“Bad Internet?”: Disparaging and Unsubstantiated Claims in Comparative Advertisements

On May 5, 2023, the National Advertising Division (NAD) of BBB National Programs handed down its Final Decision in T-Mobile USA, Inc. v. Comcast Cable Communications Management, LLC. The NAD found that Comcast made several express and implied claims that were disparaging and/or unsubstantiated regarding T-Mobile’s home internet service, T-HINT, by way of television and online advertising. The decision is a useful reminder that advertiser claims must be (1) truthful, (2) not misleading, and (3) supported by a reasonable (and often evidentiary) basis.

In the NAD case, T-Mobile asserted that Comcast made several express and implied claims that lacked evidentiary support and/or were “falsely disparaging.” Those challenged claims appeared in two television commercials (i.e., the “Nocturnal” Commercial and the “Birdwatchers” Commercial) and a webpage comparing Comcast’s Xfinity network to T-HINT. The claims at issue were:

Express Claims	Implied Claims
T-HINT is “bad internet”	Daily periods of congestion on T-Mobile’s network last until 2 a.m.
“Everyone is online during the day, so we lose speeds” using T-HINT	T-Mobile is not sufficiently fast or reliable to be used during daytime hours
T-HINT “lags and it throws the whole thing off.”	T-HINT customers need to switch to Xfinity in order to access reliably fast internet service during the day
“Well if you just switch, maybe you don’t have to be vampires.”	T-Hint lags too much to be useful for gaming
Getting Xfinity is the “adult” thing to do.	T-HINT customers need to switch to Xfinity in order to enjoy gaming
“INTERNET ISSUES?” “If ONLY THEY HAD XFINITY”	T-HINT is widely known to be a poor choice of home internet service
Xfinity home internet is “up to 30x faster than [T-]HINT”	Using T-HINT is a miserable consumer experience
Xfinity home internet is “up to 36x faster than T-Mobile’s 5G home internet.”	T-Mobile’s order of prioritization of mobile customers materially renders T-HINT unusable except in the dead of night
T-HINT “is 10-30x slower” than Xfinity home internet	As a general matter, slower speeds under certain conditions described in T-Mobile’s disclaimers and disclosures reflect typical consumer experience using T-HINT
Xfinity Mobile is now the fastest mobile service”	Xfinity Mobile delivers the fastest wireless speeds nationwide
“T-Mobile fixed home internet customers experience 2-4x the latency of wired internet customers.”	Xfinity Mobile’s “fastest” mobile speeds are available nationwide and across its entire mobile network
“Storms, mountains, cars—being inside—can slow your speed” “T-Mobile says: ‘Weather, the surrounding terrain, use inside a building or moving vehicle’ all affect speed and performance”	Xfinity Mobile’s “fastest” mobile speeds claim is based solely on cellular speed data, as opposed to mostly home WiFi speed data

The “Nocturnal” commercial was about a family who switched to T-HINT and only used the internet at night to avoid daytime internet lag.  The “Birdwatchers” commercial was about two avid gamers that switched to birdwatching because their internet lag was so bad. At the end of both commercials, viewers were encouraged to visit an Xfinity website, which compared Xfinity’s Gigabit Plus and T-Mobile’s T-HINT internet speeds. The website also had a banner advertisement that referenced T-HINT as being “Bad Internet.”

The NAD found that the evidence presented by Comcast, which included a report from T-Mobile and speed test data, did not substantiate the claims that T-HINT was unusable during the day (as suggested by the “Nocturnal” commercial) nor that it was unusable for online gaming (as suggested by the “Birdwatchers” commercial). The NAD did, however, suggest that Comcast may be able to accurately and truthfully claim that T-Hint latency issues affect certain types of gaming with particularly high internet connectivity requirements. The NAD also recommended that Comcast modify its claims comparing Xfinity and T-HINT internet speeds (i.e., “Xfinity is ‘up to 36x’ faster than T-HINT”), as well as its claim that “Xfinity Mobile is now the fastest mobile service,” to avoid misleading consumers. The “up to 36x faster” claim was misleading because the evidence provided by Comcast did not show that an “appreciable number of consumers” would even be able to attain that speed of internet. The “fastest mobile service” claim was found to be misleading by the NAD because Comcast failed to disclose that said claim was only true where a user is connected to both Xfinity WiFi and cellular service. However, the NAD did not recommend modification of Comcast’s claim that “Storms, mountains, cars—being inside—can slow your speed,” as T-Mobile itself had made statements saying that use of T-Hint can be affected by those conditions.

This NAD decision underscores the importance of claim substantiation and ensuring there is a reasonable basis for one’s advertising claims, particularly claims that require evidentiary support and which comment on competing goods or services.