CityFibre loses court battle over ‘fake fibre’

CityFibre’s judicial review of the Advertising Standards Authority’s (ASA’s) 2017 decision on how internet service providers (ISPs) can use the word “fibre” in broadband advertising has been dismissed by the courts, in a blow to the full-fibre network builder.

The judgment, handed down by Mr Justice Murray at the High Court of Justice, found in the ASA’s favour on all grounds and dismissed CityFibre’s argument that allowing ISPs to describe a fibre-to-the-cabinet (FTTC) broadband service consisting of fibre backhaul and copper wiring as fibre was misleading and confusing when compared to increasingly prevalent fibre-to-the-premises (FTTP, or full-fibre) where fibre runs all the way into the customers’ property.

FTTP is incontrovertibly much faster than FTTC, and is considered the gold standard of broadband connectivity in the UK, with national network builder Openreach now firmly backing the technology after years of indecision.

CityFibre’s case came about following a decision made by the ASA in November 2017, which it took after a review of the use of the word fibre in broadband advertising. The ASA said it believed the term fibre was not prioritised by consumers when buying broadband, and that people tended to believe it was just a buzzword used to describe any kind of fast broadband service.

The ASA produced a research study to confirm this view, which was challenged by CityFibre in a study of its own conducted in 2018. CityFibre CEO Greg Mesch branded FTTC “fake fibre” and appealed to the likes of BT, Sky and TalkTalk, which still sell vast quantities of FTTC contracts to consumers, to change their ways.

CityFibre, which is currently building a consumer FTTP network with broadband services provided by Vodafone, won permission to challenge the ASA’s decision via a judicial review in June 2018.

In a statement, CityFibre's Mesch said he was “disappointed” by the judgment handed down, and restated the core argument that it is not right for consumers to be misled into thinking copper-reliant connections constitute 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. We are currently considering appealing the judgement and would like to thank the thousands of people that joined our campaign and signed our petition for change,” said Mesch.

“Full-fibre infrastructure is being deployed at pace in the UK and will soon be within reach of millions of consumers. We welcome government’s recognition of the need for clarity in broadband advertising to ensure consumers can make an informed choice.

“We are also encouraged by DCMS’s focus on this critical issue in its proposed Statement of Strategic Priorities. The technical benefits of full fibre infrastructure are unquestioned and we will continue to work closely with DCMS, Ofcom and the ASA to ensure consumers are able to distinguish full-fibre networks from copper-based alternatives,” he said.

“We welcome the court’s decision, which finds in the ASA’s favour on all grounds and dismisses CityFibre’s arguments,” said an ASA spokesperson.

“The review of the evidence we undertook to arrive at our position on the use of the term ‘fibre’ to describe part-fibre services in ads was based on robust methodology and open-minded analysis of all of the arguments.

“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.”