The telecommunications industry’s willingness to police its own advertising under the aegis of BBB National Programs’ National Advertising Division (NAD) took a big hit with a lawsuit brought by AT&T Mobility LLC against BBB National Programs, Inc.
The conflict stemmed from a press release and television commercial by AT&T stating that T-Mobile had more NAD judgements against its advertising than other carriers.
On October 27, NAD ruled that the AT&T advertising and press release violated Section 2.1(I) of the NAD/National Advertising Review Board (NARB) procedures. That procedure was that NARB participants are “not to mischaracterize any decision, abstract, or press release issued or use and/or disseminate such decision, abstract or press release for advertising and/or promotional purposes.”
In other words, using the decisions as fodder for advertising or marketing is off limits.
AT&T’s lawsuit claims that BBB National Programs sent a cease-and-desist letter regarding the advertising. The letter, AT&T says, demanded that the commercials and press releases be immediately and permanently pulled. The suit further claims that the NAD issued a nationwide press release recounting what it said was the violation of its procedures. It also claims that the letter implied AT&T had mischaracterized NAD’s prior decisions about T-Mobile’s advertising.
AT&T maintains that the statements made in the advertising and press release are true and therefore protected by the First Amendment. “The notion that a court would prohibit a company from making true, non-misleading, and non-confidential statements to the public — on a matter of great concern to tens of millions of consumers — is anathema to the values embodied in the First Amendment. AT&T,” the filing read.
The three-count relief sought by AT&T include a judgement that AT&T’s advertisement and press release do not violate NAD procedures; that NAD’s procedures are unenforceable against AT&T; and that the First Amendment prohibits BBB National Programs from obtaining an injunction requiring AT&T to take down its press release or end its advertising campaign.
