A class action lawsuit accusing AT&T of methodically over-measuring wireless customers’ usage and subjecting them to overlimit fees has been re-assigned to arbitration because AT&T wrote terms into contracts denying customers the right to pursue grievances any other way.

Plaintiff Patrick Hendricks claimed AT&T was systematically overstating customer usage by 7-14 percent with a rigged usage meter.  Hendricks claims some customers were overbilled by as much as 300 percent for phantom data usage that he claims never took place.  The measuring errors found in a two-month study cited by Hendricks were in AT&T’s favor, potentially exposing customers to surprise overlimit fees or, more recently, speed throttles.

But U.S. District Judge Charles Breyer shut down the court case, heard in a San Francisco federal courtroom.  Breyer ruled that since AT&T’s contracts bar lawsuits by customers, Hendricks must pursue his case in the venue required by AT&T — arbitration.

“[AT&T’s contract] requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available … in the event of a suit,” Breyer ruled.

Ironically, Breyer is the same judge that dissented from an earlier case — AT&T v. Concepcion, that ultimately set the stage allowing AT&T to force consumers to pursue arbitration and practically speaking, remove their right to pursue class action relief.

“What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?,” Breyer wrote. “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30’.”

Brandi M. Bennett, a California attorney who specializes in intellectual property law, considers arbitration clauses to be a major threat to class action cases:

“Class actions make it possible to find recourse for individuals with damages that make traditional litigation impractical. AT&T Mobility v. Concepcion appears to leave the average consumer at risk of being defrauded by corporations for $10, $20, $50 without any practical remedy. If one million customers are damaged for $20 each, a corporation can improperly realize a $20 million gain. Class actions serve to prevent that.”

Arbitration can offer a poor substitute, because most arbitration firms are beholden to their corporate clients for repeat business.  An arbitrator perceived to be exceptionally pro-consumer stands little chance of being retained when corporate defendants pay the arbitration firm for its services.  Some arbitration policies require consumers and the company to split the costs of arbitration, but those costs often easily exceed the value of the original claim, discouraging customers from pursuing a refund settlement.

Companies understand that reality, which is why clauses requiring arbitration to settle disputes are increasingly common in service contracts.

Hendricks’ original suit sought restitution for the entire class of consumers and damages for breach of contract, unjust enrichment, unfair and fraudulent business practices, unfair competition, and violations of the federal Communications Act.  Most arbitration clauses require consumers to file individual complaints, which few may ultimately do considering arbitration proceedings may occur in another city and often requires the complainant to appear in person to provide testimony.

Phillip Dampier on USF Reform: It might have been great, it could have been a lot worse, but ultimately it turned out to be not very good.

Last week, the Federal Communications Commission unveiled their grand plan to reform the Universal Service Fund, a program originally designed to subsidize voice telephone service in rural areas deemed to be unprofitable or ridiculously expensive to serve.  Every American with a phone line pays into the fund through a surcharge found on phone bills. Urban Americans effectively subsidize their rural cousins, but the resulting access to telecommunications services have helped rural economies, important industries, and the jobs they bring in agriculture, cattle, resource extraction, and manufacturing.

The era of the voice landline is increasingly over, however, and the original goals of the USF have “evolved” to fund some not-so-rural projects including cell phone service for schools, wireless broadband in Hollywood, and a whole mess of projects critics call waste, fraud, and abuse.  For the last several years, USF critics have accused the program of straying far from its core mission, especially considering the costs passed on to ratepayers.  What originally began as a 5% USF surcharge is today higher than 15%, funding new projects even as Americans increasingly disconnect their landline service.

For at least a decade, proposals to reform the USF program to bridge the next urban-rural divide, namely broadband, have been available for consideration.  Most have been lobbied right off the table by independent rural phone companies who are at risk of failure without the security of the existing subsidy system.  Proposals that survived that challenge next faced larger phone company lobbyists seeking to protect their share of USF money, or by would-be competitors like the wireless industry or cable operators who have generally been barred from the USF Money Party.

This year, FCC Chairman Julius Genachowski finally achieved a unanimous vote to shift USF funding towards the construction and operation of rural broadband networks.  The need for broadband funding in rural areas is acute.  Most commercial providers will candidly admit they have already wired the areas deemed sufficiently profitable to earn a return on the initial investment required to provide the service.  The areas remaining without service are unlikely to get it anytime soon because they are especially rural, have expensive and difficult climate or terrain challenges to overcome, or endure a high rate of poverty among would-be customers, unable to afford the monthly cost for the service.  Some smaller independent phone companies are attempting to provide the service anyway, but too often the result is exceptionally slow speed service at a very high cost.

The new Connect America Fund will shift $4.5 billion annually towards rural broadband construction projects.  Nearly a billion dollars of that will be reserved in a “mobility fund” designated for mobile broadband networks.

The goal is to bring broadband to seven million additional households out the 18 million currently ignored by phone and cable operators.

The FCC believes AT&T will take a new interest in upgrading its rural landline networks, even as the company continues to lobby for the right to abandon them.

Unfortunately, the FCC has set the bar pretty low in its requirements for USF funding.  The FCC defines the minimum level of “broadband” they expect to result from the program — 4/1Mbps.  That’s DSL speed territory and that is no accident.  The phone companies have advocated a “less is more” strategy in broadband speed for years, arguing they can reach more rural customers if speed requirements are kept as low as possible.  DSL networks are distance sensitive.  The faster the minimum speed, the more investment phone companies need to make to reduce the length of copper wiring between their office and the customer.  Arguing 4Mbps is better than nothing has gotten them a long way in Washington, but it also foreshadows the next digital divide — urban/rural broadband speed disparity.  While large cities enjoy speeds of 50Mbps or more, rural towns will still be coping with speeds “up to” 4Mbps.

The FCC does not seem too worried, relying heavily on a mild incentive program to prod providers to upgrade their DSL service to speeds of 6/1.5Mbps.

The irony of asking AT&T to invest in an aging landline network they are lobbying to win the right to abandon is lost on Washington, and future speed upgrades for rural America from companies like Verizon are in serious doubt when they sell off their rural areas to companies like FairPoint and Frontier and leave town.

Critics of USF reform suggest the program is still stacked in favor of the phone companies, and considering the state of their copper wire networks, would-be competitors are scratching their heads.

The cable industry, in particular, is still peeved by reforms they feel leave them at a disadvantage.  Of course, Washington may simply be recognizing the fact cable companies are the least likely to wire rural America, but when they do, the service that results is often faster than what the phone company offers.  The nation’s biggest cable lobbyist — ironically also the former chairman of the FCC, Michael Powell — still feels a little abused after reading the final proposal.

“While we are disappointed in the Commission’s apparent decision to ignore its longstanding principle of competitive neutrality and provide incumbent telephone companies an unwarranted advantage for broadband support,” said National Cable & Telecommunications Association President Michael Powell, “we remain hopeful that the order otherwise reflects the pro-consumer principles of fiscal discipline and technological neutrality that will bring needed accountability and greater efficiency to the existing subsidy system.  We are particularly heartened by the Commission’s efforts to ensure that carriers are fairly compensated for completing VoIP calls.”

Wireless operators are not happy either, because the arcane requirements that come with the USF bureaucracy were written with the phone companies in mind, not them.  Small, family-owned providers find it particularly difficult to do business with the USF, if only because they don’t have the staff or time to navigate through endless documents and forms.  Phone companies do.

Your phone bill is going up.

Many consumer groups are relieved because it could have been much worse.   The FCC could have simply capitulated and adopted the phone companies’ wish-list — the ABC Plan.  Thankfully, they didn’t, but the FCC has naively left the door open to substantial rate increases for consumers by not capping the maximum annual outlay of the fund.  That follows the same recipe that invited higher phone bills and questionable subsidies awarded in an effort to justify the original USF program even after it accomplished most of its goals. Consumers may face initial rate increases of $0.50 almost immediately, and up to $2.50 a month five years from now.

The FCC, unjustifiably optimistic, suspects phone companies and other telecommunications interests won’t gouge customers with higher prices.  They predict rate increases of no more than 10-15 cents a month.  I wouldn’t take that bet and neither will consumer groups.

“We’re going to press the FCC to ensure that these are temporary increases, because history has shown that these types of costs tend to stick around and go on and on and on,” said Parul Desai, policy counsel for Consumers Union.

An even bigger question left unanswered is just how far the FCC will get into the broadband arena when it refuses to take the steps necessary to ensure it has an admission ticket.  The agency has avoided classifying broadband as a telecommunications service, an important distinction that would bolster its authority to oversee the industry.  Without it, some members of Congress, and more importantly the courts, have questioned whether the FCC has any business in the broadband business.  Just one of the many high-powered players in the discussion could test that theory in the courts, and should a judge throw the FCC’s plan out, we’ll be back at square one.

[flv]http://www.phillipdampier.com/video/C-SPAN Tom Tauke from Verizon on Changes to the Universal Service Fund 10-29-11.flv[/flv]

Verizon’s chief lobbyist Tom Tauke spent a half hour last weekend on C-SPAN taking questions about USF reform and the side issues of IP Interconnection and Net Neutrality policies. Tauke supports consolidation of small phone companies into fewer, larger companies.  He also expands on his company’s lawsuit against Net Neutrality, which fortuitously (for Verizon) will he heard by the same D.C. Court of Appeals that threw out the FCC’s fines against Comcast for throttling broadband connections.  Politico’s Kim Hart participates in the questioning, which also covered wireless spectrum issues impacting Verizon Wireless, AT&T’s stumbling merger deal with T-Mobile, and Verizon’s latest lawsuit against the FCC for data roaming notification rules.  (28 minutes)

Time Warner Cable intends to implement a series of rate increases for 2012 across many of their service areas, beginning with a 4% rate hike for their cable television service that will take effect in December.

A cable company memo received by Stop the Cap! indicates this isn’t likely to be the only rate increase from the cable operator, with possible rate adjustments for broadband and phone products to be announced at a later date.  The cable television portion of your bill will increase because of what the company calls “dramatically higher programming costs, additional programming and features, and continued investment in the company’s network and customer service operations.”

Some examples of the new rates¹, which will vary slightly in different service areas, includes new pricing for the company’s DVR box in some regions:

• Digital Cable (was $72.99) $77.49
• Talk & Surf (was $86.99) $89.94
• Watch & Surf (was $118.99) $125.49
• Watch & Surf Plus (was $141.99) $148.49
• DVR Service (was $11.95) $12.95 (additional equipment rental charges may apply)

¹Time Warner Cable Maine

Customers currently on price protection agreements, term contracts, or special rate promotions will not be impacted by the rate increases until the expiration of their contract or promotion.  Customers will receive an official notification of the rate adjustment on their next billing statement.

Cablevision executives reported dismal financial numbers for the third quarter of this year, as the cable company lost 19,000 cable television customers while profits plummeted some 65% at the Bethpage, N.Y.-based company.

Not even 17,000 new broadband customers could erase the damaging losses incurred by Cablevision cord-cutting, some of it as a result of the cable operator’s damaging retransmission consent disputes that deprived viewers of popular local broadcast outlets and cable channels.  The company lost so much subscriber goodwill, company executives admitted they pared back an anticipated rate increase just to protect themselves from further customer defections.

Programming disputes like this one with WABC-TV and their parent company Disney caused more than a few Cablevision customers to head for the competition.

Cablevision, like Time Warner Cable before it, won’t admit that cable cord-cutting is responsible for what one investment bank fears could be the start of an “ex-growth” era in cable television.  Instead, Cablevision executives continue to blame the poor economy for subscription losses, as well as aggressive pricing competition from their biggest rival — Verizon FiOS.  Adding pressure is the relentless demand for higher programming fees, which directly translates into relentless annual rate increases for cable television service.

“With regard to programming [costs, they are] an issue and it is an expensive part of our business.  It is the single biggest cost item we have,” said Gregg G. Seibert, Cablevision’s chief financial officer and executive vice-president. “And the fact that retransmission consent became necessary from the eyes of broadcasters, particularly after the 2008 recession, has been flowing through our business, and there was a large step up [in fees]. I think that the overall rate of programming [costs] going forward will moderate to some extent naturally.”

Seibert called the aggressive retransmission consent fee disputes between broadcasters and cable operators evidence of the collapse of the traditional “free TV” business model.  Because ad revenues are down, broadcasters are increasingly dependent on fees charged to cable operators for permission to include their stations on the cable dial.  That means cable subscribers are increasingly subsidizing the broadcast television business.

Seibert

Seibert’s revelation came too late to stop some of the nation’s most visible retransmission consent battles between Cablevision and network-owned New York-area television stations and cable networks.  When Cablevision blacked out a local station showing coverage of the World Series during the last dispute, fed up customers decided to take their cable business to Verizon or a satellite TV provider.

Cablevision has been trying to lick their wounds ever since, launching increasingly aggressive pricing promotions and “free gift” offers to keep existing customers while trying to win back old ones.

“We’ve recently introduced an offer that includes a new Apple iPod Touch primarily for win back situations,” said Thomas M. Rutledge, chief operating officer.  “Selling for the Triple Play package of video, data, and voice is now at 74% and roughly half of this selling is for our new Ultimate Triple Play, which includes a new higher-priced Boost Plus [broadband] service and a wireless router.”

Cablevision achieves triple-play signups by heavily discounting the package for new and returning customers.  It also hopes to succeed with a ‘more for less’ pricing strategy, delivering new features and services without necessarily charging extra for all of them.  With discounts, free gifts, and additional services, Cablevision is getting some of their old customers back.

Selling faster broadband is a key component in Cablevision's strategy to attract more broadband customers. Boost Plus delivers 50/8Mbps service for an additional $14.95 a month.

“As of September 30, our win back total is more than 45% of customers who once tried Verizon FiOS,” Rutledge claims.

Rutledge noted Cablevision’s participation in the industry’s TV Everywhere online video initiative has grown even stronger with the recent agreement to provide Cablevision cable-TV customers free access to Turner-owned cable network programming.

Seibert admits the more competitive business environment and high profile programming disputes in suburban New York City are impacting profits.

“We had a few significant items in the quarter affecting our results including higher programing costs and higher sales in marketing as we continue to aggressively promote our products and services while revenue growth was essentially flat,” Seibert said.

Those challenges are creating a sense of unease on Wall Street regarding the cable business’ core product: cable television and the increasingly aggressive pricing promotions necessary to keep customers from disconnecting service.

“There is growing concern among the investor community about [the] whole [cable] industry going to ex-growth,” said Jason Bazinet from Citigroup.

Rutledge

“Programming costs are rising faster than video revenues,” Sanford C. Bernstein, an analyst for Craig Moffett, told the Wall Street Journal. “Unless there’s growth somewhere else in the business model, you’ve got the worst of all worlds: a slow-or no-growing business with lower margins.”

Rutledge outlined Wi-Fi and broadband enhancements as part of Cablevision’s priorities for the upcoming quarter:

“We’ve been building out a Wi-Fi network and we’ve had continuous subscriber utilization increases on that network.  We now have more than one-half-million devices out there that can use Wi-Fi and watch our full cable television service in the home.

“And we’re deploying a new Boost product with higher speed broadband, which includes a more sophisticated wireless router as part of that package.

“We think Wi-Fi is a major strategic part of our business. We think that we can continue to take advantage of that. We think our video product today as a result of Wi-Fi is a superior product to our competitors – all of our competitors, and we think that our data service is enhanced by the Wi-Fi outside the home, and we continue to try to build value for our customers and take market share.”

The cable company is already aggressively marketing its Boost Plus service, which delivers 50/8Mbps broadband for an additional charge of $14.95 a month on top of the standard broadband rate.

Bright House Networks customers now have access to more than 100 channels of online video entertainment thanks to the cable company’s release of Bright House TV, a new free app for the Apple iPad.

Essentially a rebranded version of Time Warner Cable’s TWCable TV app, Bright House TV comes with the exact same restrictions that have peeved more than a few Time Warner customers trying to use it:

• You must have a minimum of Bright House Networks’ Digital-Basic Cable TV service to watch;
• You must use your Bright House-supplied Internet connection to access the service on your home’s Wi-Fi connection;
• The service will not work outside of your home, over alternative Internet connections, or through your smartphone;
• You cannot currently access the service on any device other than an iPad.

For customers who do manage to meet all of these conditions, many report they are satisfied with the performance of the app.

“A great 1.0 version, acts as advertises, and HD looks great on the iPad,” says Bright House customer Chris McGonigal. “I would like to see fullscreen option (even though it cuts image), and the ability to hide the Status bar at the top. Also a favorite channels list, which kind of works with channel history.”

One other thing Bright House customers have in common with Time Warner Cable — they are still waiting for HBO Go, too.

“Here’s to seeing HBO Go on BHN next,” he adds.