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)

Lowering the bar on "unlimited use" customers.

Customers grandfathered on AT&T’s “unlimited use” data plan are starting to wonder whether AT&T’s definition of “unlimited” is worth the effort.

Stop the Cap! reader Earl shares news the wireless carrier has lowered the bar (and wireless speeds) on customers who consume just 2GB on an “unlimited” wireless plan the company charges $30 a month to keep.  That’s $15/GB before AT&T considers you a usage abuser.  Now customers are discovering for the same $30, they can buy a usage-limited plan that offers 3GB a month, one gigabyte more than the “unlimited plan” allows before AT&T considers you among the top 5% of its “heavy users” subject to a punishing speed throttle.

[From CNET’s ‘Ask Maggie’ column:]

Dear Maggie,
I am currently using an iPhone 3GS and am grandfathered into the unlimited data plan. I normally use between 3GB and 4GB of data a month without issue. I have now been notified after 2GB of data that my data consumption is in the top 5 percent of customers and my data will be throttled. I have noticed that this seems to be a common cutoff for other customers as well.

My question to you is–Does this make the unlimited data plan basically useless as the new 3GB plan will at least give me 1 extra gigabyte of data for the same price? Also, why don’t they just cancel the unlimited plan instead of forcing people to switch through throttling?

Dear Brian,
I think you’ve nailed this issue right on the head. AT&T’s throttling program seems to target customers, who are just over the 2GB threshold. And its new higher priced data plans that offer 3GB of data for $30 looks like an attempt to get customers to switch from their unlimited data plans to the 3GB plan for the same price.

Whether you can live with the slower data rates is up to you.

It’s increasingly apparent AT&T is engineering data plans to discourage customers from retaining their grandfathered unlimited-use plan.  By luring customers to ‘never-throttled’-tiered data plans, AT&T can expose customers to lucrative overlimit fees charged when plan allowances are exceeded.

AT&T customers in western Colorado are furious at AT&T for suggesting expensive phone upgrades were required to get back cell phone service that actually went out because of a cell tower failure.

Stop the Cap! first reported this story earlier this week, when Grand Valley customers discovered their cell phone service (and 2G data services) suddenly stopped working last weekend.  Customers lined up inside and outside the doors of AT&T stores in the Grand Junction area to get an explanation for the service disruption, only to be told their 2G data service had been discontinued and they’ll need to buy new phones to get their service restored.

An undisclosed number of customers signed new two year contracts and upgraded to smartphones — which carry a considerably upgraded price to cover the mandatory data plan that accompanies them.

But now AT&T says a cell tower failure was responsible for customers losing access to voice calling, and any disruption to 2G service will be temporary until the company completes shifting that data service to a different frequency band.

Now customers are complaining they were defrauded by AT&T store employees who emphatically told them no cell service outage existed in the area.

“Is that fraud,” AT&T customer Bill Somerville asked KJCT-TV. “Are they taking advantage of people by not giving them the information they should have gotten?”

“They categorically lied about the status of the service and [forced] people into a new contract and new equipment,” said AT&T customer Jay Anderson.

“If that is customer care, that’s not the customer care I’d like to have,” added Somerville.

[flv width=”360″ height=”290″]http://www.phillipdampier.com/video/KJCT Grand Junction ATT Customers Without Service And Definite Answers 9-21-11.mp4[/flv]

KJCT-TV talked to more angry customers who feel AT&T mislead them into signing expensive new two year contracts for new phones when a tower outage actually was responsible for the disrupted service.  (3 minutes)

KJCT-TV caught customers lined up literally out the door of this AT&T store in Grand Junction, Colorado.

AT&T store employees in the Grand Valley of Colorado are using the company’s upgrade of former Alltel service areas to 3G service as an excuse to tell customers they need to buy new cell phones if they continue to want to use their wireless service.

Customers lined up outside AT&T stores in communities like Grand Valley, Colorado on Monday fuming over service problems than began last weekend.

“I had about an half hour wait just to find out I had to buy a new phone and they wouldn’t credit me for it or anything,” customer Josh Simpson told KJCT-TV.

AT&T employees told the television newscast the company is “getting rid of the 2G service in Grand Junction to make room for larger networks.” Employees also said customers were sent a letter informing them about the service change, but customers might have overlooked the e-mail because it looked like spam.

Local employees shrugged their shoulders as customers repeatedly complained about having to foot the bill for brand new phones, often at full price, in order to continue using their service.

“It’s a corporate decision,” one replied.

At issue is AT&T’s adopted network, acquired originally by Verizon Wireless from Alltel but spun away to AT&T as part of an agreement with federal anti-trust officials.  Alltel’s network in the Grand Valley placed more prominence on its legacy 2G EDGE network than AT&T is willing to continue.  AT&T isn’t actually discontinuing the 2G network — it is moving 2G service to less-favorable spectrum it owns in order to make room for improved 3G coverage.  That might work fine in areas less expansive and rugged than western Colorado, but in the Grand Valley, it means many customers will find they no longer have data service at all.

The ongoing tower upgrades have also disrupted cell service generally, and when customers arrive at AT&T’s stores to complain, the employees on hand attempt to upsell them more expensive phones to “fix” the problem.

Customers calling to complain are met with busy signals or general statements from AT&T telling them the changes are for their own good.  But because so many basic cell phones don’t support 3G service, upgrades to phones that do often represent a major unexpected financial hit (and another two year contract and data plan if the phone happens to be a smartphone).

“Alltel served us just fine for many years,” writes our Glade Park reader Tim. “When AT&T eventually showed up, we got everything we never wanted, and this should be a lesson for those who think AT&T will somehow ‘improve’ service at T-Mobile if they acquire them.”

AT&T customer Joan Burns told KJCT AT&T just made up her mind for her.

“I will never again sign a contract with them,” she said. “That’s bull.”

[flv width=”360″ height=”290″]http://www.phillipdampier.com/video/KJCT Grand Junction ATT Customers Forced To Upgrade Cell Phones 9-19-11.mp4[/flv]

KJCT in Grand Junction reports AT&T customers may be noticing a disturbance in their cell phone service, as AT&T employees use it as an opportunity to get customers to upgrade to more expensive phones.  (3 minutes)