Original article ISPreview UK:
The Advertising Standards Authority (ASA) has today ordered mobile operator EE (BT) to ensure that the “unlimited data” (mobile broadband) claims on their website, which apply to various 4G and 5G mobile plans, are directly qualified with the limits expressed in their associated Fair Usage Policy (FUP).
The ASA has long had specific guidelines on the use of “unlimited” claims in broadband and mobile advertising, which tend to apply if any restrictions are then applied to people who are perceived to have used too much (e.g. the customer uses a lot of data and then suffers a more than moderate loss of internet speed). Such restrictions are often set out inside Fair Usage Policies (FUP).
On this front, various mobile operators tend to provide a guideline for how much maximum data usage is allowable, per month, inside the FUPs on related mobile plans. In the case of EE, their FUP has long expressed how they “will consider usage above 600GB/month to be non-personal use and have the right to apply traffic management controls to deprioritise your mobile traffic during busy periods or to move you to a business plan.”
However, the FUPs around all this might talk tough, but they’re usually fairly soft (flexible) and rarely ever enforced. This is perhaps because actually enforcing them might risk breaching the ASA’s rules, which could in turn prevent them from using “unlimited” terminology on their packages.
EE was recently tested on this point after a complaint prompted the ASA to investigate whether the claim that their data plans were “unlimited” was misleading because, a) an FUP of 600GB per month applied; and b) the ad did not make the FUP restriction sufficiently clear. Interestingly, this also resulted in EE revealing more detail about their approach to enforcement, which mostly only impacts during periods of network congestion (4% of cell sites).
EE’s Position on their 600GB FUP
[EE] confirmed that legitimate users who exceeded the FUP of 600 GB per month would not incur an additional charge, nor would they have their service suspended. They believed the limitations imposed on such users were moderate; on exceeding the limit, their traffic was deprioritised at busy cell sites from the time they exceeded the data threshold until the end of their monthly bill cycle. EE referred to the most recent Ofcom report, which stated that the average fixed line broadband data consumption for a UK household was around 535 GB per month, and average mobile data use was 9.9 GB. EE provided data to show the proportion and number per month of customers impacted by the FUP. They said they considered any use that exceeded 600GB to be non-personal use.
EE explained that the measure applied only to the 4% of cell sites across the UK that were congested, and that even those sites were not busy all the time. They provided data to show the reduction in average throughput speed that a consumer who was subject to the FUP was likely to experience when the cell sites in question were busy. It was a guideline only, because many other factors such as signal strength and levels of congestion would come into play and also because it would vary from site to site. EE pointed out that users were extremely unlikely to notice the speed reduction if they were listening to music, using maps or browsing websites, activities that required only a few hundred kilobits per second. They might, however, experience a slower speed if they downloaded a large file.
Sadly, and somewhat controversially, EE did provide the ASA with a specific figure to show the percentage reduction in average throughput speed a user subject to the FUP might experience at a congested site, but they requested for the ASA to “keep that figure confidential“.
ISPreview disagrees with the above position and thinks consumers have a right to know how their service may be impacted. But the ASA ultimately ruled that “the restrictions imposed were moderate only” and thus did not uphold the first complaint (a). The ASA did, however, uphold the second (b) complaint.
ASA Ruling Ref: A24-1253564 EE Ltd
The main body of the ad did not state that an FUP applied, and did not feature any signposting within the plan details to indicate that qualifications might apply. We considered that consumers would not necessarily be aware that a provider might apply traffic management to the advertised data plans. The Guidance stated that any provider-imposed limitations, as well as meeting the conditions referenced in Point (1) above, must be clearly explained in the marketing communication. Notwithstanding that users did not incur a charge or suspension, and the restrictions imposed were moderate only, we considered that the existence of the FUP constituted a limitation and should therefore be made clear in the ad.
The terms of the FUP were detailed at the bottom of the webpage within a section entitled “Frequently asked questions”. That section was not visible when viewing the SIM-only plans; it was necessary to navigate further down the webpage. Within that section, the text containing details of the FUP was visible only when the subheading “The legal bit” was expanded.
We considered that consumers would not necessarily scroll further down the page, nor click on “The legal bit” heading in the “Frequently asked questions” section. Consequently, we considered that the existence of the FUP could easily be overlooked because of its placement in an expandable section situated beneath the main body of the ad. Because the ad did not clearly present the qualification to the “unlimited” claim, we concluded that it was misleading.
The ASA has thus effectively banned the existing promotions in their current form (seen by the ASA on 7th April 2025 via EE’s own website) and told EE to ensure that their unlimited claims are “directly qualified with the terms of their Fair Usage Policy“, which is at least an improvement on the transparency front.
The ruling will also have an impact on other mobile operators that often work in the same way as EE, particularly if they aren’t making the terms of their FUP clear (many do not). But of course, it may take further complaints by consumers in order to highlight that to the ASA.
