Washington State Attorney General Bob Ferguson filed a $100 million lawsuit today against Comcast Corporation in King County Superior Court, alleging the company’s own documents show a pattern of illegally deceiving customers to fatten their bottom line by tens of millions of dollars.

The lawsuit claims Comcast violated Washington’s Consumer Protection Act (CPA) at least 1.8 million times as the cable operator misrepresented what is covered under its “Service Protection Plan,” improperly charged customers service call fees when they should have been free, and violated customer privacy by engaging in improper credit screening.

At least 500,000 Washington residents are victims of Comcast’s deceptive acts, the lawsuit alleges.

“This case is a classic example of a big corporation deceiving its customers for financial gain,” Ferguson said. “I won’t allow Comcast to continue to put profits above customers — and the law.”

Ferguson

Comcast routinely claims its $4.99/mo “comprehensive” service plan covered the cost of all service calls, including those related to inside wiring, customer-owned equipment connected to Comcast services and on-site education about products. That is, unless a customer wanted the wiring hidden by installing it inside a wall, which the majority of customers want. A so-called “wall fish” is not covered by Comcast’s plan, even though 75% of the time, Comcast representatives told state investigators the plan did cover all inside wiring.

It turns out many other things are not covered by Comcast’s “comprehensive” plan, including consumer-owned equipment troubleshooting and repairs involving cable jumpers, splitters, and other types of connectors. Some customers were billed for an entire service call if an excluded item happened to be checked by a Comcast technician. Ferguson claims Comcast does all it can to keep the fine print revealing the exclusions away from customers. Comcast does not offer customers enrolling in the plan a printed terms and conditions brochure or point to one on its website. Customers must dig around Comcast’s website to find the terms on their own. Just enrolling in the plan automatically gives Comcast a customer’s consent to whatever terms and conditions are in effect at the time.

Comcast also has a habit of charging Washington customers for trouble-related service calls that should have been free, the lawsuit alleges.

Comcast’s so-called “Customer Guarantee” promises that the company “won’t charge you for a service visit that results from a Comcast equipment or network problem.” Comcast discloses no limitations on this guarantee. But state investigators discovered Comcast routinely charged thousands of customers for service calls involving Comcast’s own equipment or service problems. Customers were also billed for service calls involving defective Comcast-supplied HDMI and component cables, cable cards, and installations of drop amplifiers, commonly installed to resolve a signal problem when Comcast’s network is not functioning properly.

Comcast allegedly facilitated the service call charges until approximately June 2015 by encouraging technicians to use a service call “fix code” that permitted Comcast to “add service charges to a normally not charged fix code.” That allowed technicians to properly track Comcast’s own network troubles yet still charge customers to roll a truck to their home, even when the service call should have been free.

Finally, as many as 6,000 Washington residents saw their credit scores drop after Comcast engaged in improper credit screening, causing a “hard pull” on credit reports which can negatively impact credit scores, at least temporarily.

Comcast requires an equipment deposit, but it is usually waived for customers with an adequate credit score. But the AG’s office uncovered at least 6,000 occasions where customers paid an equipment deposit, despite their high credit score. Ferguson’s office claims this indicates either:

• customers “opted out” of a credit check and paid the deposit instead to avoid a credit score hit appearing on their credit report, only to have Comcast run one anyway; or
• customers were forced to pay the deposit despite their high credit score, contrary to Comcast’s policy.

The case is the first in the nation of this size and scope, and comes after Ferguson spent more than a year trying to work with Comcast. Ferguson said he was not satisfied with Comcast’s response and filed the lawsuit.

For violating Washington’s Consumer Protection Act, the Attorney General’s Office is seeking:

• More than $73 million in restitution to pay back Service Protection Plan subscriber payments;
• Full restitution for all service calls that applied an improper resolution code, estimated to be at least $1 million;
• Removing improper credit checks from the credit reports of more than 6,000 customers;
• Up to $2,000 per violation of the Consumer Protection Act; and
• Broad injunctive relief, including requiring Comcast to clearly disclose the limitations of its Service Protection Plan in advertising and through its representatives, correct improper service codes that should not be chargeable and implement a compliance procedure for improper customer credit checks.

Apple TV

Apple’s ability to successfully force its way into the pay television business with a cord-cutter’s streaming TV solution has been left languishing since 2009, thanks to some of America’s largest cable and entertainment companies who think Apple is arrogant and out of touch.

The Wall Street Journal today published a story showing how Apple’s plans to challenge the cable TV industry much the same way it revolutionized digital music has rubbed the big and powerful the wrong way. Apple’s desire to launch a cheaper streaming video service with a slimmed down TV lineup and robust on-demand options has flopped, because executives have no interest in bending to Apple’s way of thinking.

In 2009, Apple decided it wanted in on the streaming pay-TV business. At the same time Time Warner Cable began experimenting with data caps, Apple was approaching local stations and broadcast networks and offering them premium payments — higher than what the cable industry itself paid — for Apple’s choice of stations and cable networks. The deal meant Apple would alone be free to pick only the channels it wanted to carry, a major departure from the industry practice of contract renewals that bundled popular networks with spinoff and lesser-known channels cable operators didn’t want to carry. Apple’s hard-charging negotiator, Eddy Cue, seemed to believe that if Apple was at the negotiating table, that alone would be enough to get a deal done. It wasn’t.

Two years later, Time Warner Cable approached Apple seeking to launch a joint TV venture that could compete nationwide with satellite and phone company competitors. The talks were at the highest levels at both companies, involving Time Warner Cable’s then-CEO Glenn Britt, Cue, and Apple CEO Tim Cook. Cook also approached Brian Roberts, CEO of Comcast, promising him the service would only be sold through cable operators — good news for Comcast but bad news for open competition.

This time, Apple sought money from the cable companies, not the other way around. Cable operators were told they would need to pay $10 a month per subscriber to Apple, with no guarantee that fee would not increase in the future. Just as concerning was Apple’s insistence that subscriber authentication would require customers to use their Apple IDs, a departure from the cable industry’s push to adopt TV Everywhere, where customers could unlock streaming video from any cable network simply by logging in with the username and password they set up with their pay TV provider. Apple was also characteristically secretive about their user interface and left cable industry executives flummoxed when they asked Apple to sketch out what the service would look like on a napkin. An Apple official would only respond that their interface would be great and “better than anything you’ve ever had.” The fact Apple refused to answer the question did not go unnoticed.

Nor did Cue’s unconventional way of negotiating with some of the most powerful entertainment executives in the country. When Jeff Bewkes, CEO of Time Warner (Entertainment) agreed to meet with Cue about Apple licensing Time Warner’s critical networks — which include HBO, CNN, and TNT — Apple’s negotiator showed up 10 minutes late. While Time Warner’s negotiators were smartly dressed in business attire, Cue turned up wearing jeans, a Hawaiian shirt, and sneakers with no socks. It went downhill from there, because Apple insisted on valuable on-demand rights to full seasons of hit shows and permission to let viewers store their favorite recordings on a massive cloud-based DVR that included features like automatic recordings of hit shows and advanced ad-skipping technology.

Crickets.

More than a few programmers used to having their way with cable operators were shocked by Apple’s ‘arrogance’ and unconventional way of doing business. The newspaper reports one former Time Warner Cable executive watched with amusement as stone-faced programmers were unimpressed with Apple’s demands.

Jon Lovitz offers a visual hint what Mr. Cue must have looked like meeting with high-powered execs at Time Warner (Entertainment)

“[They] kept looking at the Apple guys like: ‘Do you have any idea how this industry works?'” said the former executive.

Apple responded ‘doing new things requires changes that often are unsettling.’

A year later the negotiations were on life support, as Apple struggled with the arrival of 2015 with no slimmed down streaming TV package to offer Apple TV owners.

Apple’s demands flew in the face of decades of cable industry business practices, which give channel owners virtual guarantees of rate hikes with each contract renewal, the right to force their spinoff networks on the cable lineup in return for a comfortable renewal process, and the cable industry’s right to an assurance everyone was getting the same kind of deal (except volume discounts). Any deviation from this would result in panic on Wall Street, as investors’ dependence on perpetually improving quarterly financial results based on revenue boosts from new or higher fees would come crashing down if a company like Apple got a better deal.

One industry insider suggested once a company like Apple got a deal on sweetheart terms, every other distributor would demand the same deal (and many have contract provisions that require it). Apple may have assumed that because it managed to get the recording industry to agree to its iTunes digital music distribution deal 15 years earlier, so the cable industry would go. Except the road to cut-throat deals for entertainment programming is littered with dead-end business plans that had to be quickly modified when the discounts ended.

Netflix and Starz both learned expensive lessons when early discounts on licensing deals ended after Hollywood saw how much money those companies made from streaming. When licensing contracts expired, entertainment companies sought massive increases in licensing fees to “fairly share” the proceeds. Netflix ended up walking away from several studios, seriously impacting their online streaming catalog. Eventually, Netflix decided if they cannot beat the studios, they should join them, creating original programming to attract and keep subscribers.

Cue in real life

After almost a decade spent trying to get into the online cable business, Apple now seems more likely to follow Netflix, Amazon, and Hulu, and devote time and money on developing its own original programming. Instead of trying to license and bundle network programming, Apple TV today supports independent apps created by various networks. Viewers still get to watch their favorite shows, Apple does not have to pay for streaming rights, and there is a joint effort to create and support a single login so viewers can get access to content without constantly re-entering usernames and passwords.

Apple’s original shows include “Planet of the Apps,” a reality series, a miniseries being developed by Dr. Dre, and a spinoff of CBS’ “Carpool Karaoke.” The shows serve a dual purpose — entertaining viewers and helping push sales in Apple’s App Store and streaming music service.

Also under consideration are big budget, critically acclaimed original shows and series that could generate positive buzz for Apple TV, like “House of Cards” has done for Netflix.

Developing programming keeps negotiators like Apple’s Mr. Cue from having to challenge a very profitable pay television industry on their terms and spares Apple from creating a cable package of linear TV channels subscribers increasingly don’t care about. Viewers want on-demand access to the shows they want to see and don’t care that much about who supplies them and how.

So in the end, the intransigence of Big Cable and Hollywood studios that are now worried about cord-cutting may have done Apple an enormous favor, sparing them from being entangled in a business that buys and sells channels to fill a bloated and expensive cable television lineup more and more consumers are now deciding they can do without.

Updated: Link to WSJ story corrected.

It is hard to imagine there are still cable systems serving customers with nothing more than a slim lineup of standard definition cable television channels in 2016, but not if you live in three Berkshire towns over the New York-Massachusetts border where Charter Communications will finally introduce HD television and internet service starting next week.

Lanesborough, West Stockbridge, and Hinsdale all suffer from the pervasive lack of broadband common across western Massachusetts. But these communities, along with Charter’s cable system in nearby Chatham, N.Y., are benefiting from regulator-mandated upgrades as a condition of approving Charter’s acquisition of Time Warner Cable. Charter Communications has almost no presence in New York, except for 14,000 customers in Plattsburgh and the seriously antiquated system in Chatham that isn’t too far from the dilapidated systems serving the Berkshires on the Massachusetts side of the border. Like in Chatham, customers in the Berkshires pay for service similar to what cable customers received in the 1980s – no video on demand, no internet access, and a capacity-strained system that lacks enough bandwidth to offer HD channels.

The upgrades will cost about $6,000 per customer — numbering 2,500 in Chatham and another 800 in the three towns in Massachusetts. Charter is paying the bill. Charter’s acquisition of Time Warner Cable will make things easier for the cable operator, because it will extend fiber connections between the Charter systems and existing Time Warner Cable infrastructure nearby.

In Massachusetts, Charter’s upgrades require customers to install new set-top boxes in time for the switchover on Aug. 2. A week later, on Aug. 9, internet access will be available at the two speeds Charter traditionally offers — 60 and 100Mbps.

Most customers care a lot less about improved cable television and are more concerned about getting broadband. Western Massachusetts’ broadband problems have affected property values and kept businesses from relocating or expanding in the area. Few areas in the northeast have languished with inadequate internet access more than Massachusetts communities west of Springfield.

The large consortium of 44 communities working under WiredWest have spent years working towards community-owned fiber to the home service in the western half of the state, but the project ran into political interference at the state government level. Lanesborough had been part of the WiredWest collaborative effort, reports iBerkshires. With Charter’s upgrade, the community may decide to drop out of the project, even though it would likely deliver superior broadband service over what Charter will offer.

On a morning conference call with Wall Street analysts, Comcast continues to misrepresent its vision of broadband usage caps and usage-based billing, claiming customer preferences echoed through Comcast’s performance in the marketplace will tell the company what is “best for consumers,” and guide Comcast how to realize the most value for shareholders.

Wall Street is very interested in usage caps and usage-based billing because cable operators can protect video revenue threatened by cord-cutting and boost revenue earned from customers who exceed their allowance.

Vijay Jayant, and analyst at Evercore ISI, quickly zeroed in on the potential loss of anticipated revenue from Comcast’s recent decision to boost its data cap from 300GB to 1TB, something Jiyant characterized as a “hurdle” for future usage-related charges.

“Well we have one terabyte. We moved it up from 300 gigabyte to one terabyte in 14% of our markets where we have usage-based pricing,” responded Neil Smit, Comcast Cable’s president and CEO. “We think we’re going to continue to adjust and look at it as the market evolves and as usage evolves. We have different pricing models, some based on speed, some based on usage, and we’re going to be flexible and kind of let the market tell us which way is best for consumers and how we add the most value. We continue to add speeds. We’ve upped speeds 17 times in 15 years. We’ve built out the fastest Wi-Fi. So we’re going to continue to invest in the network to stay ahead of things.”

Smit’s response was incomplete, however.

Smit

Comcast’s usage and speed-based pricing models are hardly “flexible” and do not co-exist in the same markets. Customers are compelled to obey Comcast’s usage cap, face overlimit fees up to $200 a month, or pay an additional $50 a month to buy back their old unlimited use service. In Comcast markets without usage caps, the cable company only sells speed-based internet tiers with no enforced caps.

Comcast has consciously avoided allowing customers to choose between speed-based or usage-based tiers, because years of experience among other cable operators quickly proved customers intensely dislike usage caps of any kind. In fact, the largest percentage of complaints filed with the FCC about Comcast are about its compulsory usage cap trial and the fees associated with it.

One reason for that hostility may be that Comcast’s broadband prices do not drop as a result of the introduction of usage caps in a service area. The customer effectively receives a lower value broadband product as a result of its arbitrary usage limit, and the potential exposure to overlimit fees or a very expensive “insurance” plan to avoid the cap altogether. Earlier trials offered some customers a small discount if they kept usage under 5GB a month, a difficult prospect for most and in any case not much of a revenue threat for Comcast.

If Comcast was seriously interested in what its customers think about its usage cap trial, it need only review the FCC’s complaint database. According to a Freedom of Information Law request from The Wall Street Journal, nearly 8,000 complaints received by the FCC in the second half of 2015 were about data caps, and most of those were directed at Comcast.

Comcast’s claim it will let the marketplace decide only delivers a distorted view about usage caps, because many Comcast customers have only one other competitive choice, and there is a significant chance that provider caps customer’s broadband usage as well. AT&T, for example, caps its customers at a level even stingier than Comcast. Those caps have not been enforced with overlimit fees on customer bills (except for AT&T’s DSL customers), although AT&T suggests it is getting serious about collecting future overlimit fees. If Comcast gains new customers leaving AT&T to avoid smaller caps, Comcast executives seem to believe they can claim consumers have ’embraced’ Comcast’s usage billing. But we know that is about as credible as an election in North Korea.

Time Warner Cable has been one of the few honest players about usage billing, giving customers the option of keeping unlimited or switching to a capped plan for a discount. More than 99% of customers have chosen to stay with unlimited and only a few thousand have chosen to limit their usage for a small discount. An honest market test from Comcast would extend a similar option to customers. Keep unlimited or voluntarily limit usage for a small discount. Given this kind of test, we expect the overwhelming majority of customers would keep unlimited at all costs. Doing so would hurt shareholder value, however.

The only value Comcast is concerned with is how much more money they can charge customers for broadband service. In America’s broadband duopoly, where speed-based broadband pricing is already outrageously high, usage caps and usage billing are nothing more than a greedy cash grab. When money is at stake, reputation comes in a distant second at Comcast, as the company continues to prove its poor reputation with American consumers is well-deserved.

Verizon Communications is taking the New York Public Service Commission to court over the regulator’s ruling that $8 million in property tax refunds rebated to the phone company through a tax certiorari proceeding should be spent on improving Verizon’s service quality in the state.

Verizon wants to pocket the refunds of $1 million from New York City, $2 million from Oyster Bay, and $5 million from Hempstead for the benefit of the company and its investors, but regulators are insisting Verizon use the money to boost “capital expenditures to address purported service quality and network reliability concerns about its New York network.”

The PSC has been monitoring Verizon’s landline performance in the state since at least 2010 under its Verizon Service Quality Improvement Plan proceeding. Local officials and customers have filed complaints with the PSC about extremely long repair times, service outages, unreliable service, and sub-par line quality for several years, especially in downstate areas around New York City that have not yet been upgraded to Verizon’s FiOS fiber to the home service.

Regulators want those issues resolved, particularly after Verizon made it clear it has suspended its FiOS expansion outside of New York City. Customers with long-standing service issues are often offered a controversial wireless landline replacement called Voice Link, that has earned mixed reviews, instead of a permanent repair of their existing service.

Verizon calls the regulator’s demands arbitrary and unwarranted confiscation of its property.

“The commission did something it had never done before — it allowed Verizon to retain the refunds as it had in the past but this time also imposed a spending mandate which required Verizon to use the funds for a particular purpose,” the company claimed.

Verizon used the company’s long and successful track record convincing New York regulators that Verizon’s wireline networks have faced hard times as it bled landline customers, so it deserved regulatory and rate relief. Because the PSC recognized Verizon’s marketplace challenges when it “found that a lightened regulatory approach for traditional incumbent telephone carriers was warranted and necessary in order to level the playing field and enable them to remain viable providers in the future,” it is unwarranted to suddenly now demand the company spend its tax refund on network improvements, Verizon argued in its lawsuit.

In the past, Verizon added, the PSC allowed the phone company to keep its tax refund money for itself, even as it reduced spending on its infrastructure. The company claimed that to be “a proper regulatory response to the financial stress Verizon claims it is and will be under as it continues its transition to an increasingly competitive market.”

Earlier this year, the commission began to take a more formal look at the mounting service complaints it was receiving from Verizon customers and found troubling evidence Verizon might not be taking its copper landline network as seriously as it once did, especially in areas where FiOS upgrades have not been scheduled.

“…[T]here may be an unwillingness on the part of Verizon to compete to retain and adequately serve its regulated wireline customer base, and warrants further investigation into Verizon’s service quality processes and programs,” minutes from a March commission meeting state.