NAD RECOMMENDS CABLEVISION MODIFY ‘3X FASTER’ CLAIMS FOR ‘OPTIMUM ONLINE ULTIMATE TRIPLE PLAY’ Finds Advertiser Can Support Internet-Speed Claims

New York, NY – Jan. 24, 2012 -The National Advertising Division of the Council of Better Business

Bureaus has recommended that Cablevision Systems Corporation modify “3x faster” claims to better

disclose the basis of comparison and limit all future “3X Faster” claims to download speeds. NAD

determined that the advertiser could support the claim that Optimum online has Internet “speeds up

to 50 Mbps for downloads and up to 8 Mbps for uploads.”

The claims at issue were challenged before NAD, the advertising industry’s self-regulatory forum, by

Verizon Communications, Inc.

NAD examined the following express claims:

• “Internet speeds 3X faster than FiOS”

• “NEW! 3X faster than FiOS”

• “ALL NEW! … 3X faster Internet than FiOS”

• “You’ll get Optimum Online Boost Plus, with Internet three times faster than FiOS”

• Optimum online has Internet “speeds up to 50 Mbps for downloads and up to 8 Mbps for

uploads”

• “Verizon FiOS Triple Play” download speeds are “at 15 Mbps.”

NAD also consider the following implied claims:

• Cablevision’s Internet speed offerings are three times faster than the Internet speeds that

FiOS can offer

• Cablevision has newly improved the speed of its Internet offerings to be three times faster

than those of FiOS

• Cablevision provides sustained Internet speeds of 50 Mbps for downloads and up to 8 Mbps

for uploads

• FiOS and/or FiOS Triple Play offers Internet download speeds of no more than 15 Mbps.

(Full text of decision available to media upon request.)

The issue before NAD was what message or messages were conveyed by the advertiser’s television

commercials, direct mailings, free-standing inserts and website promotions for Optimum Online

Ultimate Triple Play bundled package with Boost Plus Internet, advertised as “3X Faster than FiOS.”

Verizon asserted that Cablevision’s claim that its Optimum Online Boost Plus Internet service is “3X

faster than FiOS” is literally false because Verizon FiOS offers Internet download speeds of up to 150

Mbps and upload speeds of up to 35 Mbps – both as stand-alone service and as part of a Triple Play

bundle.  In addition, Verizon argued that the claim is not – as the advertiser contended – limited to

a comparison of Cablevision’s newest triple play package with its fastest Internet service (Boost Plus

at 50Mbps/ 8Mbps) to Verizon’s “most advertised” or “comparably priced” triple play package at 15

Mbps/ 5Mbps.

Cablevision, meanwhile, argued that the challenged  “3X faster” claims truthfully compared the

maximum advertised Internet speed offered by its Ultimate Triple Play package with Boost Plus

Internet (i.e., 50 Mbps downstream and 8 Mbps upstream) and the maximum advertised Internet

speed offered by Verizon’s comparably priced FiOS Triple Play package (i.e., 15 Mbps downstream

and 5 Mbps upstream) – a package advertised extensively by Verizon in Cablevision’s service area.   In assessing the message or messages communicated by an advertising claim, NAD considers the

literal meaning of the challenged claim, the context in which the claim appears, and the complexity

of the product or service offered.

Employing these standards, NAD determined that at least one interpretation of Cablevision’s “3X

Faster” claims is that Cablevision’s Boost Plus Internet service is, overall, three times faster than

FiOS’ Internet service – a claim which is not supported by the evidence in the record.

The advertiser argued that Verizon’s comparably priced Triple Play package is heavily promoted by

Verizon as “FiOS,” and it is reasonable to expect that consumers viewing the challenged Cablevision

advertisements equate the reference to “FiOS” with  Verizon’s most advertised Triple Play bundle.

NAD did not agree.

“While it is true that NAD considers challenged claims in the context of industry practices and the

marketplace, advertisers cannot require consumers to recall advertisements of competitors in order

to accurately interpret the meaning of their own advertising claims,” NAD noted in its decision. “This

is especially true in this marketplace where technology is constantly evolving and new products with

faster Internet speeds are frequently advertised.”

NAD next considered the advertiser’s argument that the basis of comparison for the “3X faster than

FiOS” claims was made clear by the disclosure: “Speed comparison based on Optimum Online Boost

Plus at 50 Mbps and Verizon FiOS Triple Play at 15 Mbps.”

In this context, NAD determined that the advertiser’s disclosure contradicted the main message

conveyed by the “3X Faster than FiOS” claim and was insufficient to adequately qualify the

challenged advertisements’ prominent, overarching message that Boost Plus is three times faster

than “FiOS.”

NAD recommended that the advertiser modify the challenged advertisements to make the basis of

comparison for the “3X Faster” claim clear to consumers by adding it to the main claim rather than

disclosing the basis of comparison in a fine print disclosure.

NAD noted in its decision that the upstream speeds  available to consumers who subscribe to the

Optimum Online Ultimate Triple Play bundled package with Optimum Boost are not “3X Faster” than

the upstream speeds available via Verizon’s Triple Play bundled package.

NAD further noted that the evidence in the record suggested that there is a lack of consumer

awareness of basic elements of broadband performance. In fact, NAD noted in its decision, one goal

of the Federal Communications Commission report, “Measuring Broadband America: Report on

Consumer Wireline Broadband Performance in the U.S.,” was to provide consumers with the

information they need to make informed choices about purchasing and using broadband.  It is wellestablished that the self-regulatory forum attempts to harmonize its efforts with those of the

regulatory world.   Therefore, in an effort to encourage Internet service providers (ISPs) to provide

consumers with clear and accurate information regarding their broadband service, NAD

recommended that the advertiser clearly limit all future “3X Faster” claims to download speeds.

NAD then considered whether Cablevision could support its “up to 50 Mbps/8 Mbps” Internet speed

claims. After a thorough review of the advertiser’s evidence, NAD determined that the advertiser’s

speed tests demonstrated that on average, Boost Plus subscribers receive downstream speeds of at

or near 50 Mbps and upstream speeds of 8Mbps.

In support of its description of The Ultimate Triple Play with Boost Plus bundled package as “new”

the advertiser noted that, when The Ultimate Triple Play with Boost Plus launched in May 2011, it

was an “all-new” bundled package that included Cablevision’s “new” Boost Plus internet service tier.

The advertiser assured NAD that it would retire its “new” claims for The Ultimate Triple Play and

Boost Plus after six months, or by November of 2011.

Cablevision, in its advertiser’s statement, said the company continues “to believe that consumers

reasonably understand that this ‘3X faster’ claim refers to our download speeds versus Verizon’s

basic FiOS service tier.  Nevertheless, as a supporter of industry self-regulation, we will take NAD’srecommendation that we clarify the basis of comparison into account when crafting future

advertising.”

 

NAD’s inquiry was conducted under NAD/CARU/NARB Procedures for the Voluntary Self-Regulation of National Advertising.  Details of the initial inquiry, NAD’s decision, and the advertiser’s response will be included in the next NAD/CARU Case Report.

About Advertising Industry Self-Regulation: The National Advertising Review Council (NARC) was formed in 1971. NARC establishes the policies and procedures for the National Advertising Division (NAD) of the Council of Better Business Bureaus, the CBBB’s Children’s Advertising Review Unit (CARU), the National Advertising Review Board (NARB) and the Electronic Retailing Self-Regulation Program (ERSP).

The NARC Board of Directors is composed of representatives of the American Advertising Federation, Inc. (AAF), American Association of Advertising Agencies, Inc., (AAAA),  the Association of National Advertisers, Inc. (ANA), Council of Better Business Bureaus, Inc. (CBBB), Direct Marketing Association (DMA), Electronic Retailing Association (ERA) and Interactive Advertising Bureau (IAB).  Its purpose is to foster truth and accuracy in national advertising through voluntary self-regulation.

NAD, CARU and ERSP are the investigative arms of the advertising industry’s voluntary self-regulation  program. Their casework results from competitive challenges from other advertisers, and also from self-monitoring traditional and new media. NARB, the appeals body, is a peer group from which ad-hoc panels are selected to adjudicate NAD/CARU cases that are not resolved at the NAD/CARU level. This unique, self-regulatory system is funded entirely by the business community; CARU is financed by the children’s advertising industry, while NAD/NARC/NARB’s primary source of funding is derived from membership fees paid to the CBBB. ERSP’s funding is derived from membership in the Electronic Retailing Association. For more information about advertising industry self-regulation, please visit www.narcpartners.org.