NAD Recommends DISH Discontinue or Modify Certain Comparative Storage Capacity and Simultaneous Recording Capability Claims for Hopper 3 DVR

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New York, NY – December 23, 2020 – The National Advertising Division (NAD) of BBB National Programs recommended that DISH Network, LLC discontinue or modify express and implied claims that the DISH Hopper 3 DVR is:

• “TV’s most powerful DVR”;
• “Records . . . 2 times more than our competition” (or “more shows”); and
• Has “twice the storage space . . . as any of our competitors” (or superior storage space).

The claims at issue, which appeared in internet and television advertising, were challenged by AT&T Services, Inc. 

In response to AT&T’s concerns that the challenged television commercials fail to specify which Hopper (or Hoppers) offer the touted performance benefits, DISH committed to voluntarily modify its advertising to specify the Hopper (or Hoppers) with these capabilities. 

DISH offered a consumer perception survey in support of its contention that its “Girls’ Night In” television commercial does not convey an implied comparative message and that, even if it does, that comparison is to hardware DVRs, not cloud DVRs. While NAD determined that the survey had a proper survey population and control, it was concerned that (among other things) the survey’s two open-ended questions simply did not test whether panelists took away a comparative message from the advertisement. NAD noted that open-ended questions may not elicit an exhaustive playback from consumers that may be perceived in the tested advertising. 

Thus, NAD declined to rely on the advertiser’s consumer perception survey and instead stepped into the shoes of the reasonable consumer. NAD determined that a material percentage of consumers would understand the comparative claims to apply to all types of DVRs and are not limited to exclude streaming services such as AT&T TV and their cloud DVRs.

NAD considered the evidence offered by DISH in support of its claims. It was uncontested that DISH’s Hopper 3 records up to 16 shows at once and holds up to 2,000 hours of SD programming or 500 hours of HD programming. However, NAD determined that the Hopper 3 DVR does not possess superior recording and storage capabilities to cloud DVRs, which are offered by AT&T TV and other streaming services. Further, NAD determined that another third party provider (Cox) is a viable competitor to DISH and that Cox’s DVR service surpasses DISH’s Hopper on the claimed performance benefits: number of shows recorded simultaneously, and hours of video stored. 

Therefore, NAD determined that the advertiser did not have a reasonable basis for the express and implied claims that the DISH Hopper 3 is “TV’s most powerful DVR,” “Records . . . 2 times more than our competition” (or “more shows”) and has “twice the storage space . . . as any of our competitors” (or superior storage space), and recommended that the claims be discontinued or modified to limit the comparisons to better fit the support provided.

In its advertiser’s statement, DISH stated that it “believes in the self-regulatory process and will comply with NAD’s decision,” but noted its disappointment with the fact that its consumer perception evidence was discounted. 

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About BBB National Programs: BBB National Programs is where businesses turn to enhance consumer trust and consumers are heard. The non-profit organization creates a fairer playing field for businesses and a better experience for consumers through the development and delivery of effective third-party accountability and dispute resolution programs. Embracing its role as an independent organization since the restructuring of the Council of Better Business Bureaus in June 2019, BBB National Programs today oversees more than a dozen leading national industry self-regulation programs, and continues to evolve its work and grow its impact by providing business guidance and fostering best practices in arenas such as advertising, child-directed marketing, and privacy. To learn more, visit bbbprograms.org.

About the National Advertising Division: The National Advertising Division (NAD), a division of BBB National Programs, provides independent self-regulation and dispute resolution services, guiding the truthfulness of advertising across the U.S. NAD reviews national advertising in all media and its decisions set consistent standards for advertising truth and accuracy, delivering meaningful protection to consumers and leveling the playing field for business.