AT&T Services, Inc. (“AT&T”) made “best possible” claims in its online blog when it announced its new Wi-Fi technologies. In a recent proceeding, the National Advertising Division (the “NAD”), considered Comcast Cable Communications, LLC's (“Comcast”) challenged that AT&T's claims were false because AT&T did not provide the “best possible Wi-Fi- experience” in the marketplace. AT&T argued that its claims conveyed a substantiated self-referential message and not a comparative one.
The issue before the NAD was to determine whether AT&T's “best possible” claims conveyed a self-referential or comparative message. In making this determination, the NAD “looks not only at the literal language used in the claim, but also the context in which the claim appears.” This is because as the NAD, explained, “[w]ords that often convey comparative messages, such as ‘superior,' ‘ultimate,' or even ‘best possible' may convey other messages when used in certain contexts.”
January 2018 Post
In its January 2018 post, AT&T discusses two new features of its home internet service. The first feature was the Smart Wi-Fi-Extenders which the post explains help “reduce Wi-Fi dead zone.” The post claims AT&T's extenders are “the same technology for a fraction of the price” as compared to those of competitors. The second feature was AT&T's Smart Home Manager app, which the post discusses as providing “an even better internet experience.” In closing, the posts states, “We built our Wi-Fi technology to give you the best possible home internet experience, no matter how many new smart devices you get. Even better, it's affordable as it should be. So give it a try. We know you'll be amazed.” (Emphasis in original, internal quotations omitted).
Here, even though the post mentioned competitors, the NAD concluded that the phrase “best possible home internet experience” was directed at AT&T “service improvements” (emphasis in original) because it referenced AT&T's new Wi-Fi features (“only available to existing AT&T customers”) “relative to its prior service.” In this context, the NAD found that the claim was self-referential and the term “possible” means the best possible service AT&T can provide, and that a reasonable consumer would not take away the messaged that AT&T's service was the best in the marketplace.
July 2019 Post
Similarly, in its July 2019 post, AT&T discusses its new app to measure a Wi-Fi signal which AT&T used to assist with home Wi-Fi installation. The blog states that, “Launched in 2018, this latest tool is designed to ensure we take extra time on the front end to ensure the best possible Wi-Fi experience for our customers.” (Emphasis in original, internal quotations omitted.) Later the blog states that, “Using this baseline performance measurement information, we can provide the best possible in-home connections and customer experience by optimally locating the base Wi-Fi equipment and determining if a Wi-Fi extender is needed to eliminate Wi-Fi dead spots.” (Emphasis in original, internal quotations omitted.)
First, the NAD recognized that a claim could convey a comparative message without any mention of or reference to competitors. However, the NAD concluded that was not the case here. Like the January 2018 post, NAD found the term “best” as used in the context of this post referred to AT&T's internal installation improvements. Thus, the NAD found that the post conveyed a message that “AT&T has optimized its own process to provide the ‘best possible Wi-Fi experience' AT&T can provide to its own customers.” (Emphasis in the original.) Therefore, the NAD held that a reasonable consumer would not take away the message that AT&T's Wi-Fi experience is superior to its competitors.
Having determined that the challenged claims were self-referential, and that AT&T's substantiating evidence (showing that its new technology improved Wi-Fi coverage from its prior service) was reliable, the NAD concluded that AT&T had a reasonable basis for its challenged posts.
The case is Comcast Cable Communications, LLC. v. AT&T Services, Inc., Case No. 6423 (NAD November 10, 2020).
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