NAD recently announced a decision in a challenge that Charter brought against T-Mobile for its home internet service. The decision covers a lot of ground and is worth reading if you work in the telecom space. But for the purposes of this post, we’re going to focus more narrowly on one specific issue that spans industries.
Charter challenged T-Mobile’s claim that it provided “average speeds over 100 Mbps for most customers.” Although T-Mobile voluntarily agreed to stop making that claim, NAD focused on another variation that still appeared on the company’s website. One question in an FAQ asked: “What speeds can I expect from T-Mobile Home Internet?” In response, T-Mobile stated that “many” users will experience average download speeds of over 100 Mbps.
How many consumers do you need to substantiate a “many” claim? NAD held that T-Mobile’s claim reasonably conveyed the message that “a substantial number of customers will achieve average speeds of over 100 Mbps.” This was particularly true when the speeds were presented in response to a question about the speeds that “I” – the individual consumer – could expect. In other words, consumers could read that to mean that they could expect those results.
OK, so if “many” requires a “substantial number” of consumers, what does a “substantial number” mean? Unfortunately, the answer isn’t clear. In this case, NAD referred to FCC guidance and its own previous decisions on internet speeds. Based on the “limited record” (into which we don’t have a good view), NAD determined that T-Mobile should stop the claim or modify it “to provide truthful and accurate information about the speed or range of speeds that its customers can consistently experience.”
It’s hard to walk away from this decision with a clear answer to the question of what it takes to substantiate a “many” claim, and the answer will probably depend a lot on the context. But even though we may not have a clear answer to the question, simply knowing that the question may be asked is helpful so that you can prepare. Consider how consumers may interpret your claims, what support you have, and whether it makes sense to qualify your claim.