California AT&T customer Matt Spaccarelli can’t understand why his wireless phone company is selling him an “unlimited data plan” for his iPhone that is subject to being throttled to dial-up speeds after as little as 13 minutes of Netflix viewing per day over the course of a month.

Spaccarelli argued his case with several AT&T representatives, who recommended he “upgrade” his account to a tiered plan that would guarantee him at least 3GB of an unthrottled experience for the same price he was paying for an ostensibly “unlimited use” plan.

“That to me says ‘if you pay more, then you get what we promised you in the first place,’ and that is not cool,” Spaccarelli told the Associated Press.

[flv width=”480″ height=”290″]http://www.phillipdampier.com/video/AP ATT Backpedals on Throttling 3-1-12.mp4[/flv]

The Associated Press talks with Matt Spaccarelli, who successfully sued AT&T over his throttled Internet connection.  (3 minutes)

The Simi Valley man did what few AT&T customers have dared — he took the company to small claims court, and won a judgment of $850.

A Ventura County judge took a dim view of AT&T’s claim that customers can enjoy an “unlimited usage” experience, as long as they understand AT&T never promised what speeds customers would receive along the way.

AT&T lost, according to the judge, because of the legal concept of “justifiable reliance,” which means because AT&T advertises itself as the “fastest wireless network,” a normal consumer with an average understanding of mobile broadband should not expect to have their speeds on an advertised “unlimited use” plan reduced to something akin to an AOL dial-up account.

After AT&T’s representative read the company’s carefully-constructed legalese in its contract and terms of usage in court, even the judge was confused, relates Spaccarelli.

“What does this mean?” Spaccarelli remembers the judge asking.

AT&T's Control Measure for "Heavy Users"

Spaccarelli said he tried it AT&T’s way — switching to a 3GB tiered usage plan to stop the throttling on his “unlimited” plan.

“For one month they switched me to a tiered plan and that month I used the smallest amount of data ever and got the highest bill,” he told KTTV in Los Angeles. “AT&T has not and cannot show that my usage has ever caused damage to their network or caused other people to slow down.”

The AT&T Usage Limbo Dance — Lowering the Bar on Customers With Continuously-Decreasing Usage Allowances

Spaccarelli explained in court his throttling experiences with AT&T have gotten worse over the last several months as part of what he calls AT&T’s “Upside Down Pyramid Scheme.”

“The problem with using the top 5% of data users [as a basis for throttling] is because [customers] are not able to use the services that we would normally use, data usage becomes less and less,” he says. That in turn makes AT&T’s “top 5% usage throttle” engage at perpetually lower and lower usage rates.  Heavy users that used to make the top 5% of data users last fall were consuming a dozen or more gigabytes per month.  Today, AT&T’s “top 5%” consume only 2GB of data.

“When this all started I was getting slowed down after around 10GB of usage, then 8GB and then 5GB,” he says. “[Now] AT&T will admit that 2GB is the average when most people get slowed down.”

“They don’t want my usage to affect other users, which I totally understand,” Spaccarelli says. “But it seems like as long as I pay more they don’t care that my usage might affect other people.”

Spaccarelli pays AT&T around $140 a month for a plan he says AT&T sold him as “unlimited everything.”

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/KTTV Los Angeles ATT Lawsuit Interview 3-1-12.flv[/flv]

KTTV talked with Spaccarelli about why he decided to sue AT&T, what the experience was like, and why consumers should be concerned about usage-limiting Internet plans.  (5 minutes)

A judge was persuaded by Spaccarelli’s argument and awarded him $850 for the value of his effectively-lost “unlimited use” plan.  But Spaccarelli isn’t waiting by his mailbox — AT&T has indicated it intends to appeal the judge’s ruling and has not sent a check.  (Perhaps he could follow in the footsteps of George Kontos, an AT&T customer in Winston-Salem, N.C. who walked into a local AT&T retail store with a Forsyth County Sheriff’s deputy, to seize the store’s merchandise to satisfy Kontos’ $2,000 judgment.)

Lowering the bar on "unlimited use" customers.

That a customer successfully sued AT&T in small claims court is a potential nightmare for the company, which has worked for years to eliminate consumer protection clauses from its contracts.  AT&T already prohibits customers from pursuing class action lawsuits and typically mandates corporate-friendly arbitration in customer-company disputes.  But AT&T has not yet prohibited customers from suing them in small claims court, where damages are limited.

“I’m not a lawyer and I’ve never done something like this before,” Spaccarelli writes on his website. “I did my own research and took my own time to put together this case against AT&T.”

A case that he has begun documenting in an effort to help consumers pursue their own actions against AT&T.  He says filing a small claims case is simple.

“You give the clerk $85 and the court will give you a court date, that’s it,” Spaccarelli told AP.

Now AT&T has backpedaled on its original plan to throttle unlimited customers who use more than 2GB per month.  Instead, they have announced the throttle will kick in after 3GB of usage, the same amount offered by AT&T’s most popular $30 tiered plan.  That gives customers two choices: a speed throttle or overlimit fees for customers who exceed AT&T’s allowance.

AT&T has at least 17 million customers grandfathered on its now-discontinued “unlimited use” plan.  Any of them face the potential of throttling by AT&T, which could lead others to small claims court, with Spaccarelli’s help.  He told the New York Times he’s willing to travel anywhere in the country to appear as an “expert witness” in future court cases, as long as someone covers his travel expenses.

Spaccarelli says he’s not really interested in the $850, he just wants his unlimited use plan to really mean “unlimited use” again.

“I’d give back the money if they stopped slowing my speed down,” he says.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/Spaccarelli Calls ATT 3-12.flv[/flv]

Spaccarelli calls AT&T customer service looking for his $850.  (2 minutes)

AT&T to Rural America

While Verizon leverages its 4G LTE wireless network as a rural broadband solution, AT&T shows no signs of sharing Big Red’s enthusiasm (and investment).

In fact, while AT&T celebrates the end of its U-verse fiber-to-the-neighborhood expansion and admits it has no answer to America’s rural broadband problem, the always excellent DSL Prime by Dave Burstein reports AT&T is mulling a sale of its rural DSL operations to a third party provider, essentially letting the new owner(s) deal with the rural broadband problem:

[AT&T] is “doing a rapid tech evaluation” of whether they can upgrade their DSL + wireless to “a competitive broadband product.” But Randall “doesn’t see a solution.” If that’s confirmed, “we’re looking for others who might want the properties.” […] It’s unclear if any of the “rural carriers” – Century, Frontier, Windstream – have the financial ability to make an attractive offer. If operators can’t raise the money, [AT&T] would need to make a financial transaction.

Verizon has sold off its entire “wireline” (landline infrastructure and business) operation in smaller, rural states — often properties it acquired years earlier from GTE — to focus on more lucrative urban markets.  AT&T could either spinoff its broadband operation to a third party to run or follow Verizon and sell off entire rural service areas not already upgraded for AT&T’s more modern U-verse.

Likely buyers include FairPoint Communications, Frontier Communications, CenturyLink, and Windstream — all independent traditional landline operators trying to focus on less-competitive rural markets pitching DSL broadband service.

AT&T has shown little interest investing in rural service areas located primarily in the southern and central United States.  As Karl Bode writes on Broadband Reports, AT&T is on record stating that they can’t find an “economically viable” way to upgrade these users, despite a looming increase in faster and less expensive last mile DSL technologies.

As AT&T has sought to redefine itself as a wireless company, the buildout of its wireless network could bring AT&T to also eventually pitch 4G wireless Internet service to its former DSL customers.  But like Verizon, those plans would likely include severely usage-capped service, while leaving its traditional DSL product starved for investment.

Verizon Wireless today introduced HomeFusion Broadband: a new service that provides high-speed in-home Internet access using the company’s 4G LTE wireless network.

Designed primarily to reach households with limited broadband options, HomeFusion will deliver download speeds of 5-12Mbps and upload speeds of 2-5Mbps. While installation will come free of charge, a one-time equipment charge of $199.99 applies.  Pricing is nearly identical to Verizon’s mobile broadband service:

• Up to 10GB — $60/month
• Up to 20GB — $90/ month
• Up to 30GB — $120/month
• Overlimit fee: $10/GB

Verizon's 4G LTE antenna must be mounted on an outside wall of your home to assure good reception. (Picture: The Verge)

Verizon says HomeFusion is their broadband answer for rural America.

“HomeFusion Broadband is just one of the new products and services that is made possible with our 4G LTE network,” said Tami Erwin, vice president and chief marketing officer, Verizon Wireless. “Customers want to connect more and more devices in their homes to the Internet, and HomeFusion Broadband gives them a simple, fast and effective way to bring the most advanced wireless connection from Verizon into their homes.”

A third party company, Asurion, will handle installation of Verizon’s cylinder-shaped antenna, installed on the side of a customer’s home.  The antenna is designed to pick up the best possible signal from Verizon’s growing 4G network.  The antenna transmits the signal to a company supplied router capable of connecting up to four wired and 20 wireless devices.

HomeFusion Broadband will be available beginning later this month in Birmingham, Ala., Dallas and Nashville, Tenn., with additional markets to follow.

Verizon’s product is unlikely to attract substantial interest in more populated areas where a 10GB monthly usage cap would prove unacceptable in many homes where multimedia content is a growing part of the Internet experience.  But is could compete with satellite broadband, which also has low monthly usage caps.  Verizon may also win back customers in service areas it sold to independent providers like FairPoint and Frontier Communications, which have since saddled most of their rural customers with 1-3Mbps DSL service.  But Verizon’s pricing puts rural America at a usage disadvantage because of the low monthly limits and higher price tag.

The development of HomeFusion could reduce Verizon’s investment and interest in further expanding its traditional rural broadband product — DSL.  But Verizon will have to expand its still-urban focused LTE 4G network further into the countryside for HomeFusion to serve its intended market.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/BBC News Google Fiber Can ultra-fast internet change a city 2-27-12.flv[/flv]

The BBC explores how Google’s gigabit broadband project will change Kansas City economically, socially, and culturally.  (3 minutes)

Verizon Communications has agreed to full restitution, as part of a class action settlement, for unauthorized third party charges on their customers’ phone bills.

Known in the industry as “cramming,” extra unauthorized fees pop up on phone bills for voicemail, dating lines, ringtones, or 800 numbers many customers have no idea they even had.  Almost all of the charges come from independent companies unaffiliated with Verizon.  But critics charge phone companies have been ignoring abusive cramming practices, in part because they share a percentage of money billed and collected from customers.

Deceptive cramming charges are often hard to spot on phone bills replete with cleverly-named-to-be-obscure surcharges, taxes and fees.  Many crammers deliberately keep descriptions about the services they are billing as vague as possible, sometimes appearing as “special services charge,” “voicemail access,” or even “monthly charge.”  Many ratepayers assume it is all just a part of the cost of having phone service.

A class action lawsuit against Verizon accused the company of doing little to stop unauthorized third party fees, and many customers afflicted by them report getting them off their bills is not as easy at it should be.

“When I had a mysterious $14.95 monthly fee for ‘voicemail,’ a service I knew I didn’t have, Verizon required me to fight with some Bermuda-based company to get the charges reversed, and they just kept repeating I must have authorized the service because it was on my bill,” reports Stop the Cap! reader Kevin Sessly. “They wear you down until you just pay the bill.”

Sessly eventually won refunds after contacting his state’s public utility regulator.

As part of the settlement, Verizon customers will be entitled to full refunds of all unauthorized third party charges from April 27, 2005 through Feb. 28, 2012.

“Some settlement class members may have a claim for hundreds or thousands of dollars in refunds under the settlement,” class counsel Bryan Kolton said.

Verizon has also agreed to adopt an “opt in” system where customers must first allow third party charges on their phone bills before a company can bill your account.  Currently, customers are subject to third party billing unless they specifically block it with their telephone company.

“It is difficult to overstate the credit that is due Verizon for its commitment to fixing the third-party billing system as it relates to Verizon customers,” said John Jacobs, one of the lead attorneys for the class. “By this settlement, Verizon has committed to extensive and unprecedented changes that we believe will go a long way toward eliminating cramming and will change the industry.”

Crammers have used a variety of tricks to bill phone customers for services they never ordered.  Completing sweepstakes or contest forms with a phone number is one common method, asking for a cell phone number as part of a “free ringtone offer” is another.  Many services also trick customers into signing up with free offers or discounts on other products or services.  Many customers forget to cancel before the trial ends, resulting in recurring charges.

Customers will be able to recover the full amount of the unauthorized charges, if they have copies of their past phone bills, or obtain a quick $40 flat-rate refund by submitting claims at www.verizonthirdpartybillingsettlement.com or calling toll-free 1-877-772-6219.  Both services should be up and running by March 9.

Non-Verizon customers can still take steps to protect themselves from unauthorized charges by calling their provider and requesting a block on all third-party charges.  This service is provided at no charge.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/ABC News Phone Cramming How to Get Money From Verizon Settlement 3-5-12.mp4[/flv]

ABC News reports on the Verizon settlement and steps consumers can take to identify cramming and obtain refunds for unauthorized charges.  (2 minutes)