Will Comcast's Own Words Kill Its Lawsuit Against The FCC?

from the seems-pretty-damning dept

Last year, when the FCC was busy slapping Comcast's wrist for its traffic shaping policies, Comcast pointed out that it wasn't clear the FCC had the authority to do so. I tend to agree, actually. It's not at all clear that the FCC really has a mandate to tell private network operators what they can do with their network -- though, if that argument gets anywhere, it seems likely that a net neutrality-friendly Congress will quickly adjust and add it to the FCC's mandate. However, what was odd was that Comcast waited over a year before finally going to court over this issue. To be honest, I can't see what Comcast "wins" here, even if it wins the case. Congress would likely change the FCC's mandate. Separately, the FTC actually might have a stronger case here, as the real problem wasn't necessarily the traffic shaping, but Comcast's refusal to tell users about it, effectively providing false advertising to customers. That's an FTC issue.

But a much bigger problem for Comcast may be the fact that the company has had no problem actively promoting the FCC's supposed "mandate" over them when it suits them. In a separate lawsuit over the very same traffic shaping, Comcast tried to get out of the lawsuit by claiming it was an issue covered by the FCC:

This issue "i.e., the reasonableness of a broadband provider's network management practices" has, however, been firmly placed within the jurisdiction of the Federal Communications Commission ("FCC"), an administrative agency whose authority to regulate internet broadband access companies' services is well-established.

You have to imagine that this quote from Comcast will be prominently displayed by the FCC in response to Comcast's latest action.

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No Truth In Advertising When It Comes To ISP Traffic Shaping In Canada

from the that-seems-like-a-problem... dept

Via Rob Hyndman, we learn that in the Canadian gov't hearings investigating broadband provider traffic shaping, the providers revealed a lot about their traffic shaping practices that seem to contradict what those same providers claim on their websites well selling connectivity. Even if traffic shaping is to be considered legal, shouldn't broadband providers be required to be honest about what they're offering customers?

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Bell Canada Caught Lying In Advertisements... Continues Advertising Because It Doesn't Believe Ad Review Group

from the hear-no-evil... dept

Bell Canada is taking an interesting approach to being called out for lying in its ads to consumers concerning network performance: it's simply ignoring the whole thing. Advertising Standards Canada (ASC) found that Bell Canada was being quite misleading in claiming that Bell Canada was the "fastest network across North America." Now, there may be different ways to judge the speed of broadband offered on a network, and you would think that a company would respond with some data to support its side. Bell Canada, on the other hand, has said that it simply doesn't recognize ASC as a legitimate organization, and therefore, it can go about its business and advertising.

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Apple: It's Not Like Anyone Believes What We Advertise...

from the great-defenses dept

With Apple getting smacked down in the UK for misleading advertising, it appears the company is also facing a variety of similar challenges on the homefront. However, Apple tried a rather odd defense in a similar case. After first claiming that everything in its ads was accurate, the company also noted that any reasonable person would know not to believe what they saw in the ad anyway:

"Plaintiff's claims, and those of the purported class, are barred by the fact that the alleged deceptive statements were such that no reasonable person in Plaintiff's position could have reasonably relied on or misunderstood Apple's statements as claims of fact."

I could see that argument making sense for extreme and over-the-top demonstrations, but somehow it seems unlikely to fly in this particular case.

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Apple Smacked Down For Calling iPhone 3G "Really Fast"

from the define-really-and-define-fast dept

An ad for the iPhone 3G has been banned in the UK, after the country's advertising regulator decided that calling the device "really fast" four times in an ad was making deceptive claims about the speed with which it could access the internet. Earlier in the year, Apple had another iPhone ad banned after it said it could access "all parts of the internet." The regulator's action was prompted by 17 complaints from consumers about the ad, though at least one of those who complained after he'd received some poor customer service from Apple says revenge was a factor, and wonders if others had similar motivation. While plenty of complaints about Apple in online forums get ignored or shouted down by the legions of Mac fanboys, at least one guy found a way to make his stick.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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Ad Watchdog Says Ad Videos (Viral Or Not) Need To Obey Truth-In-Advertising Rules

from the what-about-satire? dept

A few months ago, you may recall that there was a semi-popular "viral"video going around, showing a group of friends sitting around a table with mobile phones. They put the phones in the middle of a table surrounding a corn kernel, and then dialed the phones and watched the corn pop. This got some buzz, and a quick debate over whether or not it was real. It seemed rather obviously fake (and, in many ways, similar to another fake video from earlier about cooking an egg with mobile phones), but some people were tricked. About a week after the video became popular, a bluetooth headset manufacturer admitted to creating the video to try to sell more handsfree kits.

Now, the National Advertising Division (NAD) of the Council of Better Business Bureaus has slapped the company on the wrist, noting that even though it was just an online viral video PR stunt, such videos should still live up to various "truth-in-advertising" standards. The LA Times story on this gets the details wrong, suggesting that it was only when this report came out that it was revealed that the video came from a bluetooth handset maker. That's not the case, as the company admitted it was a viral video about a week after it became famous.

Still, while I understand the reasoning for why truth-in-advertising should apply to viral videos, I'm not entirely convinced it makes sense in this case, where the video itself wasn't an actual advertisement -- and the only time people discovered that it was an advertisement was in conjunction with the revelation that it was a hoax. While perhaps some people were fooled initially into believing the video was real, it's difficult to see that video alone (which didn't mention hands free kits) driving people to using hands free kits. If anything, someone who believe the video would probably just use their phone less entirely, rather than switching to a hands-free kit. I definitely believe truth-in-advertising rules make sense, but it's not entirely clear how this was false advertising, rather than a hoax to generate discussion.

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Classmates.com Sued After Guy Realizes His Classmates Weren't Really Looking For Him

from the that-would-be-called-false-advertising dept

You may recall that Classmates.com was a website that first showed up in the 90s, and tried to do what Friendster and Facebook were later able to do. The problem was that Classmates.com's business model was to charge users for many of its features, including actually connecting with and contacting your classmates -- things that more recent social networks have always allowed for free. However, if you ever used Classmates.com for anything, you've probably been spammed with emails for years, each one claiming that your classmates are looking for you, or had recently viewed your profile. Nearly every email sent by the company (and they seem to come about once a week) has some enticing subject line that tries to suggest that something is happening with your profile and you're missing out if you don't upgrade to a premium account.

I've always ignored these emails, figuring that if any of my former high school classmates really wants to contact me, there are plenty of ways to do so that don't require me to pay up -- and naturally assumed that Classmates.com was exaggerating what was happening on the site. Some folks, however, believed the emails and upgraded. And, now, one of those who upgraded his account to see which classmates were trying to contact him, discovered (surprise, surprise) that Classmates.com was lying to him. His classmates weren't trying to contact him via the site, and so he's now suing the company for deceptive advertising, and demanding that the company refund subscription fees for everyone who was similarly duped.

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AT&T Moves Away From 'Up To' Marketing

from the finally! dept

For years, one of our pet peeves was the use of "up to" in telco marketing -- as in, "you get speeds up to 10 Mbps!" The "up to" lets providers basically make up whatever they want, as any speed below that number is still technically covered. However, in the last few years, some have started pushing back -- even questioning whether the use of "up to" marketing was false advertising. That's why it's nice to see that AT&T, for one, appears to be moving away from the practice. Broadband Reports notes that AT&T's new terms of service seems to show the range of speeds, rather than using "up to." That seems a lot more accurate and reasonable.

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Plenty Of Broadband Providers Pretending They're Offering Fiber To The Home

from the false-advertising dept

Earlier this year, we wrote about Verizon suing Time Warner Cable over a misleading advertisement, where Time Warner Cable claims that Verizon is "catching up" to Time Warner Cable in offering fiber optics. This is misleading, at best. Verizon is installing fiber to the home with its FiOS service, providing significantly faster connections. What Time Warner Cable is claiming is that it uses fiber in its network, not to the home. It's true that TWC and plenty of other broadband providers have used hybrid fiber solutions at the network level for many years, but that's totally different than connecting all the way to the home with a fiber optic connection.

Now it turns out that TWC is hardly the only broadband provider doing this. Apparently lots of broadband providers are now running ads against Verizon where they claim that they've offered fiber for longer than Verizon. That's totally misleading. Having fiber somewhere in the network is not at all an equal comparison to running fiber all the way to the home. As Broadband Reports asks, it's difficult to see how these claims from others isn't false advertising. They're clearly implying that their fiber is the same thing as FiOS when that's not true at all.

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Verizon Sues Time Warner Over Misleading Ad... Has To Drop Its Own Misleading Ad

from the funny-how-that-works dept

Remember earlier this year when Verizon Wireless sued competitor Alltel Wireless for false advertising? That came right after the company had been fined for false advertising itself -- and the suit basically ignored the fact that Alltel's ad was accurate until Verizon Wireless (just a couple months earlier) had changed its policy. Now it looks like Verizon Wireless' parent company is doing something similar. Broadband Reports points us to the news that Verizon is suing Time Warner Cable over an incredibly dopey ad that suggests in a very misleading manner that Verizon's FiOS fiber optic offering was just catching up to Time Warner's use of fiber (confusing fiber in the network with fiber to the home) and also suggesting that FiOS-TV requires a satellite dish (which is simply untrue -- though, the company does offer satellite TV service for areas that can't get FiOS yet). Still, it does seem a bit aggressive to sue over this.

And, this situation is made even more amusing by the fact that Verizon itself just got caught running misleading advertising. In this case, Verizon credits CNET "experts" with claiming that FiOS is "near-flawless," which is taken entirely out of context. CNET's article wasn't a review, but about the service, and the context was: "This fierce competition reinforces how important it is for Verizon to offer a near-flawless TV experience." In other words, CNET was saying that FiOS TV needs to be near-flawless to compete -- not that it is. To its credit, Verizon admits that it was wrong in using the phrase in advertising, and won't be using those ads after its initial run is done next month. It also claims that TWC's ads are much more egregious, though I'm not sure that's true. It's quite easy for anyone investigating their options to understand that TWC's claims are false. But it may be much more difficult to confirm whether or not CNET's review really called FiOS "near flawless." Either way, these are industries that have a long history of stretching the truth as far as it can go in advertising messages. It makes you wonder if anyone takes either of their commercials seriously.

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Does Truth In Advertising Still Apply To User Generated Ads?

from the legal-permutations dept

From a purely academic standpoint, it really is fun to see how modern technology is making life difficult for those who rely on old and potentially obsolete laws. However, the decisions made concerning these laws may have a pretty wide impact. We've discussed in the past the pitfalls of asking fans to create "user-generated" ads, but a new lawsuit raises a very interesting legal question. If you ask people to make their own ads for your product, how do truth in advertising laws apply? It's probably not much of an issue if fans are simply going out and creating an ad for fun on their own -- but what if you encourage it? Plenty of big name brands have been setting up contests, getting people to create commercials for them. Yet, when sub shop chain Quiznos did that, competitor Subway sued them, claiming that many of the ads made exaggerated in false claims about Subway's sandwiches. Quiznos, for its part, claims that thanks to the safe harbors of the Communications Decency Act, it's not liable for the content created by the participants in the contest. Subway, on the other hand, argues that by encouraging such actions with a contest, Quiznos has overstepped the boundary, and violated its trademarks. While you can see the reasoning behind Subway's argument, it's hard not to side with Quiznos on this one. No one is going to take most of the user-generated ads seriously -- knowing that they're designed to poke fun at Subway. Also, any attempt to expand "truth in advertising" type rules to fan-created ads is going to cause all sorts of unnecessary problems. Still, when politicians were first writing up trademark laws and truth-in-advertising laws, I'd imagine the possibility of user-generated advertisements never even crossed their minds.

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Does Advertising 'Always On' Service Mean It Can Never Go Down?

from the might-be-a-stretch dept

We have no problem crying foul when companies like Comcast and Verizon market their services as "unlimited" when the fine print has many limits. However, a new lawsuit against Comcast may take a similar concept a bit too far. A customer is suing the company, claiming breach of contract because his internet connection went down, despite Comcast's marketing materials claiming the service is "always on." While Comcast does have a reputation for tremendous downtime (something I experienced myself back when I was a Comcast customer), it seems like a bit of a stretch to claim that "always on" means that the service can never go down. The difference between something like this and the "unlimited" claim, is that while service providers are pitching unlimited service, they have internal policies by choice that limit usage. However, when it comes to the network going down, that's not a policy choice, but a technical issue.

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