Hawaiian Telcom Agrees to Modify, Discontinue Certain Claims Related to its High-Speed Internet Service and for its TV Service Following Challenge by Charter

New York, NY – July 11, 2019 – Hawaiian Telcom has agreed to modify or discontinue certain claims for its fiber internet and television services, following a challenge by Charter Communications, Inc. Further, the National Advertising Division recommended that Hawaiian Telcom discontinue or modify comparative superior performance claims, implied disparaging performance claims, and its “fastest internet” claim.

NAD is an investigative unit of the advertising industry’s system of self-regulation and is a division of the BBBNP’s self-regulatory and dispute resolution programs.

The claims challenged by Charter include, but were not limited to, claims regarding a dedicated internet line; speed performance and availability claims regarding Hawaiian Telcom’s fiber speeds of 300 Mbps, 500 Mbps, and 1 Gbps services; speed superiority and exclusivity claims; upload speed importance claims; fastest internet claims; as well as a variety of implied claims including, for example, that Hawaiian Telcom’s fiber tiers of service, including its Fiber 1 Gig product, are broadly available to most, if not all, customers within Hawaii.

Hawaiian Telcom informed NAD in writing that it permanently discontinued claims that upload speeds are of equal or greater importance than download speeds, that it has the fastest download speeds or is the exclusive provider of 1 Gbps download speeds, and that its residential service provides a dedicated internet line so you don’t have to share. Hawaiian Telcom also agreed to modify its 1 Gbps fiber claims in order to disclose that its 1 Gbps service delivers up to 940 Mbps download. The voluntarily discontinued or modified claims will be treated, for compliance purposes, as though NAD recommended their discontinuance and the advertiser agreed to comply.

NAD was concerned that the advertising could convey the message that Hawaiian Telcom’s fiber service is more available than unavailable. Hawaiian Telcom explained that, although its flagship fiber speeds are available to less than 50% of the population, it is able to target its advertising to areas where fiber is more available than unavailable. Where Hawaiian Telcom cannot target its advertising, or when the advertising reaches an audience for whom Hawaiian Telcom’s fiber service is more unavailable than available, pursuant to NAD precedent, NAD recommended the advertiser make clear that its fiber service is more unavailable than available and further recommended that when it advertises its fiber service, the recommended qualifying language about the availability of its service should be made as part of the main claim (e.g., disclosed with prominence and clarity close to the main claim) and disclosed visually if the claim is made visually, and orally if the claim is made orally. When it sends direct mail to home addresses, it knows whether or not fiber is available at that home address. NAD agreed that no availability disclosure is necessary in such targeted advertising. Where Hawaiian Telcom targets its advertising to areas where fiber is more available than unavailable, NAD recommended a “check availability” disclaimer.

NAD concluded that, although Hawaiian Telcom delivers superior upload speeds to Charter, in a context describing the use of a large number of multiple devices Hawaiian Telcom lacked a reasonable basis for its superior performance claims based on upload speeds. NAD recommended that Hawaiian Telcom discontinue its comparative superior performance claims or modify those claims to provide the intended monadic context. NAD also recommended that Hawaiian Telcom discontinue implied disparaging performance claims or modify those claims to provide the intended monadic context. NAD noted that nothing in the decision prevents Hawaiian Telcom from making superior performance claims where the basis of comparison is clearly disclosed and appropriately limited, and where the advertiser can substantiate the claim that the difference in upload speeds is meaningful to consumers.

With regard to Hawaiian Telcom’s “fastest internet” claim, NAD recommended that it be discontinued or modified to clearly convey, in the main claim, that Hawaiian Telcom offers the fastest combined speeds (upload plus download). NAD noted that nothing in this decision prevents Hawaiian Telcom from making a parity claim stating, for example, that both Hawaiian Telcom and Charter offer speed tiers that deliver download speeds of approximately 1 Gbps.

Finally, NAD recommended that Hawaiian Telcom discontinue the claim “TV with HD for just $25” or modify it to more adequately explain the limitations of its least expensive television package (i.e. the introductory package includes no sports or entertainment channels). In its advertiser’s statement, Hawaiian Telcom stated that it “agrees to comply with NAD’s recommendations” and that it “has always been committed to accurately informing consumers as to the level of availability of Hawaiian Telcom’s services.”