Virgin Media is in hot water with a UK advertising regulator after the company’s marketing department borrowed one of the tricks successfully employed in the United States: selling “unlimited broadband” service that actually is not unlimited at all.

Competitors BSkyB and BT jointly complained to the Advertising Standards Authority about misleading ad claims from Virgin Media that promise unlimited broadband, without bothering to clearly mention Virgin uses a “traffic management policy” that slashes speeds in half when a customer downloads more than 11GB during peak usage times.

Virgin defended its advertising, claiming its speed throttle is so infrequently activated that 97.7% of its customers would never encounter it.

But the ASA would have none of that, noting Virgin’s advertising campaign specifically targets customers who lust for faster speed and are engaged in bandwidth intensive activities.

The ad claim: “The faster your broadband speed, the more you’ll be able to do online. So, if there are a few of you at home gaming, downloading, streaming movies and shopping, then mega speeds of up to 100Mbps will let you all do your thing without slowing each other down.”

The tiny fine print.

“In that context we considered that the restriction of reducing users’ download speeds by 50% was not moderate and that any reference to it was likely to contradict, rather than clarify, the claims that the service was ‘unlimited’,” the ASA said. “We therefore concluded that the claim ‘unlimited’ was misleading.”

A Virgin spokesperson explained the “unlimited” in the advertising actually referred to one’s ability to use their account as often as they like without worrying about overlimit fees.

“Unlike BT or Sky, all Virgin Media customers can download as much as they like, safe in the knowledge we’ll never charge them more.”

The ASA itself is not militant adhering to the dictionary definition of “unlimited” either.

The ASA, which previously banned more than two dozen Virgin ads for stretching the truth, ruled this one misleading as well because Virgin Media crossed the line imposing restrictions “that were more than moderate:”

While the claim “no hidden charges” made clear that users would not be charged for downloading or browsing, we considered that the inclusion of the claims “unlimited” and “no caps” implied that there were no other restrictions to the service, regardless of how much data users downloaded and browsed. Virgin Media’s traffic management policy reduced users’ download speeds by 50% if they exceeded certain data thresholds and we considered that this was an immoderate restriction to the advertised “unlimited” service. We therefore concluded that the claim “Unlimited downloads Download and browse as much as you like with no caps and no hidden charges” misleadingly implied that there were no provider-imposed restrictions on a customer’s ability to download data.

“The problem is that the service claims to be unlimited but is too limited,” comments Stop the Cap! reader James, who almost thought this was an April Fools’ prank. “A little limited would be just fine. So if you claim your service is unlimited, consumers should expect it be subject to moderate limitations?”

Virgin has since slightly relaxed its speed throttle; violators now face a 40% speed cut when they are found to be downloading “too much” during peak usage periods.

For UK broadband users, the larger question is why the ASA simply didn’t reach for the dictionary when attempting to define “unlimited.”

“If a broadband provider wants to advertise unlimited service, they should simply offer it,” says Stop the Cap! reader Geoff Peale. “Calling it unlimited while interfering with your speed is nothing short of trickery, and the ASA should know better.”

[flv width=”384″ height=”236″]http://www.phillipdampier.com/video/BBC News Twenty five Virgin Media ads found to be misleading 10-11-12.flv[/flv]

The Advertising Standards Authority (ASA) has banned 25 Virgin Media adverts for being either misleading or factually incorrect in the past 18 months. The BBC’s Watchdog took a humorous look at them to find out why so many are falling afoul of the regulator. (6 minutes)

Thanks to readers James and Geoff for sharing the story.

One of the side benefits of Google getting into the broadband provider business is learning first-hand what is reality and what represents provider spin and marketing nonsense used to justify high prices and usage limits.

As Google Fiber slowly spreads across Kansas City, the search engine giant is gaining first hand-experience in the broadband business. Google understands what cable operators endured in the 1980s and what Verizon was coping with until it pulled the plug on FiOS expansion: the upfront costs to build a new network that reaches individual subscribers’ homes and businesses can be very high. But once those networks are paid off, revenue opportunities explode, particularly when delivering broadband service.

Milo Medin, a former cable Internet entrepreneur and now vice president of access services at Google, presented a cogent explanation of why Google can make gigabit broadband an earner once construction costs are recouped. He demonstrated the economics of fiber broadband at a meeting of the San Jose chapter of the IEEE.

In addition to a long term investment in fiber, and the new business opportunities 1,000Mbps Internet provides, Google has learned from the mistakes other utilities have made and is trying to establish close working relationships with local governments to find ways to cut costs and bureaucracy.

In Kansas City, Google has placed staff in the same office with city zoning and permit officials. Working together in an informal public-private partnership to cut red tape, local inspectors have agreed to coordinate appointments with Google installers to reduce delays. That alone reportedly saves Google two percent in construction expenses.

“Governments have policies that can make it easy or hard, so I say, ‘if you make it hard for me, enjoy your Comcast,’” Medin said.

Internet traffic vs. costs

Medin notes broadband adoption and expansion in the United States is being artificially constrained by the marketplace, where wired providers are resting on their laurels.

More than a decade ago, people paid $40 a month for 4-5Mbps service, Medin noted.

Providers have kept the price the same, arguing they create more value for subscribers with ongoing speed increases.

But Medin notes overseas, prices are falling and speeds are increasing far faster than what we see in North America.

“Broadband in America is not advancing at nearly the pace it needs to be,” Medin argues. “Most of you have seen dramatic changes in wireless, but there’s never been a real step function increase in wired. That’s what’s needed for us to retain leadership in technology — and not having it is a big problem.”

Medin points to OECD statistics that show the cost per megabit per month in the U.S. is the sixth highest among 34 OECD nations. Only Mexico, Chile, Israel, New Zealand, and Greece pay higher prices. Every other OECD nation pays less.

By leveraging fiber optics, which every provider uses to some extent, costs plummet after network construction expenses are paid off. In fact, despite the explosion in network traffic, provider bandwidth costs remain largely flat even with growing use, which makes the introduction of Internet Overcharging schemes like usage caps and consumption-based pricing unjustified.

“Moving bits is fundamentally not expensive,” said Medin.

In 1998, when cable broadband first became available in many markets, the monthly price for the service was around $40 a month. Internet transit prices — the costs to transport data from your ISP to websites around the world averaged $1,200 per megabit that year. Today that cost has dropped below $4 per megabit and is forecast to drop to just $0.94 by 2015.

Data caps protect incumbent big studio and network content creators at the expense of independent producers and others challenging conventional entertainment business models.

That was the conclusion of several writers and producers at a communications policy forum hosted by Public Knowledge, a consumer group fighting for an open Internet.

A representative from the Writers Guild of America West noted that cord-cutting paid cable TV service has become real and measurable because consumers have a robust online viewing alternative for the first time. John Vezina, the Guild’s political director, noted how Americans watch television is transitioning towards on-demand viewing.

New types of short-form programming and commissioned series for online content providers like Netflix are also changing the video entertainment model.

Welch: It is about the money.

But a digital roadblock erected by some of the nation’s largest broadband providers is interfering with that viewing shift: the data cap.

Data caps place artificial limits on how much a customer can use their Internet connection without either being shut off or finding overlimit fees attached to their monthly bill. Critics contend usage caps and consumption billing discourage online viewing — one of the most bandwidth intensive applications on the Internet. With broadband providers like Time Warner Cable, AT&T, Verizon, and Comcast also in the business of selling television packages, cord-cutting can directly impact providers’ bottom lines.

Providers have traditionally claimed that usage limits are about preserving network resources and fairness to other customers. But Time Warner Cable admits they exist as a money-making scheme.

Rachel Welch, vice president of federal legislative affairs at Time Warner Cable, says the cable company is not worried about limiting data consumption. It considers monetizing that consumption more important.

“We want our customers to buy as much of the product as possible,” Welch told PC World. “The goal of companies is to make money.”

Time Warner now offers customers a choice of unlimited service or a $5 discount if customers keep their monthly usage under 5GB, but some worry that is only a prelude to introducing expanded usage limits on a larger number of customers in the future.

For many consumers already hard-pressed by high broadband bills, worrying about exceeding a data allowance and paying even more may keep viewers from watching too much content online.

For that reason, Vezina called data caps “anti-innovation.”

“It hurts consumers [and] it hurts creators who want to get as much out to the public in as many ways” as possible, he said.

Public Knowledge has become increasingly critical of data caps in the last two years. The organization has questioned how ISP’s decide what constitutes a ‘fair’ usage limit and criticized inaccurate usage meters that could potentially trigger penalties and overlimit fees.

Atlantic Canada provider Eastlink still offer unlimited access for speeds of 20Mbps or slower, but the fastest speeds now come with usage caps and overlimit fees, as depicted on this sample invoice.

While broadband pricing in the United States depends primarily on whether one lives in a rural or urban area, in Canada, which province you live in makes all the difference.

Canadian broadband pricing varies wildly across different provinces. If you live in northern Canada, particularly in Nunavut or the Yukon, Internet access is slow and prohibitively expensive, assuming you can buy it at any price. Customers in Atlantic provinces including Nova Scotia, Prince Edward Island, Labrador and Newfoundland pay the next highest prices in the country, often exceeding $60 a month. But Atlantic Canadians often find unlimited use, fiber optic-based plans are often part of the deal. In the west, fervent competition between dominant cable operator Shaw and telephone company Telus has given residents in British Columbia and Alberta more generous usage allowances, faster speeds, and lower pricing.

The Canadian Broadcasting Corporation reports the most significant gouging takes place in the Canada’s two largest provinces: Ontario and Québec, where Bell (BCE) competes with three dominant cable operators: Rogers and Cogeco (Ontario) and Vidéotron and Cogeco (Québec). Critics contend that “competition” has been more in name-only over the last several years, as prices have risen and usage allowances have not kept up.

“These disparities are influenced by the competition,” Catherine Middleton, a professor at the University of Ryerson’s Ted Rogers School of Management told CBC News. “For example, Bell competes against Rogers in Ontario, but against Vidéotron in Quebec, with different plans for different markets.”

(Coincidentally, in 2007 the University of Ryerson accepted a gift of $15 million from the late Ted Rogers, founder of Rogers Communications, which won him naming rights for the Ted Rogers School of Management.)

Rogers and Cogeco charge Ontario residents more money for less access. Vidéotron treats their customers in Québec somewhat better, so Bell has plans to match.

“Ontario gets the worst when it comes to competitiveness,” Michael Geist, a law professor at the University of Ottawa and Canada Research Chair in Internet and e-commerce law told CBC News. “It tends to be the least competitive when it comes to getting bang for your buck.”

Prices start to moderate in the prairie regions. SaskTel and MTS Allstream are the largest providers in Saskatchewan and Manitoba. Both offer customers unlimited service plans, something of a shock to those further east. But unless you live in a larger city where the two companies are upgrading to faster fiber-based networks, DSL at speeds averaging 5Mbps is the most widely available service.

Nearing the Canadian Rockies, usage-restricted plans are a reality once again. In Alberta and British Columbia, Telus and Shaw competition means more generous usage allowances, and Telus does not currently enforce their usage limits. Shaw raised its own usage limits significantly beyond what a customer would find from Rogers back east. Prices are often lower as well.

The CBC notes unlimited broadband from cable operators has become a rarity. Eastlink, which provides service in Atlantic Canada, has phased out unlimited access on plans above 20Mbps. Rogers has a temporary “unlimited use” offer for customers paying for its premium-priced 150Mbps plan, and only until March 31.

The most significant recent change for eastern Canada was Bell’s decision to offer an unlimited-use “add-on” for $10 extra a month for Bell customers in Québec and Ontario who choose at least three Bell services (broadband, television, phone, satellite, or wireless service). Rogers has matched that offer for its own triple-play customers. Those who only want broadband service from either provider will pay three times more for unlimited access — an extra $30 a month.

The mainstream Canadian press often ignores third party alternative providers that offer an escape from usage-capped Internet access.

But there are other alternatives, often ignored by the mainstream media.

A growing number of third-party independent providers buy wholesale access from large Canadian networks and sell their own Internet plans, often with no usage limits. TekSavvy, Distributel, Acanac, among many others, provide Canadians with DSL and cable broadband at prices typically lower than one would find dealing with Bell, Rogers, Shaw, or other providers directly. Some discount plans still include usage caps, but those limits are often far more generous than what the phone or cable company provides, and unlimited access is also available in most cases.

One website allows consumers to comparison-shop 350 different providers across Canada. Despite the growing number of options, the majority of Canadians still buy Internet access from their phone or cable company and live under a regime of usage caps and high prices, if only because they do not realize there are alternatives.

Usage caps have cost Canadian broadband consumers both time watching usage meters and money paying overlimit penalties. But the cost to innovation is now only being measured. While online video has become so popular in the United States it now constitutes the largest percentage of traffic on broadband networks during prime time, usage limits have kept the online video revolution from fully taking hold in Canada. That is a useful competition-busting fringe benefit for large telecom companies in Canada, which own cable networks, cable systems, broadcast networks, and even satellite providers.

Netflix’s chief content officer called Canadian broadband pricing “almost a human rights violation.” The online video provider was forced to introduce tools to let Canadians degrade the quality of their online video experience to avoid blowing past monthly usage allowances.

The mouthpiece of Big Telecom.

The Information Technology and Innovation Foundation has looked and looked, and just does not see America’s broadband problems aptly described by industry critics including Susan Crawford, David Cay Johnston and Tim Wu. As far as the ITIF is concerned Americans have little to complain about with respect to broadband availability, speeds or pricing.

That finding is part of a new research paper, “The Whole Picture: Where America’s Broadband Networks Really Stand,” authored by Richard Bennett, Luke Stewart, and Robert Atkinson.

The report sniffs at critics complaining about uncompetitive, high-priced service, dismissing them as misguided “holders of a particular ideology or economic doctrine, which is Neo-Keynesian, populist economic thinking in this instance.”

Bennett, Stewart, and Atkinson, who have all penned pro-industry reports for years, prove another economic doctrine: the free market for industry bought-and-paid-for-“research” is alive and well.

The summary finding of the report:

Taking the whole picture into account, this report finds that the United States has made rapid progress in broadband deployment, performance, and price, as well as adoption when measured as computer-owning households who subscribe to broadband. Considering the high cost of operating and upgrading broadband networks in a largely suburban nation, the prices Americans pay for broadband services are reasonable and the performance of our networks is better than in all but a handful of nations that have densely populated urban areas and have used government subsidies to leap-frog several generations of technology ahead of where the market would go on its own in response to changing consumer demands.

Although the report is extensively footnoted to bestow credibility, once a reader begins to check out those footnotes, trouble looms:

1. Some footnotes lead the reader to business or Wall Street media reports, which can favor an industry point of view or extensively quote from executives and insiders;
2. Several certain critical assertions include footnotes that link only to the home page of the source, making it impossible to find the exact source material used;
3. Many footnotes come from earlier articles, position papers, and statements from the authors or others affiliated with the ITIF — hardly independent sources of information.

Bought and paid for research.

ITIF’s report is riddled with customized benchmarks the ITIF appears to have invented itself. Ars Technica caught one in the executive summary and questioned the relevance of measuring broadband adoption among “computer-owning households” at a time when an increasing number of Americans use broadband for video streaming on televisions, use smartphones, or rely on tablets for access.

We also noted the authors making several assertions without facts in evidence to support them. Among them is the unsupported notion that “the high cost of operating and upgrading broadband networks in a largely suburban nation” makes today’s broadband pricing understandable and fair.

In fact, the most significant costs borne by cable operators came during the early years of their initial construction — one, even two decades before broadband over cable was envisioned. When cable Internet service was introduced, it was praised for its relatively inexpensive start-up costs and its ability to deliver ancillary, unregulated revenue for cable operators. Those cable networks over which broadband is delivered have been paid off for years.

The authors avoid the actual financial reports of the largest phone and cable companies in their study, because as public shareholder-owned companies, they are obligated to disclose reality. Those financial reports show a consistent drop in capital expenses and infrastructure investment and a major increase in revenue and profits from broadband service. Cable industry executives have repeatedly asserted the reason they raise broadband prices is not because the costs to run their networks are very high, but rather because “they can.”

From there, Bennett, Stewart, and Atkinson play endless rounds of Statistics Scrabble.

Claim: America enjoys robust competition for broadband.

Phone Company

Fact: The cable industry has declared itself the victor for delivering high-speed broadband in the United States. DSL has long since given up competing on speed, and even AT&T’s hybrid fiber-copper U-verse platform is rapidly losing ground in the broadband speed race. Wireless and satellite plans are almost all slower and routinely cap usage, often to levels of just a few gigabytes per month.

The cable industry also won the right to keep its network to itself, not allowing third-party wholesalers on-demand access to resell broadband over those networks. Phone companies have been able to charge discriminatory wholesale pricing to access their networks, and only for certain types of connections.

Abroad, most networks are open to third parties on non-discriminatory terms. In places like the United Kingdom, customers have their choice of ISPs available over a traditional BT DSL line. In Asia, public subsidies and incentives helped push providers to construct fiber to the premises networks, but those networks are open access, helping spur competition and lower prices.

Domestically Time Warner Cable permits competitors like Earthlink on its network on a voluntary basis, but unsurprisingly Earthlink charges the same or higher prices for service that Time Warner charges once a six month promotion ends. That represents “competition” in name-only.

Claim: Most speed-test-based research rankings on broadband speeds around the world are wrong.

Cable Company

Fact: ITIF at one point makes the unfounded assertion that since many people only test their broadband speed when something seems wrong with their connection, most speed-test-sourced “actual speed” data is not very useful because there often is something wrong with a broadband connection when testing it, resulting in flawed data. This ‘picked out of the sky’ claim is one of the primary arguments ITIF makes about why broadband rankings (produced by those other than themselves) are irrelevant.

ITIF’s press release about its report makes the completely unsubstantiated assertion that “the average network rate of all broadband connections in the United States was 29.6Mbps in the third quarter of 2012; in the same period, we ranked seventh in the world and sixth in the OECD in the percentage of users with performance faster than 10Mbps.”

DSL customers may find a statistic rating America’s broadband speeds as better than one might expect to be less than useful when it only counts broadband connections faster than the average DSL user can buy themselves.

This cherry-picking may help the ITIF’s arguments look more credible, but it does nothing to improve your broadband speeds at home or at work.

Claim: Broadband provider profits average less than 2% annually.

Fact: Another clever statistic (poorly sourced as ‘from the home page of Bloomberg.com’ — check back with us when you find the original article yourself) that fails to tell the whole story.

We aren’t THAT profitable, really.

First, ITIF defines net profits specifically as “simply the difference between revenue and expenses.” But that definition may not account for a range of corporate accounting activities which can diminish net profits but still let the company walk away with high fives from Wall Street. Share buybacks or dividend payouts, acquisitions, costs and expenses from other divisions not related to broadband, etc., can all affect the bottom line and mask the enormous earnings and profit potential of American broadband.

Take Time Warner Cable, which has a 95 percent gross margin selling broadband. Broadband service is just one of three primary services sold by the cable operator. Broadband does not suffer from landline losses in the phone business or from escalating TV programming expenses. Broadband is clearly the most profitable service in Time Warner’s product arsenal because it occupies only a small part of the company’s wired infrastructure. Supplying broadband service also costs Time Warner relatively little money as a percentage of their earnings and has helped offset revenue loss from the television side of the business. Bandwidth costs have also declined year after year. Infrastructure upgrades are more than covered by pricing that has begun to creep up over the last few years. In effect, broadband earnings are covering for other products that are not selling as well.

ITIF’s claim that supplying broadband is costly and that current rates are justified just isn’t true.

Claim: Europe is behind the United States in broadband.

Fact: The one legacy network that both Europeans and Americans share in common is the copper wire basic telephone service. From there, telecommunications service diverged.

North Americans embraced cable television while much of western Europe (especially the UK) preferred direct-to-home satellite service. That difference set the stage for some significant broadband disparity. Cable broadband technology has proved more robust and reliable than DSL service. Phone companies that rely on basic DSL are falling behind in broadband speeds. Investment to bring fiber online is the only way these phone companies can stay competitive with cable broadband. Some countries with particularly decrepit telephone networks, especially those left over from the Communist era in eastern Europe, are being scrapped in favor of fiber to the home service. Many western European countries are incrementally introducing fiber to the cabinet or neighborhood service, which leaves the last mile copper phone wire connection in place.

This is why speeds in many eastern European countries and the Baltic states with full fiber networks are so high. Advanced forms of DSL are more common further west, using technologies like VDSL2+. But DOCSIS 3 cable upgrades (and those to follow) continue to leapfrog over telephone company DSL advancements. Speed disparity is often the result of fewer cable systems in Europe as well as the amount of fiber optics replacing basic telephone service infrastructure.

Despite that, many Europeans pay less, particularly for faster service, than we do. Plus, fiber optic upgrades are within the foreseeable future in many European countries. In the United States, fiber deployments are now crawling or stalled in areas served by AT&T and Verizon. Neither company shows much interest in spending money on further wired upgrades and no competitive pressure is forcing them to, especially as both phone companies increasingly turn attention to their wireless divisions for most of their earnings.

The kind of research produced by the ITIF is tainted as long as they don’t reveal who is paying for these research reports. As Stop the Cap! readers have learned well, following corporate money usually helps expose the real agenda of these so-called “think tanks,” which are created to distort reality and quietly echo the agenda of their paymasters with a veneer of independence and credibility.