two television advertisements. The radio spot states: “And now another AT&T word of the day.  Today’s word: ‘Internot.’  Definition: internet that could be only a fraction of the speed advertised because of where you live – and you pay the same price.  Let’s hear it in a sentence: ‘I thought that I could get AT&T internet with up to 50 megabit speeds.  These Internot providers only delivered 10.  AND I paid the same price.  If I’m only getting 20% of the speed I paid for, shouldn’t I be paying for only 20% of the price?  I mean, right?’  Internot – know it, so you can know how to avoid it.  Only Xfinity delivers the fastest, most reliable Internet. . .”

NAD examined two claims in the radio commercial.  The first concerned the pun “Internot,” defined in the spot as “internet that could be only a fraction of the speed advertised because of where you live – and you pay the same price.”

NAD noted in its decision that it was undisputed that AT&T charges $40 for the fastest speed available to a customer, whether the speed of that service is 50 Mbps, 25 Mbps, 18 Mbps, or 10 Mbps. Comcast argued that a significant proportion of AT&T’s customers cannot, in fact, obtain 50 Mbps service, a contention AT&T did not dispute. Rather, AT&T argued that since 50 Mbps service is available to more than half of its customers, NAD precedent permits it to advertise the service.

NAD determined that while AT&T service may be sufficiently available to allow it to broadly advertise its service, nothing prevents Comcast from truthfully and narrowly disparaging AT&T’s pricing policies in its advertising.  “The claim, ‘internet that could be only a fraction of the speed advertised because of where you live – and you pay the same price,’ truthfully and accurately describes AT&T’s pricing policies,” NAD wrote. “Describing this service as ‘internot,’ a clear criticism of the policy, does not transform this otherwise truthful and narrowly tailored claim into false denigration.”

NAD found that the advertiser had substantiated its claim that AT&T offers “internet that could be only a fraction of the speed advertised because of where you live – and you pay the same price.” However, NAD further recommended that the advertiser modify its advertising to avoid conveying the messages, express or implied, that AT&T does not deliver the speed tier that its customers subscribe to or that AT&T is deceiving its customers regarding the speed tier that they subscribe to.

The television commercials both feature a character called Greg, an AT&T employee who is a member of a fictional support group made up of fairy tale characters famous for telling falsehoods, including Pinocchio, the Boy Who Cried Wolf and Chicken Little.

In one commercial, woman with a “Chicken Little” name tag says, “Greg was telling people everywhere that they could get AT&T Fiber when it’s really only available to, like, 10 percent of their customers.”  The voice over says, “Seriously AT&T?” and text appears saying the same thing.  A character with a “Pinocchio” name tag asks, “You guys hiring?”  The voiceover then states, “Xfinity delivers gig speeds to more homes than anyone.”

In the second, Greg says, “I sold AT&T internet even though I knew it wasn’t the fastest or most reliable.” The Evil Queen says, “Words have consequences, young man.”  The voiceover states, “Face the facts, AT&T” and the same words appear on the screen.  The voiceover then states, “Only Xfinity delivers the fastest, most reliable internet.”

NAD noted in its decision that it has long recognized an advertiser’s right to make literally truthful and accurate advertising claims – sometimes at the expense of its competitors.  Denigrating claims, however, must be truthful, accurate and narrowly drawn.

NAD concluded that the claim that AT&T Fiber is “really only available to like 10% of their customers,” was substantiated.

However, NAD found Comcast could not support the claim that AT&T “was telling people everywhere that they could get AT&T Fiber when it’s really only available to, like, 10 percent of their customers.”

NAD noted that nothing in its decision prevents Comcast from advertising the limited availability of AT&T Fiber provided that Comcast avoids conveying an unsupported message that AT&T is misleading customers about its availability.

Following its review of the second commercial, NAD determined that there was no evidence in the record that AT&T deceives customers about the speed or reliability of its service and NAD recommended that Comcast discontinue the claim, express or implied.

Finally, NAD examined the claim – featured in radio advertising and at the end of one television commercial – that “Only Xfinity delivers the fastest, most reliable internet.”  As substantiation, Comcast supplied the FCC’s 2016 Measuring Broadband America Fixed Broadband Report.   The FCC Report was based on measurements collected from 4,281 volunteer panelists at 13 ISPs.

AT&T did not dispute that the FCC Report demonstrated that Comcast was the “most reliable” network, but rather chose to contend that the data in the FCC Report was too old to substantiate a reliability claim comparing the present-day performance of Comcast to all other ISPs.  The FCC Report was issued on December 1, 2016 and was based on data that was collected in September of 2015.

NAD noted in its decision that the networks measured in the FCC Report are different from the networks in use today.  “While it is possible that Comcast provides more reliable service than other ISPs, the FCC Report simply does not substantiate Comcast’s ‘most reliable network’ claim because the FCC Report measures networks that are different than the networks in use today,” NAD wrote.

NAD recommended that Comcast discontinue the claim that it offers the most reliable network.

Comcast, in its advertiser’s statement, said the company will appeal NAD’s decision to the NARB. Comcast said the company “believes that NAD erred, first, by inserting itself into creative choices notwithstanding the validity of the underlying claims, and second, by not taking seriously the impact of AT&T’s refusal to disclose material deficiencies of its network upon the competitive market.  Finally, Comcast respectfully disagrees with NAD’s determination that the failure of the FCC to update its annual broadband report means that Comcast can no longer support its longstanding claim it offers “the most reliable network.”

Note: A recommendation by NAD to modify or discontinue a claim is not a finding of wrongdoing and an advertiser’s voluntary discontinuance or modification of claims should not be construed as an admission of impropriety. It is the policy of NAD not to endorse any company, product, or service. Decisions finding that advertising claims have been substantiated should not be construed as endorsements.