Allen

Citing tissue-thin evidence to prove the allegation Comcast and Time Warner Cable conspired to racially discriminate against minority-owned cable channels, a California judge dismissed a $20 billion lawsuit brought by Byron Allen’s Entertainment Studios Networks.

Allen accused Comcast and Time Warner Cable of creating minority interest cable networks that were actually owned by white ex-cable executives and hedge fund operators. Allen charged Comcast with seeking to pass the minority networks off as fulfillment of a diversity agreement Comcast had with federal officials as a condition of approving the 2010 merger of Comcast and NBCUniversal.

Allen also claimed Comcast “brazenly stated that it does not want to create any more black billionaires, such as Bob Johnson, the African-American founder of Black Entertainment Television.” Allen also referred to Sharpton as “Comcast’s least expensive negro.”

Allen widened the list of defendants to include several minority groups that have close ties to Comcast, including Al Sharpton and his National Action Network, the NAACP, and the Urban League. All of the named defendants are regular promoters of Comcast’s ventures and business interests in letters to regulators.

U.S. District Judge Terry Hatter Jr. found Allen’s case less than compelling and dismissed it outright, ruling it lacked enough verifiable facts to show his court has jurisdiction over the defendants and lacked sufficient evidence to prove liability.

The ruling did not seem to bother Allen much.

“Knowing that our lawsuit helped the FCC and the DOJ deny Comcast’s bid to buy Time Warner Cable is already a big win for us,” said Allen in a statement. “We are going to immediately appeal this decision to the 9th Circuit Court of Appeals who I believe will deliver us a favorable decision.”

Comcast and the other defendants called the lawsuit offensive, frivolous and outlandish.

A Frontier Communications service outage in New York left more than 6,000 customers without Internet service for more than 24 hours, leaving businesses with no way to process credit card payments and idling home-based telecommuters.

The outage began early Sunday morning leaving customers near Buffalo, Rochester, and the Southern Tier with no broadband and no answers.

Daniel Virella of Irondequoit called Frontier about the outage and a representative spent 30 minutes troubleshooting his connection with no results.

“I [then] asked him if there was an outage and he says, ‘you know what you’re right,” Virella wrote. “I’m like ‘are you serious?'”

As calls poured into Frontier’s customer service center, nobody had any answers about what the problem was or when it would be fixed.

“There was a recording that said if you’re calling from Rochester, you’ve got a problem,” Stephen Lambert told WROC-TV. “I wish someone would tell me what the problem is.”

By late Sunday, customers took to social media to blast Frontier for its lack of response.

“[Frontier’s] Internet goes down constantly,” complained Rochester resident Mary Ellen Frye. “They are aware of the problem but have no idea when it will be fixed. [Their] service level [is] erratic and totally unacceptable!”

Sharon McCauley Barger was without Frontier Internet for two days in Wheatfield (near Niagara Falls).

“We had to add 2GB to our mobile plan because of this,” she complained.

For businesses affected by the outage, the costs were even higher.

A gas station on Winton Road in Rochester lost business as customers discovered their credit cards wouldn’t work because Frontier’s Internet was offline.

Manager Angel Perez told WROC there is every chance the damage done will last longer than the outage itself.

“The impact is definitely lost sales, customers. You don’t know, they just might not come back,” Perez said.

Eva McDaniel can commiserate. Her service has been out for weeks. She let Frontier know she was fed up with them for the last time.

“Very poor customer service and no resolution on an Internet outage for over a month,” she told the company on their Facebook page. “Good riddance Frontier! I am done!”

Frontier eventually issued a statement that a circuit board was responsible for the failure but it would take several more hours before service was restored. Although Frontier claimed they first received reports of the outage “late Sunday,” Stop the Cap! confirmed customers started calling Frontier about service problems early Sunday morning. Multiple customers were able to confirm the outage began around 7:30am Sunday and ended just before 10:30am Monday morning — more than 24 hours later.

Internet Service Providers are deregulated and are not required to report service outages except when they impact telephone service. The New York Public Service Commission does collect statistics about service outages, mostly as a result of customer complaints.

Customers have some recourse when an outage occurs:

1. Request a service credit for the outage. Providers typically do not give credit unless it is requested. For each day you experience a service outage, Frontier should credit you for one day of service. Multiple outages or extended service problems often call for even larger service credits, especially in response to a complaint filed with a state regulator;
2. File a complaint with a state regulator and/or the FCC. Providers with a poor service record could attract the attention of state or federal officials and provide useful ammunition when a company seeks to expand by buying up other providers and service areas.
3. If service problems are frequent, change providers if you can.

[flv]http://www.phillipdampier.com/video/WROC Rochester Frontier outage frustrates customers 8-10-15.mp4[/flv]

Stop the Cap! talks with WROC-TV about the major Internet outage affecting Frontier Communications DSL service in western New York. (2:36)

North Carolina residents bypassed by Google Fiber and impatient waiting for AT&T U-verse with GigaPower may still have a chance to get gigabit fiber Internet.

Ting, a Toronto-based wireless provider, is exploring building fiber broadband networks in as many as a half-dozen cities in 2016, and some of them may be in North Carolina.

Elliot Noss, CEO of Ting’s parent company, told the Triangle Business Journal he is impressed with the enthusiasm for fiber optic broadband in the state. He recognized Greenlight, Wilson’s community-owned fiber network, as a fiber pioneer that helped fuel demand for better Internet in the state. He added North Carolina is one of the leaders in fiber to the home service in the country, and that makes it a very suitable place to bring even more fiber to the state.

The Triangle region of North Carolina is receiving network upgrades from Time Warner Cable and AT&T, and Google Fiber is coming to Charlotte and Raleigh-Durham, but there remains a number of Triangle communities including Clayton, Dunn, Henderson, Louisburg, Norlina, Oxford, Pittsboro, Rocky Mount, Roxboro, Sanford, Selma, Siler City, Smithfield, Tarboro and Wake Forest where fiber networks would be welcomed.

Ting workers installing fiber optics in Charlottesville, Va.

Noss believes fiber begets even more fiber, which may explain why some states are getting huge investments in competing fiber optic projects while others struggle with little or no fiber at all. As soon as a fiber provider enters a region, it creates a higher level of awareness that better Internet service exists when you look beyond “good enough” broadband from phone and cable companies. The resulting “broadband envy” fuels demand for network upgrades.

Noss believes smaller, outlying metros bypassed for fiber upgrades now want them more than ever because they are at a competitive disadvantage without better Internet access.

“North Carolina might be the first state in the union that has moved from where cities and towns are looking at fiber as a way to differentiate and to lead,” Noss told the newspaper. “(North Carolina) is seeing it almost defensively: We need it for our survival because we’re surrounded by it.”

So what makes a community ripe for fiber broadband? A community already sold on fiber and willing to make things happen quickly and smoothly.

“The first thing we look for when we’re engaging with a city or town is an understanding that this is something they deeply want to do,” Noss says. “We don’t take meetings with cities who want to hear about why they should have fiber or gigabit connectivity.”

That attitude is shared by Google, which has taken to issuing a checklist for city officials interested in attracting Google Fiber to their community. In short, it means developing a working relationship between zoning/permitting officials and Google’s engineers to cut the “red tape.”

In the past, politicians often treated cable franchise contracts as valuable enough to ask providers for concessions in return for an agreement. Many cities treated Verizon the same way when it sought franchise agreements to offer cable television over its FiOS fiber to the home network. Some city officials sought compensation for PEG services – Public Access, Educational, and Government channels. Others sought funding for technology and educational programs, community centers, or free service for public and government-owned buildings.

Google has turned that formula upside down. Today, communities offer concessions to Google competing to be the next fiber city. Other providers entering the fiber market with promises of better Internet are getting a similar reception from eager communities.

Charlottesville, Va. and Westminster, Md., neither a likely prospect for Google Fiber or Verizon FiOS did not need any convincing. Ting now provides gigabit fiber service in both communities for $89 a month or a cheaper 5/5Mbps budget option for $19 a month — both with a $399 installation fee. Customers cannot wait to sign up for service, often to say goodbye to companies like Comcast or Verizon’s DSL offering.

Ting is owned by Tucows, Inc., a provider of network access, domain names, and other Internet services.

[flv]http://www.phillipdampier.com/video/Ting What gigabit fiber means for Westminster 2015.mp4[/flv]

Ting produced this video about what gigabit fiber broadband will mean for a community like Westminster, Md. (2:07)

A plea from unhappy Frontier Communications’ broadband customers in West Virginia to have their complaints about Frontier DSL heard by a judge will get a hearing before Lincoln County Circuit Judge Jay Hoke on Aug. 19.

The class action lawsuit claims Frontier deceptively advertises fast Internet service that in reality is often unreliable and delivers only 5-10 percent of the speeds advertised. Many West Virginians have no other broadband options.

In response, lawyers for Frontier Communications have fought to get the case dismissed. They want customers to take their complaints through Frontier’s binding arbitration dispute resolution process.

In 2011, Frontier changed its terms and conditions, adding a lengthy arbitration provision that forbids customers from bringing class action cases and generally limits the damages customers can receive. Frontier argues customers automatically agreed to the arbitration process by continuing to use Frontier’s broadband service after the changes were announced.

The attorneys bringing the case think Frontier’s insistence that customers are automatically bound by the company’s contractual terms and conditions is ironic.

“No contract. No signatures. No worries,” claims one Frontier ad. “There’s no contract. Yep, that’s right, no contract,” advertises another. Since 2013, Frontier has gone out of its way advertising broadband without the gotchas and hidden fees their competitors charge. “Frontier is now in the unenviable position of trying to enforce hidden terms in the very contracts they repeatedly represented did not exist,” argues the plaintiffs in a court document.

Some Frontier customers never realized they may have given up their right to bring a civil case against Frontier. The company first notified customers about this change in their terms and conditions in 2011 through a small message on Frontier invoices. Customers effectively agreed to those changes through their continued use of Frontier’s service, Frontier claimed. But the plaintiffs signed documents attesting they had never seen or heard of Frontier’s enforced arbitration policy. The lawyers bringing the case are not surprised. A copy of the changed terms and conditions obtained by Stop the Cap! shows the binding arbitration clause buried on page five of a leaflet rendered in very small print in very large paragraphs unlikely to be read or understood by many customers.

The current arbitration policy is reproduced below. Have you read it?:

As explained more fully below and in the terms and conditions document, Frontier’s terms and conditions set forth important details about your relationship with Frontier including the requirement to resolve any dispute with Frontier by binding arbitration, on an individual basis, rather than through a lawsuit, jury trial or class action.  If you do not agree to Frontier’s terms and conditions, you may not use the Frontier service and must terminate service immediately.

DISPUTE RESOLUTION WITH FRONTIER BY BINDING ARBITRATION

PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.

Frontier encourages you to contact our Customer Service department if you have concerns or complaints about your service or Frontier. Generally, customer complaints can be satisfactorily resolved in this way. In the unlikely event that you are not able to resolve your concerns through our Customer Service department, we each agree to resolve all disputes through binding arbitration or a small claims court rather than lawsuits in courts of general jurisdiction, jury trials, or class actions. Arbitration is more informal than a lawsuit. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and individual relief affecting individual parties that a court can award, including an award of attorneys’ fees if the law allows. For any non-frivolous claim that does not exceed $75,000, Frontier will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys’ fees from Frontier for your own dispute to the same extent as you would be in court.

In addition, under certain circumstances (as explained below), Frontier will pay you more than the amount of the arbitrator’s award if the arbitrator awards you an amount that is greater than what Frontier has offered you to settle the dispute.

Arbitration Agreement:

(a) You and Frontier agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to, all claims arising out of or relating to any aspect of our relationship, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, that arose either before or during this or any prior Agreement, or that may arise after termination of this Agreement. It also includes claims that are currently the subject of purported class action litigation in which you are not a member of a certified class. References to “Frontier,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of Frontier Broadband under this or prior Agreements between us.

Notwithstanding the foregoing agreement, Frontier agrees that it will not use arbitration to initiate debt collection against you except in response to claims you have made in arbitration. In addition, by agreeing to resolve disputes through arbitration, you and Frontier agree to each unconditionally waive the right to a trial by jury or to participate in a class action, representative proceeding, or private attorney general action. Instead of arbitration, either party may bring an individual action in a small claims court for disputes or claims that are within the scope of the small claims court’s authority. In addition, you may bring any issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf.

This agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision, even after the agreement is terminated.

(b) A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Frontier should be addressed to: Frontier Communications, Legal Department – Arbitration, 3 High Ridge Park, Stamford, CT 06905 (“Notice Address”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set for the specific relief sought (“Demand”). If Frontier and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Frontier may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Frontier or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Frontier is entitled.

(c) The arbitration will be governed by the Consumer Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Service, and will be administered by the AAA. Procedure, rule and fee information is available from the AAA online at http://www.adr.org, by calling the AAA at 1-800-778-7879, or by calling Frontier at 1-877-462-7320, option 3. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision, including the scope, interpretation, and enforceability of section (f) below, are for the court to decide. If your claim is for $25,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in person hearing as established by the AAA Rules. If your claim exceeds $25,000, the right to a hearing will be determined by the AAA Rules. Unless Frontier and you agree otherwise, any in person hearings will take place at a location that the AAA selects in the state of your primary residence unless you and Frontier agree otherwise. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

Frontier agrees to pay your AAA filing, administration, and arbitrator fees (“AAA fees”) for claims for damages of up to $75,000 and for claims for non-monetary relief up to the value of $75,000, as measured from either your or Frontier’s perspective (but excluding attorneys’ fees and expenses). After Frontier receives notice that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than $75,000. (The filing fee currently is $200 but is subject to change by the AAA. If you are unable to pay this fee, Frontier will pay it directly upon receiving a written request.) In addition, Frontier will not pay your share of the AAA fees if the arbitrator finds that either your claim or the relief sought is frivolous or brought for an improper purpose, as measured by the standards of Federal Rule of Civil Procedure 11(b). In such case, the payment of AAA fees will be governed by the AAA Rules, and you agree to reimburse Frontier for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. If you initiate an arbitration in which you seek relief valued at more than $75,000 (excluding attorneys’ fees and expenses), as measured from either your or Frontier’s perspective, the payment of AAA fees will be governed by the AAA Rules.

(d) If Frontier offers to settle your dispute prior to appointment of the arbitrator and you do not accept the offer, and the arbitrator awards you an amount of money that is more than Frontier’s last written settlement offer, then Frontier will pay you the amount of the award or $5,000 (“the alternative payment”), whichever is greater.
If Frontier does not offer to settle your dispute prior to appointment of the arbitrator, and the arbitrator awards you any relief on the merits, then Frontier agrees to pay you the amount of the award or the alternative payment, whichever is greater. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.

(e)  Although Frontier may have a right to an award of attorneys’ fees and expenses if it prevails, Frontier agrees that it will not seek such an award.

(f) You and Frontier agree to seek, and further agree that the arbitrator may award, only such relief—whether in the form of damages, an injunction, or other non-monetary relief—as is necessary to resolve any individual injury that either you or Frontier have suffered or may suffer. In particular, if either you or Frontier seek any non-monetary relief, including injunctive or declaratory relief, the arbitrator may award relief on an individual basis only, and may not award relief that affects individuals or entities other than you or Frontier. You and Frontier agree that we each may bring claims against the other only in an individual capacity and not as a plaintiff or class member in any purported class, representative, or private attorney general proceeding. Furthermore, unless both you and Frontier agree otherwise in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class, representative, or private attorney general proceeding. If a court decides that applicable law precludes enforcement of any of this paragraph (f)’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. Further, an arbitrator’s award and any judgment confirming it shall apply only to that specific case and cannot be used in any other case except to enforce the award itself.

(g) Notwithstanding any provision in these Terms to the contrary, you and Frontier agree that if Frontier makes any change to this arbitration provision during the period of time that you are receiving Frontier services, you may reject that change by providing Frontier with written notice within 30 days of the change to the Notice Address provided above and require Frontier to adhere to the language in this provision. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.

Corporations began to favor private arbitration over the civil courts several years ago, arguing arbitration would save money and lead to faster resolutions of customer complaints. Many customers and trial lawyers disagree, arguing arbitration favors the corporations that pay for arbitration programs, shields bad acts from public disclosure with confidentiality agreements, limits damage awards and prevents class action cases seeking relatively small amounts of damages for a large number of customers who would otherwise never bring a case to court. Early attempts by some companies to offer voluntary arbitration programs as an alternative to civil actions offered more limited benefits and many companies have since moved to mandatory, binding arbitration instead. Disputes subject to mandatory arbitration usually must be resolved through arbitration. The parties give up their right to sue in court, participate in a class action lawsuit, or appeal the arbitration decision.

The law firms handling the case against Frontier — Bailey Glasser in Charleston and Klein, Sheridan & Glazer in Huntington, are arguing Frontier customers cannot be bound by mandatory arbitration policies without evidence Frontier informed them of the program and can show evidence of their consent. In a lengthy argument to the judge, the attorneys argue Frontier can show neither. They point to Frontier’s website, which “buries” the terms and conditions as a tiny link at the bottom of their main web page. Customers must click that link, then find the link for the arbitration provision, then read and understand it. Notice about the arbitration policy originally came in occasional billing notices. Since the lawsuit was filed, Frontier has given more prominent mention of its terms and conditions, including its arbitration policy, on monthly billing statements.

Frontier’s defense is that the plaintiffs are misrepresenting the meaning of “no contract.” The company argues customers commonly understand that term to mean they will not be asked to sign a term contract for one, two, or three years, facing an early termination penalty if they seek to end the contract early. The fact Frontier advertises “no contract” does not mean there are no terms and conditions, the company’s attorneys argued.

A potentially weaker defense is Frontier’s claim that customers can be bound by a contract once they continue to use the service after a change in terms is published. Frontier admitted it could not prove the customers read and understood the change of terms notification or the new terms and conditions. It also never asked customers to directly consent, either in writing or by checking a box on a website, to the new terms and conditions. The plaintiffs also question the legality of Frontier reserving the right to unilaterally change any terms and conditions after a brief notification period and win consent of those changes if subscribers do not cancel service or, in some cases, opt out.

The attorneys call that “take it or leave it” Internet access from Frontier, often the only provider in large parts of rural West Virginia.

Find the terms and conditions link on the bottom of Frontier.com.

The days of the wireless phone subsidy are numbered with today’s announcement Verizon Wireless will end all smartphone subsidies and service contracts next week. It’s a path we’ve predicted at Stop the Cap! since at least 2013.

In an effort to “simplify” wireless pricing, Verizon Wireless is radically shaking up its wireless plans starting Aug. 13 — raising prices for its lightest users, ending the two-year phone contract, and requiring customers buy or finance their devices at the full retail price. Instead, customers will pay $650 up front for a phone like Apple’s iPhone 6, or finance it for around $27 a month for the next two years.

Phone plans are changing as well. Eliminated are “individual” and “family plans.” In their place, there is just one plan with four data options:

• Access Fee (includes unlimited voice/text): $20/mo per phone, $10/mo per tablet or portable hotspot, $5 for connected devices (eg. watches)
• Shareable Data Option: $30 (Small – 1GB), $45 (Medium – 3GB), $60 (Large – 6GB), or $80 (X-Large – 12GB)  —  Overlimit Fee is $15/GB

Average and heavier users will save a few dollars with Verizon’s new plans. The “Medium” plan is $5 less than Verizon used to charge and the “Large” plan is $10 less. You get 2GB of extra data for your $80 comparing Verizon’s older plan and its newer one. The benefits seem less compelling when you realize just a few years ago Verizon charged $30 for unlimited use data plans.

Budget customers will find Verizon’s new plans the least attractive. Customers with 6GB or less data plans used to pay a $15 access fee. Now they will pay $5 more per phone. Those who want Verizon’s cheapest 500MB plan for $20 are out of luck. That plan is being dropped, according to Verizon, because customers were confused over the difference between MB and GB. Customers now on that low-end plan will probably be able to keep it, but may eventually have to choose a “Small” data plan for $10 more per month. Budget customers used to pay around $35 a month. Now they will pay at least $50.

Heavy data users may be concerned Verizon’s top data plan tops out at 12GB. The company plans to privately offer bigger data buckets to customers, but only if they visit a Verizon Wireless store to discuss their needs.

Current customers still on contract will not see any changes immediately. Verizon will continue to charge the $40 a month access fee for contract customers until the contract expires, after which the fee will drop to $20. Customers on More Everything plans can stick with their existing plans for now, as well as add lines. There are no plans to force customers to change service plans at this point.

Expect AT&T to take a similar path towards the elimination of subsidized devices. Because customers will likely finance their $600+ smartphones, it isn’t likely consumers will face dramatically changed pricing as a result of Verizon’s plan changes. But device manufacturers can no longer get away with promoting their phones at a $200 price point. In fact, the sticker shock of the retail price of smartphones may eventually force manufacturers to produce more affordable phones for the marketplace.