Clearwire’s often-unclear “network management” policies are the subject of a lawsuit filed yesterday in Seattle seeking class action status.

Angelo Dennings vs. Clearwire Corporation was filed in the Western District of Washington federal court, and seeks refunds for consumers who were mislead by the company’s failure to disclose its network speed throttling and usage limitations, and charged early termination fees when subsequently canceling service.

Clearwire promises that its high-speed Internet service provides a “fast” and “always on, always secure” Internet connection allowing users to “[d]ownload pictures, music and videos.” But Clearwire does not provide an “always on,” “high-speed” connection as it promises. Clearwire purposefully slows the connection of its users because it cannot accommodate the high volume of traffic. Clearwire engages in a practice known as “throttling,” which is the intentional delay and/or blocking of Internet communications. This practice deprives Clearwire customers of the ability to “[d]ownload music and videos,” and leads to slow connection speeds.  Clearwire engages in throttling at times when demand for Internet use is highest, beginning at approximately 7:30 p.m. and ending at about 1:00-to-2:00 a.m.

If users attempt to cancel their service, Clearwire claims that, pursuant to its “contract” with them, it is entitled to collect an early termination or a re-stocking fee. The “contract” referred to by Clearwire is not a contract between it and its customers. The contract between Clearwire and its customers is simply that the customers will pay for, and Clearwire will provide, “unlimited” Internet usage at certain speeds, depending on the speed and payment plan selected in Clearwire’s stores, kiosks, or online.

The remaining “terms” invoked by Clearwire at its convenience are embedded in a document that consumers never see prior to subscribing to Clearwire’s service. Clearwire sells its services in its stores, kiosks at shopping centers, and online. Clearwire’s stores and kiosks do not have copies of this “contract” on hand for potential subscribers to read before they “agree” to its terms. Users who subscribe through Clearwire’s website never see the contract either because the link to it is at the bottom of a page, in substantially smaller font and lighter shade than all of the other text on the page. The text states: “Want to read the fine print (and who doesn’t read the fine print?) It’s all there in the CLEAR Legal Index.” No one wants to read fine print legalese and almost no one does. The statement is obviously and sharply ironic, and mocks anyone who may have been fussy enough to have considered continuing.

Despite not showing its terms to consumers, Clearwire refuses to allow users to cancel their service without paying the unconscionable fees it claims it is owed under this “contract.” These fees include an early termination fee (“ETF”), which penalizes consumers that want out before the end of the two-year term. Although Clearwire breached its contract with its customers, Clearwire insists on the payment of this ETF when customers realize they are not getting what they bargained for.

The suit argues that Clearwire has oversold its wireless broadband network, and allegedly quotes a company representative at one point telling Dennings, “Clearwire had signed up more customers than its cell towers could accommodate, and that therefore it was ‘managing’ users’ accounts.”

Attorney Clifford Cantor argues in the filing that Clearwire reduces customer speeds to 300kbps or lower when their network is congested, making the service unsuitable for most broadband applications.  Dennings, who lives near Ft. Worth, Tex., was outraged to learn Clear sold him a home and mobile broadband account that was advertised as a replacement for wired cable or DSL broadband, but was left with service he considered largely useless when throttled.  Even more upsetting, the suit alleges, Denning was asked to pay a $219 early contract termination and restocking fee when he tried to cancel service over the matter.

Cantor is asking for a court ruling declaring Clear’s policies to be unconscionable, attorneys’ fees of at least $5,000, and refunds for all impacted subscribers.

Thanks to Stop the Cap! reader Michael in Chicago for sending along a copy of the lawsuit.  He runs the “Clear/Clearwire internet not as advertised” Facebook group.

A new report proves what Stop the Cap! has advocated for more than two years now — communities seeking the fastest, most-modern, and most aggressively priced broadband can get all of that and more… if they do it themselves.

The concept of community self-reliance for broadband has been dismissed and derided for years among small government conservatives and corporately-backed dollar-a-holler groups who claim government can’t manage anything, but when it comes to broadband in the state of North Carolina, the evidence is in and it is irrefutable — Tar Heel state residents are getting the most bang for their broadband buck from well-managed and smartly-run community-owned broadband networks.

Christopher Mitchell from the New Rules Project — part of the Institute for Local Self-Reliance, gathered evidence from North Carolina’s different broadband providers and found the best broadband services come from local communities who decided to build their own fiber networks. instead of relying on a handful of cable and phone companies who have kept the state lower in broadband rankings than it deserves.

North Carolina is undergoing a transition from a manufacturing and agricultural-based economy that used to employ hundreds of thousands of workers in textile, tobacco, and furniture manufacturing businesses.  In the last quarter-century, the state has lost one in five jobs to Asian outsourcing and America kicking the tobacco habit.  Its future depends on meeting the challenges of transitioning to a new digital economy, and major cities like Charlotte, Raleigh, and Greensboro have risen as well-recognized leaders in engineering, biotech, and finance.

But for rural and suburban North Carolina, success has been hindered by a lack of necessary infrastructure — particularly broadband for small businesses and entrepreneurs.  It becomes impossible to attract high tech jobs to areas that are forced to rely entirely on low speed DSL service, if that is even available.

In communities like Wilson and Salisbury, long frustrated by area providers not delivering needed services, a decision was reached to build their own broadband infrastructure — modern fiber to the home networks worthy of the 21st century.

Mitchell’s report charts the benefits available to every resident, as communities with state-of-the-art fiber networks consistently deliver the most robust service at the lowest prices, all without risk to local taxpayers.  Better still, when the network construction costs are paid back to bondholders, future profits generated by the community-owned systems will be plowed back into local communities to reduce tax burdens and keep service state-of-the-art.

“Comparing the tiers of residential service from Wilson or Salisbury against the providers in the Raleigh area shows that the communities have invested in a network that offers far faster speeds for less money than any of the private providers,” Mitchell concludes.  “Whether communities in North Carolina are competing against other states or internationally for jobs and quality of life, they are smart to consider investing in a community fiber network.”

Mitchell’s report arrives just a few weeks after voters handed North Carolina’s General Assembly to GOP control for the first time in more than a century.  Both cable and phone companies in the state modestly suggest that is good news for their legislative agenda, which is an understatement equal in proportion to the historic handover of control of both the House (67-52) and the Senate (31-19).  The top items on the agenda of incoming members is a checklist of conservative activist favorites, including a war on unions, mandatory ID cards for voting, opting the state out of recently enacted health care reform, an eminent domain constitutional amendment, sweeping deregulation reform to favor business interests, and redistricting to “restore fairness” in future elections.

The state’s big cable and phone companies are convinced with a list like that, they can come along for the legislative ride and get their agenda passed as “pro-business reform.”  That means a much larger fight in 2011 for the inevitable return of corporate protection legislation banning exactly the kinds of municipal networks that are delivering North Carolina better, faster, and cheaper broadband.

Frontier Communications is continuing to suffer service outages and problems across many of their respective service areas.  Some of the most serious continue in West Virginia, especially in the northern panhandle region where emergency response agencies continue to complain about sub-standard service from the phone company that took over Verizon phone lines this past summer.

Hancock County officials report their T1 line that connects emergency dispatchers with the county’s dispatch radio system was out of service again early Wednesday evening.  This Frontier-owned and maintained circuit has suffered repeated outages over the past year, and the latest outage comes after company officials promised to inspect the 12,000 foot line inch-by-inch.  Once again, the county’s emergency agency is relying on help from nearby counties and a backup radio system to communicate with at least some of the area’s police and fire departments.

Outages of 911 service are not just limited to West Virginia.  Illinois Valley (Oregon) Fire District Chief Harry Rich was forced to rely on amateur radio operators and extra staffing in county firehouses to cope with a 911 system failure caused by Frontier service problems in late September.  Rich called a public meeting in late October with Cave Junction Mayor Don Moore, Josephine County Sheriff Gil Gilbertson and Josephine County Commissioner Dave Toler to discuss the implications of Frontier’s outage and what steps the region needs to take to mitigate future outages.

In Greencastle, Indiana a Frontier phone outage disrupted service for DePauw University and the Putnam County Hospital Oct. 20.  In Meshoppen, Pennsylvania an outage caused by a downtown fire on Oct. 24 left 1,200 homes in the community without telephone service for most of the day.  Frontier has also suffered periodic copper wire thefts, particularly in the Appalachian region where illicit sales of copper can bring quick cash for those addicted to drugs.  In Eastern Kanawha County, West Virginia, some 100 customers lost service for at least a day after thieves yanked phone cables right off the poles.

Sandman

In Minster, Ohio village officials have hired a law firm to sue Frontier Communications over a wiring dispute.  Village officials accuse Frontier of being intransigent over the removal of telephone lines from poles to bury them underground.  Village Solicitor Jim Hearn told the local newspaper utility companies should be responsible for the costs of installing underground wiring.

In Wenatchee, a community in north-central Washington state, Frontier’s general manager is going all out to try and assuage customers Frontier will provide better service than Verizon.  Steve Sandman went as far as to hand out his direct number to the local media, inviting residents with service problems to call.  It’s (509) 662-9242.

Sandman promises other changes for his customers, according to The Wenatchee World:

Sandman said all Frontier technicians will be fully trained in the installation of phones, internet and TV. No more modems sent through the mail for the customer to install by themselves, he said.

“We’ll be there on the premises for complete installation,” he said. “And, if the customer needs it, we’ll provide some fundamental training on how to turn on the computer, hook up to the internet and get started using online services. Or give advice on how to use the TV remote.”

But all of these issues pale in comparison to the all-out battle forming in the state of West Virginia over broadband stimulus money awarded to help Frontier extend fiber broadband service to local government and community institutions.  One of their biggest competitors, Citynet, has launched a well-coordinated attack on what it calls “a flawed plan that does nothing to provide faster Internet speeds or lower the majority of Internet costs for West Virginians.”

Frontier will spend $40 million of federal broadband stimulus money on a network that will deliver fiber-fast speeds only to government, educational, and health care institutions.

Martin

James Martin II, president and CEO of Citynet argues Frontier is building a state of the art fiber network very few West Virginians will ever get to use, from which it will profit handsomely delivering service to government entities with which it already has contracts.  For the rest of West Virginian homes and businesses, Frontier will deliver outdated DSL service delivering an average of 3Mbps service at a time when adjacent states are enjoying service 2-4 times faster.

Citynet argues funding would be better spent on a middle mile, open fiber backbone available for use by all-comers.  Martin notes West Virginia is one of the few states in the northeast and mid-Atlantic region almost completely bypassed by the core Internet backbone.  The only exception is a fiber link connecting Pittsburgh with Columbus, Ohio, which briefly traverses the northern panhandle of West Virginia.  Citynet’s perspective is that West Virginia cannot improve its poor broadband standing — 48th in the nation, unless it has appropriate infrastructure to tap into for service.

As an example, Martin points to the community of Philippi, served by fiber to the home cable TV and broadband service.  The community’s fiber network is capable of Lamborghini speeds between homes within Philippi. But the community can only afford a single 45 megabit DS-3 connection to the outside world, provided by Citynet for just under $8,000 a month.  That line is shared among every broadband customer in Philippi trying to get out onto the Internet. The result is that Philippi residents can only buy a broadband account with speeds up to 2Mbps for $60 a month on that all-fiber network. That’s equivalent to being forced to drive that Lamborghini on a dirt road.

Martin says if the broadband stimulus money was spent on constructing a statewide open fiber backbone, they could sell the community a 1Gbps pipeline for around $3,000 a month.

Philippi's fiber optic broadband is not so fast, thanks to a bottleneck between the community and the rest of the Internet

“West Virginia is at a crossroads,” Martin said in a prepared statement. “We can build a ‘middle-mile’ solution for high-speed Internet infrastructure and create jobs, or we can stick with the status quo and watch West Virginia fall behind once again. The outcome will determine our state’s economic growth for years to come.”

The state, according to Martin, is reneging on its promise to build a broadband network that will deliver improved service to institutional users as well as at least 700,000 homes and 110,000 business in the state.

Instead, the project would only serve 1,000 “points of interest,” he said. The state’s plan would limit Internet speeds and make broadband service unaffordable, Martin argues.

“If the state were to build a true middle-mile solution, then businesses and residential Internet customers would see a significant reduction in price, as well as an increase in quality, capacity and speed,” Martin said. “Regretfully, the state chose to support a plan that relies on outdated telephone lines and a monopoly.”

Of course, Citynet does have a vested interest in the outcome of the project.  As a provider specializing in selling bulk broadband lines, they would be a prime beneficiary of a government-backed middle-mile broadband network.  Citynet’s argument that funding should be spent primarily on that network ignores the reality few new entrants are likely to enter West Virginia’s rural broadband market, with or without the benefit of a robust broadband backbone.  One of the biggest flaws of broadband stimulus spending is that much of the money will never directly provide “last mile” access to individual consumers and businesses that want broadband service where none is available.

Citynet needs to acknowledge much of West Virginia’s broadband is going to come from the phone company or a local municipality that elects to build its own network.  While cable companies deliver service in larger cities and suburban areas, large swaths of the state will never be wired for cable.  In fact, West Virginia is poorly covered even by wireless companies who see little benefit building extensive cell tower networks in the notoriously mountainous areas of the state that serve few residents.  The only existing rural telecommunications infrastructure universally available is copper telephone wires.  Like it or not, Frontier Communications will be the biggest provider of broadband in rural West Virginia.  A fiber backbone network alone delivers minor benefits to those residents who either cannot connect at any broadband speed, or are stuck with Frontier’s current 1-3Mbps DSL service.

Still, Citynet’s campaign is a useful reminder that too many broadband stimulus projects direct most of their money to networks ordinary consumers and businesses will never access.  And so long as local governments, schools, and hospitals “get theirs,” they have little interest in fighting to share those networks with consumers and for-profit businesses.

Citynet produced two radio ads criticizing West Virginia’s allocation of broadband stimulus money, and Jim Martin appeared on a local radio show to explain to West Virginia why this issue matters. (Ads from 11/2010 — Interview with Jim Martin: September 16, 2010) (18 minutes)
You must remain on this page to hear the clip, or you can download the clip and listen later.

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Ultimately, Verizon may get the last word, even after they abandoned the state’s landline customers.  Charleston, the state capital, has been selected as one of the early communities to receive Verizon Wireless’ new 4G LTE wireless broadband network, according to WTRF-TV:

Verizon subscribers in Charleston with devices that are 4G compatible will see changes within the next six to seven weeks. The whole city is expected to be covered by the network by mid-2011, according to company officials. From there, it will be expanded to cover Huntington, Parkersburg, Wheeling, Weirton, Beckley, Clarksburg, Morgantown, Fairmont and Martinsburg by 2013.

The company also plans to expand coverage along the entire Interstate 79 corridor from Charleston to Clarksburg.

The decision to include Charleston among the 39 metropolitan areas where Verizon would deploy its 4G network left many analysts of the industry scratching their heads, although they noted in online posts that Rockefeller chairs the Senate committee that regulates the telecommunications industry.

Should West Virginians find Verizon Wireless a suitable replacement for their landlines, Frontier may have bought themselves a pig in the poke.

[flv width=”640″ height=”500″]http://www.phillipdampier.com/video/West Virginia Frontier 11-4-10.flv[/flv]

WTOV-TV covers the emergency services outage in northwestern West Virginia in two reports, WBOY-TV covers the Citynet-Frontier controversy, and WTRF-TV covers the arrival of Verizon’s LTE upgrade, starting with Charleston.  (7 minutes)

Cisco has released the results of the third annual study from the Saïd Business School at Oxford University, which looks at broadband quality in 72 countries and 239 cities around the world.  The results are an embarrassment to much of North America’s broadband.

Using data from 40 million real-life broadband quality tests conducted in May-June of 2010 on the Internet speed testing site, Speedtest.net, the researchers were able to generally evaluate broadband conditions in the 72 countries which generated enough tests to provide useful results.

Although these kinds of studies often end up indirectly promoting Cisco’s own products (which they’d argue go hand-in-hand with broadband improvement), the findings highlight the very real problem that most aggressive broadband development is taking place outside of North America.  Here at home, reduced investment and foot-dragging has kept growth in check, even as prices continue to rise.

Based on the findings, the countries with the most sophisticated and advanced broadband networks are:

While the United States and Canada both languish in 15th place, broadband in South Korea has gone from excellent to outstanding as it continues aggressive, almost revolutionary improvements in service and speed:

• South Korea tops the broadband leadership ranking for the second year in a row;
• Broadband quality in South Korea is ranked the highest and has set a new benchmark for the world;
• Average download throughput is 33.5 Mbps, an increase of 55% from 2009, average upload throughput is 17 Mbps, an increase of 430%, and average latency is 47ms, an improvement of 35% vs. 2009 figure;
• South Korea has achieved 100% broadband penetration.

Cisco’s study found North America is in peril of falling even further behind because providers are trying to incrementally upgrade inferior, obsolete copper-wire phone networks on the cheap instead of replacing them.

As long as providers in the United States and Canada maintain a Dollar Store-mentality towards broadband improvement, both countries will increasingly fall further and further behind countries many Americans couldn’t find on a map.

Developing economies, especially in eastern Europe, are poised to leapfrog over North America and potentially become new powerhouses in the digital global economy of the future.  Among the nations on the verge of blowing past the United States and Canada: Lithuania, Latvia, Bulgaria, Romania, the Czech Republic and Hungary.

Welcome to the 500GB Broadband Economy

Cisco’s study also includes some important findings about data consumption that expose North American broadband providers who support Internet Overcharging schemes as direct threats to our economic future in a knowledge economy:

The study assessed the average consumption of different household segments and found major differences between basic-digital homes and smart and connected homes:

• Basic digital homes which mainly use the web for simple-quality requirement applications such as web browsing, instant messaging and social networking, consume about 20 GB per month;
• Smart and connected households, who would use the web for high definition video communication, high definition entertainment, tele-education or telemedicine, home security and others, can easily consume 500 GB per month and require an assured bandwidth of 18 Mbps.

Under these terms, Canada’s digital economy is already destined to fail because virtually every provider in the country limits broadband consumption to levels far below that required by “smart and connected households.”  In the United States, some providers have suggested as little as 5GB would represent “enough usage” under residential broadband accounts.  The nation’s largest cable company, Comcast, limits consumption to half the amount required.  Those advocating unlimited broadband or far higher limits are accused of being “bandwidth hogs” or pirates by many of these providers and their dollar-a-holler friends.

World leaders in broadband have some things in common: availability of inexpensive, unlimited broadband delivering fiber-fast speeds.  Those falling behind or at the bottom are raising broadband prices, putting limits on consumption and delivering slow broadband speeds that would draw laughter in countries as diverse as Japan, Sweden, and the United Arab Emirates.

Stage two of the nightmare is billing problems, and one West Virginia family discovered a phone bill they couldn't imagine possible.

Frontier Communications’ performance in West Virginia is starting to resemble northern New England’s never ending nightmare with FairPoint, the phone company that couldn’t manage landline service for customers in Maine, New Hampshire and Vermont and ended up in bankruptcy.  Things have gotten so bad, Frontier Communications now earns an “F” rating from the Better Business Bureau, called out specifically for failing to respond to complaints filed against the provider, failure to resolve the complaints they did acknowledge, and government action taken against the company for deceptive business practices.

Stop the Cap! reader Ralph in West Virginia drops us a line to share the latest progress the company is making in his part of West Virginia, or rather the lack thereof, starting with his own personal story:

The afternoon of  Thursday Sep. 2nd, our phones were out of order for awhile but were working by 4pm.  The DSL was still out so I waited to see if they’d get it fixed later that evening.  When it was still out Friday afternoon, I called to report it and asked if they had a reported outage for the area.  Their answer was no, and they proceeded to ask me to reset the modem and perform some additional diagnostic testing.

That didn’t “fix” it so they filed a trouble ticket and told me a technician would be out to check the outside wiring and, if needed, give me a new modem.  Frontier never showed up, so I called again and was left on hold for 30 of the 35 minutes that phone call lasted. I was finally told that it was a known outage affecting 12 people in the area.  No repairs were made on Sunday so I called on Monday and was told the problem now affected 16 people and they had no idea when it would be fixed.  It was finally fixed five days after initially reporting the outage, and nobody bothered to explain why it took so long.  I was later bemused to find an article in the weekly county paper that noted the outage was now up to impacting 20 people.

In your earlier report about Frontier, a spokesman for the company claimed the company follows a protocol about calling customers with service problems to see if the issues were resolved, but that call didn’t come until Sep. 8th, a full 24 hours after our DSL service was restored.  Keep up the good work, maybe Frontier and other providers will realize that the system is broken and we do want and need high speed Internet.

Ralph is not alone in having trouble with Frontier.  Just as Stop the Cap! reported with FairPoint’s failure in New England, service problems are just the beginning of the “fun” for transitioned customers.  Billing problems come next, and Frontier followed through in spades for one West Virginia family.

Meet Johna and Paul Snatchko, who are being billed $671.45 for dial-up Internet service calls by Frontier.  Not only did Frontier fail to deliver broadband service to the northwestern part of the state, now the Snatchko family has had to quit using dial-up Internet as well because the Snatchko’s claim Frontier made accessing the service a long distance call.

“When we switched from Verizon to Frontier, they said nothing will change,” Paul told WTOV News. “Well, there’s change.”

Despite selling the Snatchko family “unlimited long distance” service, Frontier still charged every call to their ISP at the regular long distance rate.  Why use dial-up in the first place?

“In this part of West Virginia, you’re very limited in your service,” Paul explained. “Dial-up is it for us. We’ve tried everything else. The only thing we could get was dial-up.”

The family also endured another Frontier specialty — the constantly changing promotional offers that are poorly explained by the company’s customer service representatives.

“They said it doesn’t include their package deal with the computer,” Johnna said, referring to a common Frontier promotion for a free netbook in return for a bundled package of services on a two year contract. “The first couple months it did and now it doesn’t include it.”

Frontier Communications earned an "F" rating from the Better Business Bureau

Frontier’s spokesman for the area, Bill Moon, made yet another TV appearance to try and explain it all away.

“There are billing problems that can happen anytime you have a switch over like that,” he told WTOV. “It’s probably a simple mistake on this particular customer’s bill, something that can be rectified pretty easy.”

Apparently not. Frontier told the family they have received two credits already and that is the last time the company is willing to provide them.

Despite the increasing frequency and seriousness of complaints now becoming a staple on the nightly news, Moon said incidents like this are rare.  He told the station out of more than 60,000 lines of service, they’ve had about 10 problems at most.

West Virginians are also waking up to the realization that Frontier’s promised “fiber upgrades” are little more than bait and switch, and they’ll never be able to directly access the fiber the company is installing.  As Stop the Cap! has reported previously, Frontier’s residential customers are more likely to encounter beneficial fiber in their morning breakfast cereal than from Frontier Communications.

The Charleston media is abuzz about the fact taxpayers are footing the bill for a $40 million fiber network that the company will own free and clear, and charge top dollar prices to access.  Citynet, one of Frontier’s competitors, blew the whistle over Frontier’s much-ballyhooed fiber expansion that is actually intended to serve public institutions, wholesale customers, and Frontier’s “middle-mile” network — not directly benefit consumers:

[…]Once Frontier spends the $40 million of taxpayer money to expand its network, it will be the sole owner of that network and the State will have no ownership rights. Thus, Frontier’s monopoly in the State of West Virginia will have been financed with taxpayer money.

Frontier will then sell services to state entities such as schools and government offices at the existing exorbitant prices. Those prices will never decrease, because no competitor can afford to spend $40 million or more of its own capital to build out its network.

Citynet, however, has provided the state with a plan for the expenditure of the taxpayer money that will expand broadband access in the state while at the same time lowering the cost of broadband access by 70 percent to 90 percent.

It is true that competitors, like Citynet, have existing contracts with Frontier for access to fiber facilities, but given that Frontier’s new network will be built with your money, it is Citynet’s position that those facilities should be made available to competitors at a nominal cost so that competitors can make their services available to the public at large at much lower prices.

Frontier has flatly refused Citynet’s proposal and intends to require competitors to pay inflated prices for access to fiber facilities it built for free.

As currently structured, the state’s plan for expanding broadband will do nothing more than expand Frontier’s monopoly, and will not address the fundamental problem of the high cost of broadband access.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/WTOV Steubenville Speaking Too Soon – Frontier’s Customers Still Complaining 9-15 and 9-28-10.flv[/flv]

WTOV-TV thought Frontier’s problems were behind them when they ran the first of two stories about the company Sep. 15th.  But then they met the Snatchko family and learned they spoke too soon.  Last night, they tried to determine how a West Virginia family could be charged nearly $700 for dial-up Internet service.  (4 minutes)