Broadband infrastructure slinger Cityfibre has lost a judicial review against the UK's Advertising Standards Authority after the regulator decided that the term "fibre broadband" could include connections that used a mix of fibre and copper cables.
Handing down his judgment today, Mr Justice Murray accepted that "full-fibre infrastructure is technically superior to part-fibre technology", but added that the ASA was right to say average consumers don't understand that. Thus, he ruled that it's OK to advertise connections relying on a mix of fibre and copper as "fibre broadband".
Cityfibre's lawyers had argued in court that there was "no rational basis" for the ASA to decide that the Average Joe wouldn't "be misled by advertisements for part-fibre broadband services that used the term 'fibre' without qualification".
In other words, Cityfibre argued that "fibre" connections which use a copper element for connecting consumers' homes to phone and internet networks – such as fibre-to-the-cabinet (FTTC) – ought not to be advertised as "fibre". It said that "reasonably well-informed" customers would assume that the word "fibre" in broadband ads would be assumed to mean fibre-to-the-premises (FTTP) tech.
The judge dismissed Cityfibre (and Hyperoptic)'s legal arguments in part because "it would suit their commercial interests if that were the case".
"Being reasonably well-informed," ruled Mr Justice Murray, "would apparently extend to understanding the distinction between part-fibre and full-fibre. Ms Callaghan [the ASA's lawyer] submitted, with some force, that a consumer with that level of knowledge about fibre is the least likely consumer to be misled by an unqualified reference to 'fibre' in an advertisement for broadband services."
The ASA relied on a research report it commissioned which, it argued in court, showed that consumers neither know nor care about the practical difference between part-fibre and full-fibre broadband. The judge agreed with the ASA's "expert judgement".
In a statement after the court made its ruling, the ASA said: "The process we followed to test if the average consumer is being misled by the use of the term 'fibre' to describe part-fibre services is the one we have used to protect UK consumers from misleading advertising for many years and we are pleased that the court has supported our approach after a hard fought legal process."
Greg Mesch, chief exec of Cityfibre, said in a canned comment: "We are disappointed by today's result because we continue to believe it is not right for consumers to be misled into thinking copper-reliant connections are 'fibre' broadband. The decision is particularly disappointing in light of the recent progress made in other countries which have restricted misleading advertising and established clear rules to distinguish full fibre from inferior copper-based services."
He added that Cityfibre is pondering an appeal. ®