Two class-action lawsuits were filed Tuesday on behalf of Time Warner Cable customers in 29 states to force the company to refund ill-gotten modem rental fees in violation of consumer fraud laws.

“It’s a massive hi-tech consumer fraud accomplished by low-tech methods,” said attorney Steven L. Wittels. “Send customers confusing notice of the fee in a junk mail postcard they’ll throw in the garbage, sock them with a $500 million dollar a year rate hike, then announce on your website that customer satisfaction is your #1 priority. That’s some way to deliver satisfaction.”

The context for the class action suit is that Time Warner Cable began imposing the fee Nov. 1 without giving customers appropriate notification. New York City residents had little more than two weeks notice in the form of a poorly printed postcard. Some residents in western New York and other cities have still not received notification from the cable company, either on bills or in the mail.

The two lawsuits were brought on behalf of Manhattan resident Kathleen McNally and Fort Lee, N.J. resident Natalie Lenett, but the suit asks the court to order refunds for all Time Warner Cable customers charged modem fees across their national service area.

The Consumerist thought the company’s failure to meet the timely notification requirement about the forthcoming modem rental fee might have the cable company dead to rights:

Pricing and Service Changes

Unless otherwise provided by applicable law, Time Warner Cable will notify you 30 days in advance of any price or service change. Notice of these changes may be provided on your monthly bill, as a bill insert, as a separate mailing, in the Legal Notice section of the newspaper, on the cable system channel(s) or through other written means.

But on closer examination, that provision only applies to pricing and service changes for Time Warner Cable’s television service, not broadband or home phone service.

In fact, Time Warner Cable’s new Subscriber Agreement has reserved the right to change just about anything it likes, just by updating the terms and conditions on its website:

We May Change our Customer Agreements

(a) We may change our Customer Agreements by amending the on-line version of the relevant document.  Unless you have entered into an Addendum that ensures a fixed price for a period of time (for instance, a Price Lock Guarantee Addendum), we may also change the prices for our services or the manner in which we charge for them.

(b) If you continue to use the Services following any change in our Customer Agreements, prices or other policies, you will have accepted the changes (in other words, made them legally binding).  If you do not agree to the changes, you will need to contact your local TWC office to cancel your Services.

(c) Any changes to our Customer Agreements are intended to be prospective only.  In other words, the amended version of the relevant document only becomes binding on you as of the date that we make the change.

One significant change Time Warner inserted in its Subscriber Agreement (the one printed in tiny print on tissue-thin paper, occasionally mailed with your bill) was deemed so important, it appears highlighted and in bold language:

Time Warner Cable now requires customers to submit disputes individually to binding arbitration, denying the right to bring or participate in any class action case. However, customers can opt-out of this provision simply by notifying the company through an online form. (You will need your Time Warner Cable account number.)

In practice, this would require McNally, Lenett, and millions of other customers to individually submit to a time-consuming arbitration proceeding — all to fight a $3.95 monthly fee. Few would bother. Wittels told The Consumerist the lawsuit still has merits because of other language Time Warner Cable maintains in its agreement which he believes holds the door open to a class action challenge.

Although customers are invited to purchase their own cable modem equipment to avoid the fee, the lawyers involved say the options are limited and expensive.

Time Warner Cable has expanded the list of modems approved for customer purchase. Buying your own cable modem will exempt you from the company’s $3.95/month modem rental fee, applicable to all but customers on special promotions or the elite Signature Home tier.

The Motorola SB6121 ($79) is back on the approved list, although customers intending to aggressively upgrade speeds as Time Warner introduces faster tiers may be happier with the Motorola SB6141 ($99), which supports more bonded channels than its lesser counterpart. The models from Netgear and Zoom were undistinguished in customer reviews — the Zoom for a noticeable number of reports complaining about the product’s short longevity and the Netgear for compatibility issues, poor quality control, and irritating customer/technical support.

Stop the Cap! continues to recommend the Motorola SB6141, which delivers top-rated performance and is future-proof with support for up to eight bonded data channels — 300Mbps service. Although still expensive on Amazon.com, increased competition has dramatically cut pricing on eBay at “Buy It Now” prices ranging between $86-100 at time of writing. This means no bidding hassles, no upfront sales tax, and free shipping for most buyers. The Motorola 6141 is what we use here at Stop the Cap!, acquired from an eBay vendor for $99. Now you can do even better.

Would you pay Time Warner Cable $6.99 a month to guarantee they will update your equipment on a regular basis to provide you with reliable service?

An unspecified number of customers participating in a Time Warner Cable focus group are being asked that question this month as the cable company ponders charging the new fee in the future.

“As technology, Internet speeds, and entertainment options keep getting better, you want, and need, your equipment to keep up. That’s why we’re introducing Time Warner Cable’s Future Proof Guarantee. Starting next month you will see a $6.99 equipment lease fee on your bill, which will guarantee you have the right equipment for all your TWC services. That means we will keep your Modem, and DVR set-top box up-to-date so you can enjoy a seamless, reliable experience and the service you expect.”

To be clear, Time Warner is only considering this new fee and is testing the concept with its focus group to gauge potential customer reaction.

The Stop the Cap! reader and focus group member who shared the news with us was not impressed.

“This feels like another money grab from an already very-profitable company,” our tipster told both us and the cable company.

The new fee would double-down on Time Warner’s already lucrative new cable modem rental fee, now $3.95 a month. The new $7 fee would cover “upgrades” that most subscribers might assume they were already entitled to as paying customers. We have no word if this fee would replace existing equipment rental fees or would apply in addition to those rental fees.

Any customer renting equipment can generally be assured of getting a free “technology upgrade” just by swapping existing equipment at any Time Warner Cable store — no additional fee required.

Time Warner Cable customers irritated by the cable operator’s new $3.95 monthly modem rental fee who do not want to pay premium prices for a purchased modem can enjoy the benefits of a loophole by ordering broadband service from Earthlink, which offers nearly identical performance over Time Warner’s cable broadband network and currently charges no modem rental fees.

Earthlink has maintained a third party agreement to provide its service over Time Warner Cable for more than a decade, and the company’s service operates transparently over your existing Time Warner Cable connection and equipment. In our own tests, we found Earthlink’s service identical to Time Warner Cable with two exceptions:

1. Earthlink does not provide Time Warner’s “Speedboost” technology which delivers slightly faster service for the first few seconds of a large file transfer;
2. You will receive an Earthlink e-mail address and forfeit your existing Time Warner Cable e-mail account.

The current promotional offers:

• Up to 768 Kbps service: $29.95/month
• Up to 6.0-10.0 Mbps service: $29.95/month for first 6 months; $41.95/month thereafter
• Up to 10.0-15.0 Mbps service: $39.90/month for first 6 months; $51.90/month thereafter
• Standard installation fee varies by region.
• Term Commitment (contract): None (no contract required)

Despite information on Earthlink’s website, the upload/download speeds on offer are identical to what Time Warner Cable or Bright House sells for their Standard or Turbo services in your area. After six months, you can purchase your own modem and return to Bright House or Time Warner Cable on a New Customer promotion and further extend your savings.

We found Earthlink’s online service qualifier not always accurate. For example, we found service at Stop the Cap! HQ “unavailable,” even though an address a few doors down qualified for service. We also discovered Earthlink heavily promotes its more expensive 15Mbps option, ignoring the less expensive 10Mbps service, even though both are available.

No matter. You can skip the hassle and just call your local Time Warner Cable office, which will process your order for Earthlink instantly over the phone. You do not need a new modem — a simple billing change on Time Warner Cable’s computer system is all that is required to switch providers. Earthlink will be billed on your Time Warner Cable bill.

Be aware that switching to Earthlink could effect any double-play or triple-play packages you signed up for earlier. Ask your TWC representative if there are any unintended pricing consequences for changing Internet providers. If there are, let them know you are switching to save money and ask if TWC can offer any competing retention offers to match the price. You may find Time Warner amenable to keeping your business and lowering your price.

There is no long term guarantee Time Warner won’t force Earthlink to charge an identical modem rental fee in the near future, but at least you can avoid paying it now until the authorized modems on Time Warner’s list come down in price.

This will cost you $10/month in Milwaukee

Stop the Cap! has learned Time Warner Cable is back with another equipment rate increase, this time for television set top boxes that will now cost $10 a month each, beginning in Wisconsin.

Time Warner Cable customers in the Milwaukee area are first getting the notice of the $1.05 rate increase on their latest bill. The new rate takes effect in November.

“Many businesses, including ours, are facing rising costs and have to adjust prices in order to maintain their operations,” explains Time Warner Cable Wisconsin spokeswoman Stacy Zaja. “We also understand that some of our customers are struggling in this economy, and are doing the best to hold the line on our prices.”

The rate increase comes at the same time Time Warner is introducing a $3.95 monthly modem rental fee for its broadband service. Unlike cable modems, however, Time Warner will not allow customers to purchase their own set top boxes, so it represents a rate increase customers can only avoid by canceling service or negotiating a lower rate.

At this time, Time Warner will not increase its prices for cable television service, just the equipment needed to view it.

The Business Journal notes Time Warner may be taking a chance on its latest rate increase, because AT&T’s U-verse service is increasingly available as an alternative choice for Milwaukee residents. Time Warner last raised the set top box rental fee by $1 in 2011, along with a $5 monthly rate hike for its cable television service.