It’s only 100% reliable if you consider what claims can be reasonably implied by your marketing and take care to substantiate all reasonable interpretations or provide clear disclaimers detailing exactly what you are and are not promising. Easier said than done 100% of the time, but a recent NAD case reminds us of this basic tenant. DISH Network promised its satellite subscribers “99.9% signal reliability,” and Time Warner Cable recently questioned the reliability of this claim before the National Advertising Division. This is the most recent installment of cable wars, where DISH has previously battled fellow satellite provider DirecTV and the collective body of cable companies (see commercial here).
The central assertion of Time Warner’s complaint was that through these claims, DISH was implying to customers that they would receive a satellite signal 99.9% of the time and be able to view uninterrupted television program viewing 99.9% of the time. The 99.9% claim instead referred to the percentage of time a signal was available from the DISH satellite network. DISH stated that “the most common-sense understanding” of its claims was that they referred to DISH’s delivery capabilities -- the percentage of time it successfully emitted a signal from the satellite. DISH argued that they should not be held accountable for the weather or other outages beyond its control. Time Warner countered that such a statistic is meaningless to consumers, who simply care about watching television, and not about the cause of service disruptions. While not producing any consumer survey evidence, Time Warner argued that the most common-sense interpretation of DISH’s claims was that of signal availability, and that even if NAD were not to find that to be the case, established advertising practice dictates that DISH be able to substantiate all reasonable interpretations of its claims.
NAD recommended the removal of the challenged commercials from the airwaves and discontinuance of the 99.9% signal reliability claim. NAD agreed with Time Warner’s position that it is “well-established” that an advertiser must support every reasonable interpretation of its statements, even if it did not intend to promote certain interpretations. In this case, NAD agreed that one reasonable interpretation of DISH’s claim was a promise to deliver television 99.9% of the time, and that this was not substantiated.
To make sure your claim substantiation process is reliable, always stop to consider not just want you mean to say but carefully considering what consumers could understand you to promise. Remember that you are responsible for substantiating all reasonable interpretations of your claims.
- Amy Mudge and Michael Thorpe
