Verizon Communications -- while insisting that ads targeted at Cablevision Systems citing FCC broadband testing data were "entirely accurate and truthful" -- said in a court filing Monday it will revise the ads after the MSO filed a false-advertising suit against the telco.
However, Verizon said, it plans to continue to point out in its advertising that Cablevision still doesn't deliver on its advertised download speeds during peak hours.
Cablevision filed suit Dec. 6 in the U.S. District Court for the Eastern District of New York seeking to force Verizon to stop running ads citing a Federal Communications Commission study that claimed the cable operator delivered "59% or less" of advertised speeds during peak periods.
The FCC study in question was released in August but based on data from March 2011, and Cablevision said more recent data from the agency showed it had greatly improved its relative performance. In a blog post last week, Joel Gurin, chief of the FCC's Consumer and Governmental Affairs Bureau said for the month of October Cablevision delivered more than 90% of advertised speeds during peak periods for customers on its 15 Mbps tier.
"[A]lthough these new FCC results still show that Cablevision doesn't provide customers the Internet speeds they are paying for to this day, there is at least some information suggesting that Cablevision's services aren't as bad as they used to be," Verizon said in a filing opposing Cablevision's motion for a temporary restraining order to stop the ad campaign.
The FCC's August 2011 report found that Verizon's FiOS Internet delivered 114% of advertised rates during peak periods.
In the filing, Verizon said it plans to revise its current ads. The revised ads will: remove the reference the August 2011 FCC report as "new," "recent," or "just released"; not state that Cablevision's current poor performance is proven by the August FCC report or that Cablevision is currently delivering just 59% or less of its advertised speeds; and not state that to currently "get anything close to speeds Cablevision promises you would have to use your iO internet at 4:30 a.m."
Verizon said its commitment to implement these planned changes "obviates the need for a preliminary injunction" because Cablevision cannot show any likelihood of irreparable injury. The telco claimed it informed the MSO of the revisions to the ads "as recently as the day before Cablevision ran into court."
"To be clear, Verizon can and will continue to otherwise set the record straight about Cablevision's services and false advertising claims, and make claims such as ‘Cablevision does not deliver on their advertised download speeds during peak hours,'" the telco said in the filing. "Even the FCC ‘blog' post Cablevision now touts shows that such claims are entirely true and not misleading."
"This case is about deceptive marketing -- Cablevision's," Verizon said in a statement. "Cablevision's Internet service has been and continues to fall short of what consumers are being told. The best that Cablevision can claim is that it is not misrepresenting its broadband speeds quite as much today as in the past."
In a statement about Verizon's filing, Cablevision said: "The bottom line is Verizon is again changing their ads because they were false and misleading, just like they had to last month when they weren't telling the truth about picture quality." In a separate dispute, the National Advertising Division of the Council of Better Business Bureaus issued a recommendation that Verizon discontinue its claim that "FiOS TV rates #1 in HD picture quality," after a Comcast complaint.
Verizon's ad campaign citing the FCC "Measuring Broadband America" study has run on TV, radio, print, direct mail and on the telco's website. One of the TV ads showed Cablevision customers' eyes spinning in a circle while watching a buffering icon on their computer screens as the narrator said, "Are you suffering from cable... vision? A new study from the FCC shows that Cablevision delivers 59% or less of its advertised speeds during peak hours."
Cablevision's lawsuit also cited as "literally false" a FiOS ad that shows a cable customer staring forlornly at a frozen screen while trying to watch Web video and another a whose video game displays the message "Connection Interrupted."
"Contrary to Verizon's claims, Cablevision subscribers are perfectly capable of watching streaming videos and playing games online without their screens freezing up," the MSO said.
Verizon responded that Cablevision's allegation that the "screen freeze" ad conveys a literally false message is "contrived. Verizon is aware (and Cablevision surely is too) that numerous Cablevision consumers complain about Internet speeds and ‘stall[ed]' Internet streaming while using Cablevision."