Wireless Providers Dispute Legitimacy of ‘5G Evolution’ Network

The NAD case between AT&T and T-Mobile is just the latest development in the ongoing battle over 5G, the next generation of technology for wireless networks. All of the wireless providers are racing to upgrade their existing 4G networks and deploy the 5G technologies that will allow them to offer consumers faster and more reliable cellular networks. In late 2018, AT&T launched a nationwide advertising claim touting its “evolution” to 5G and its “5GE” network. As part of the campaign, it also allegedly pushed out a software update that changed the screens of mobile phones operating on AT&T’s “4G LTE Advanced” network to suggest that they were instead operating on a “5GE” network. The campaign quickly drew complaints from competitors who argued that there is no such thing as a “5GE” network and that AT&T was falsely suggesting it offered a true 5G network when in fact, it still relied primarily on 4G technologies. Sprint sued in federal court, seeking damages and an injunction to force AT&T to stop using “5GE” and “5G Evolution” in its marketing.

Ultimately, AT&T was able to reach a confidential settlement with Sprint that allowed AT&T to keep making its 5GE claims, but that didn’t stop T-Mobile from filing its complaint at the NAD. Like Sprint, T-Mobile argued that 5GE is false and misleading because it is in fact a suite of 4G technologies, not 5G. It also argued that because the 5GE claims convey a misleading message, they cannot be cured by disclosures. The NAD agreed, concluding that consumers would take away the message that AT&T’s “5G Evolution” network is (1) a network using 5G technology; or (2) represents a level of technology above 4G LTE service, when in reality the portion of AT&T’s network that it calls “5G Evolution” is a 4G network. The NAD was also not persuaded by AT&T’s argument that the word “Evolution” limits the message to AT&T’s evolving network and that it is deploying technologies that are the first step in a network transformation. According to the NAD, even if consumers understood the claim to mean only that AT&T was taking the first steps to 5G, they could reasonably take away the message that the network included some true 5G technology, but that message was not clearly supported in the record.