News Release

Justice Department Files Antitrust Lawsuit to Block AT&T’s Acquisition of T-Mobile

Transaction Would Reduce Competition in Mobile Wireless Telecommunications Services, Resulting in Higher Prices, Poorer Quality Services, Fewer Choices and Fewer Innovative Products for Millions of American Consumers

WASHINGTON – The Department of Justice today filed a civil antitrust lawsuit to block AT&T Inc.’s proposed acquisition of T-Mobile USA Inc.   The department said that the proposed $39 billion transaction would substantially lessen competition for mobile wireless telecommunications services across the United States, resulting in higher prices, poorer quality services, fewer choices and fewer innovative products for the millions of American consumers who rely on mobile wireless services in their everyday lives.

The department’s lawsuit, filed in U.S. District Court for the District of Columbia, seeks to prevent AT&T from acquiring T-Mobile from Deutsche Telekom AG.

“The combination of AT&T and T-Mobile would result in tens of millions of consumers all across the United States facing higher prices, fewer choices and lower quality products for mobile wireless services,” said Deputy Attorney General James M. Cole.   “Consumers across the country, including those in rural areas and those with lower incomes, benefit from competition among the nation’s wireless carriers, particularly the four remaining national carriers.   This lawsuit seeks to ensure that everyone can continue to receive the benefits of that competition.”

“T-Mobile has been an important source of competition among the national carriers, including through innovation and quality enhancements such as the roll-out of the first nationwide high-speed data network,” said Sharis A. Pozen, Acting Assistant Attorney General in charge of the Department of Justice’s Antitrust Division.   “Unless this merger is blocked, competition and innovation will be reduced, and consumers will suffer.”

Mobile wireless telecommunications services play a critical role in the way Americans live and work, with more than 300 million feature phones, smart phones, data cards, tablets and other mobile wireless devices in service today.   Four nationwide providers of these services – AT&T, T-Mobile, Sprint and Verizon – account for more than 90 percent of mobile wireless connections.   The proposed acquisition would combine two of those four, eliminating from the market T-Mobile, a firm that historically has been a value provider, offering particularly aggressive pricing.

According to the complaint, AT&T and T-Mobile compete head to head nationwide, including in 97 of the nation’s largest 100 cellular marketing areas.   They also compete nationwide to attract business and government customers.  AT&T’s acquisition of T-Mobile would eliminate a company that has been a disruptive force through low pricing and innovation by competing aggressively in the mobile wireless telecommunications services marketplace.

The complaint cites a T-Mobile document in which T-Mobile explains that it has been responsible for a number of significant “firsts” in the U.S. mobile wireless industry, including the first handset using the Android operating system, Blackberry wireless email, the Sidekick, national Wi-Fi “hotspot” access, and a variety of unlimited service plans.   T-Mobile was also the first company to roll out a nationwide high-speed data network based on advanced HSPA+ (High-Speed Packet Access) technology.  The complaint states that by January 2011, an AT&T employee was observing that “[T-Mobile] was first to have HSPA+ devices in their portfolio…we added them in reaction to potential loss of speed claims.”

The complaint details other ways that AT&T felt competitive pressure from T-Mobile.   The complaint quotes T-Mobile documents describing the company’s important role in the market:

• T-Mobile sees itself as “the No. 1 value challenger of the established big guys in the market and as well positioned in a consolidated 4-player national market”; and
• T-Mobile’s strategy is to “attack incumbents and find innovative ways to overcome scale disadvantages.   [T-Mobile] will be faster, more agile, and scrappy, with diligence on decisions and costs both big and small.   Our approach to market will not be conventional, and we will push to the boundaries where possible. . . . [T-Mobile] will champion the customer and break down industry barriers with innovations. . . .”

The complaint also states that regional providers face significant competitive limitations, largely stemming from their lack of national networks, and are therefore limited in their ability to compete with the four national carriers.   And, the department said that any potential entry from a new mobile wireless telecommunications services provider would be unable to offset the transaction’s anticompetitive effects because it would be difficult, time-consuming and expensive, requiring spectrum licenses and the construction of a network.

The department said that it gave serious consideration to the efficiencies that the merging parties claim would result from the transaction.   The department concluded AT&T had not demonstrated that the proposed transaction promised any efficiencies that would be sufficient to outweigh the transaction’s substantial adverse impact on competition and consumers.   Moreover, the department said that AT&T could obtain substantially the same network enhancements that it claims will come from the transaction if it simply invested in its own network without eliminating a close competitor.

AT&T is a Delaware corporation headquartered in Dallas.   AT&T is one of the world’s largest providers of communications services, and is the second largest mobile wireless telecommunications services provider in the United States as measured by subscribers.   It serves approximately 98.6 million connections to wireless devices.   In 2010, AT&T earned mobile wireless telecommunications services revenues of $53.5 billion, and its total revenues were in excess of $124 billion.

T-Mobile, is a Delaware corporation headquartered in Bellevue, Wash.   T-Mobile is the fourth-largest mobile wireless telecommunications services provider in the United States as measured by subscribers, and serves approximately 33.6 million wireless connections to wireless devices.   In 2010, T-Mobile earned mobile wireless telecommunications services revenues of $18.7 billion.   T-Mobile is a wholly-owned subsidiary of Deutsche Telekom AG.

Deutsche Telekom AG is a German corporation headquartered in Bonn, Germany.   It is the largest telecommunications operator in Europe with wireline and wireless interests in numerous countries and total annual revenues in 2010 of €62.4 billion.

Download a copy of the Complaint (PDF)

 

Deputy Attorney General James M. Cole Speaks at the AT&T/T-Mobile Press Conference

Washington, D.C. ~ Wednesday, August 31, 2011

[flv]http://www.phillipdampier.com/video/CNBC Cole Comments on Merger Opposition 8-31-11.flv[/flv]

Good morning.   Millions of Americans rely on mobile wireless telecommunications services in their everyday lives.   Whether you are a parent using a cell phone to check up on your teenager or a working professional using a laptop or smart phone to conduct business or surf the web, mobile wireless communications plays a vital – and increasing – role in our daily lives.

We all reap the benefits of this incredible technology because there has been fierce competition in this industry, which has brought all of us innovative and affordable products and services.

Cole

In order to ensure that competition remains and that everyone – including consumers, businesses and the government – continues to receive high quality, competitively priced mobile wireless products and services, the Department of Justice today filed an antitrust lawsuit in U.S. District Court in Washington, D.C. to block AT&T’s acquisition of T-Mobile.

The Department filed its lawsuit because we believe the combination of AT&T and T-Mobile would result in tens of millions of consumers all across the United States facing higher prices, fewer choices and lower quality products for their mobile wireless services.

Consumers across the country, including those in rural areas and those with lower incomes, have benefitted from competition among the nation’s wireless carriers, particularly the four remaining national carriers.   This lawsuit seeks to ensure that everyone can continue to reap the benefits of that competition.

Right now, four nationwide providers account for more than 90 percent of the mobile wireless connections in America, and preserving competition among them is crucial.   For instance, AT&T and T-Mobile currently compete head-to-head in 97 of the nation’s largest 100 cellular marketing areas.   They also compete nationwide to attract business and government customers.   Were the merger to proceed, there would only be three providers with 90 percent of the market, and competition among the remaining competitors on all dimensions—including price, quality, and innovation—would be diminished.

As can be seen in the Department’s complaint, AT&T felt competitive pressure from T-Mobile.   One example cites an AT&T employee observing that “[T-Mobile] was first to have HSPA+ devices in their portfolio…we added them in reaction to potential loss of speed claims.”

So as you can see, a merged AT&T and T-Mobile would combine two of the four largest competitors in the marketplace, and would eliminate T-Mobile, an aggressive competitor, from the market.

Although there has been a leadership change in the Antitrust Division, one thing has not changed – the Division will remain steadfast in its mission to vigorously enforce the antitrust laws.

And that’s what the Department has done today.   The leadership transition has been seamless and the right decision was reached in this case.

We are seeking to block this deal in order to maintain a vibrant and competitive marketplace that allows everyone to benefit from lower prices and better quality and innovative products.

I want to express my own deep gratitude for the efforts of so many members of the Antitrust Division staff who have tremendous expertise in this important industry.   And Sharis, I want to thank you for your leadership in this effort.   You and your team have done the right thing for consumers.

And now, Acting Assistant Attorney General Sharis Pozen will say a few words.

 

Acting Assistant Attorney General Sharis A. Pozen Speaks at the AT&T/T-Mobile Press Conference

Washington, D.C. ~ Wednesday, August 31, 2011

Thank you, Jim.   And thank you for your leadership and support on this case.

As the Deputy Attorney General mentioned, this is an extremely vital industry with more than 300 million feature phones, smart phones, data cards, tablets, and other mobile wireless devices in service today.   As you are well aware, the Department of Justice has significant experience in this industry going as far back as the original breakup of AT&T.   We know this industry well—inside and out.

Here, the Antitrust Division conducted an exhaustive investigation.   We conducted dozens of interviews of customers and competitors, and we reviewed more than 1 million AT&T and T-Mobile documents.   The conclusion we reached was clear.   Any way you look at this transaction, it is anticompetitive.   Our action today seeks to ensure that our nation enjoys the competitive wireless industry it deserves.

Sharis (Courtesy: Main Justice)

T-Mobile has been an important source of competition among the national carriers through innovation and quality enhancements.   For example, T-Mobile rolled-out the first nationwide high-speed data network using advanced HSPA+ technology and the first handset using the Android operating system.   It has also been an important source of price competition in the industry.   Unless this merger is blocked, competition and innovation in the mobile wireless market, in the form of low prices and innovative wireless handsets, operating systems, and calling plans, will be diminished—and consumers will suffer.

T-Mobile competes with the other three national providers to attract individual consumers, businesses, and government customers for mobile wireless telecommunications services. They compete on price, plan structure, network coverage, quality, speed, devices, and operating systems.   A combination of AT&T and T-Mobile would eliminate this price competition and innovation.   It would reduce the number of nationwide competitors in the marketplace from four to three.   Eliminating this aggressive competitor, which offers low pricing and innovative products, would hurt consumers, businesses, and government customers that rely on a competitive marketplace to provide them with the best products at the best possible price.

It is important to move expeditiously to preserve the lower prices and innovation resulting from T-Mobile’s competitive presence in this market.   That’s why we filed a lawsuit to block this transaction—our goal is to preserve price competition and innovation in this important industry.

I want to thank the Division’s Deputies for their expertise and counsel.   And I want to especially recognize the Telecommunications staff led by Chief Laury Bobbish and the many others in the Division for their tireless work on this important matter.   Consumers and businesses around the country owe you a great deal of thanks.   We also want to thank our partners in law enforcement, including the Federal Communications Commission and the state Attorneys General who have assisted and partnered with us in our investigation.

The U.S. government has filed a lawsuit to block a $39 billion dollar merger deal between AT&T and T-Mobile USA, citing substantially reduced competition for American cell phone customers.

“AT&T’s elimination of T-Mobile as an independent, low-priced rival would remove a significant competitive force from the market,” the Justice Dept. said in its filing.

“We are seeking to block this deal in order to maintain a vibrant and competitive marketplace that allows everyone to benefit from lower prices and better quality and innovative products,” said James M. Cole, deputy attorney general.

News that the merger could be ultimately blocked by the Justice Department caused AT&T and T-Mobile shares to lose as much as seven percent of their value.  But shares of competitor Sprint, considered the most vulnerable remaining competitor to AT&T and Verizon Wireless are soaring this morning by more than seven percent.

Cole’s statement was harsh in its condemnation of the merger’s benefits touted by AT&T:

The Department filed its lawsuit because we believe the combination of AT&T and T-Mobile would result in tens of millions of consumers all across the United States facing higher prices, fewer choices and lower quality products for their mobile wireless services.

Consumers across the country, including those in rural areas and those with lower incomes, have benefitted from competition among the nation’s wireless carriers, particularly the four remaining national carriers.   This lawsuit seeks to ensure that everyone can continue to reap the benefits of that competition.

Right now, four nationwide providers account for more than 90 percent of the mobile wireless connections in America, and preserving competition among them is crucial.   For instance, AT&T and T-Mobile currently compete head-to-head in 97 of the nation’s largest 100 cellular marketing areas.   They also compete nationwide to attract business and government customers.   Were the merger to proceed, there would only be three providers with 90 percent of the market, and competition among the remaining competitors on all dimensions—including price, quality, and innovation—would be diminished.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/Bloomberg Justice Targets ATT T-Mobile Merger 8-31-11.flv[/flv]

Bloomberg News delivered the breaking news that the Department of Justice would oppose the merger of AT&T and T-Mobile on antitrust grounds.  (2 minutes)

The deal falling through would cost AT&T a $3 billion dollar failed deal breakup fee, and a parting gift of wireless spectrum to T-Mobile USA, a unit of Deutsche Telekom AG.

Observers suggest part of the reason for the rejection may have been an attempt by the Obama Administration to draw a line in the sand for the size of large mergers and acquisitions it will tolerate.  The antitrust division of the Dept. of Justice has recently become more aggressive in reviewing large corporate merger transactions, and had the Administration approved the deal between AT&T and T-Mobile, the acceptance of permitting two companies to control the majority of wireless customers would have arguably meant virtually any merger deal would have passed muster, regardless of the implications of concentrated market share.

Traditionally, opposition from the Dept. of Justice spells doom for most merger proposals.  But AT&T is no ordinary corporate entity.  In addition to being confident enough to agree to a $3 billion breakup fee and giving away valuable spectrum should the deal fail, AT&T’s lobbying efforts and legal budget are unparalleled, and the company may decide to fight to preserve the deal using political and legal channels.  The terms of the merger could also be renegotiated, agreeing to spin off more customers to reduce market share, or compromising on consumer protections or other givebacks.

But for most companies, opposition from the government’s antitrust division is a high hurdle to overcome, and many won’t even try.

[flv]http://www.phillipdampier.com/video/CNBC Justice Blocks ATT T-Mobile 8-31-11.flv[/flv]

CNBC delivered the stunned reaction among its own anchors and telecommunications industry analysts about the Justice Department’s strong objections to the proposed merger.  Many on Wall Street predicted this was a ‘done deal.’  (12 minutes)

Should AT&T and T-Mobile abort the deal, that doesn’t necessarily guarantee Americans will still have four major carriers to choose from.  Deutsche Telekom maintains a strong interest in selling off T-Mobile USA, and has reduced investment in the company.  That could renew rumors of a merger deal between T-Mobile and Sprint.

AT&T executives as late as this morning seemed to have no advance warning of the Justice Department’s decision.  CEO Randall Stephenson spent much of his morning suggesting AT&T would hire thousands of call center workers as a result of the merger.

After learning of the impending lawsuit, AT&T released a statement: “We are surprised and disappointed by today’s action, particularly since we have met repeatedly with the Department of Justice and there was no indication from the DOJ that this action was being contemplated,” the statement said. “The DOJ has the burden of proving alleged anti-competitive affects and we intend to vigorously contest this matter in court.”

[flv]http://www.phillipdampier.com/video/CNBC Justice Press Conference on Blocking Merger 8-31-11.flv[/flv]

CNBC reporters and analysts react to the impact the Justice Department’s objections are having on the entire telecommunications business sector.  The question now being pondered at AT&T: Will it fight for the deal or will it fold?  (5 minutes)

On September 13, most PBS stations will premiere a new documentary, “Bill McGowan, Long Distance Warrior” exploring the many trials and tribulations of MCI Corporation, the long distance and e-mail provider that was instrumental in breaking up Ma Bell’s monopoly in telephone service.

[flv width=”512″ height=”308″]http://www.phillipdampier.com/video/Long Distance Warrior.flv[/flv]

A preview of PBS’ Long Distance Warrior, which premieres on most PBS stations Sept. 13  (3 minutes)

For those under 30, “MCI” may not mean much.  The company that helped pioneer competitive long distance calling was absorbed into the Worldcom empire in 1997, where it continued to provide service until a major corporate accounting scandal brought Worldcom down in 2002.  Most of what was left was eventually sold to Verizon Communications in 2005.

Remarkably, Microwave Communications, Inc. (MCI) was founded all the way back in 1963, but not as a provider of telephone services.  That MCI sought to build a network of microwave relay stations between Chicago and St. Louis to provide uninterrupted two-way radio service for some of the nation’s largest trucking and shipping companies.

The Bell System

By the late 1960s, William G. McGowan, an investor and venture capitalist from New York won a seat on MCI’s board of directors and part ownership of a newly-envisioned version of MCI — one that would provide businesses with a range of telecommunications products, including long distance telephone connections.  With many American corporations maintaining branch and regional offices, connecting them together was a potentially very lucrative business, especially if MCI could deliver the service at prices cheaper than what the monopoly Bell System was charging.

With their microwave relay network, now expanding across the country, MCI could distribute long distance phone calls cheaply and efficiently, if they could find a way to connect that network to Bell’s local phone system.  After all, it does little good to offer long distance service if you cannot connect calls to the businesses’ existing telephone equipment.

That’s where AT&T and its Bell Operating Companies objected.  For them, only calls originating on and delivered over their own network should be allowed.  MCI, as an interloper, was seeking to use the network AT&T built and paid for.  It’s an argument that has echoed more than 30 years later, when AT&T’s then-CEO Ed Whitacre objected to outside Internet content providers “using AT&T’s pipes for free.”

[flv]http://www.phillipdampier.com/video/MCI First 20 Years.mp4[/flv]

On the occasion of MCI’s 20th anniversary, the company produced this retrospective exploring the difficult times competing with AT&T and the Bell System.  (9 minutes)

MCI's best argument: AT&T's long distance bills

McGowan confronted arguments from AT&T executives who warned that competitive long distance would destroy the business model of America’s Bell System, which provided affordable local phone service to all 50 states, in part subsidized by long distance telephone rates, mostly paid by its commercial customers.  Tamper with that, they warned, and local phone bills would be forced to soar to make up the difference.

MCI called that argument a scare tactic, and suggested instead that AT&T’s monopoly had grown inefficient, bloated, expensive, and resistant to innovation and change.  MCI could deliver a substantially less expensive service and would force AT&T to increase its own efficiency to compete.  AT&T wasn’t interested in that argument and sued, repeatedly, to keep MCI out of its business.

By 1984, federal courts declared AT&T a monopoly worthy of a break-up, and opened the door to MCI’s long distance network.  By that time, MCI was already thinking about evolving itself beyond a business long distance provider, whose network was largely idle after business hours.  Because most Americans were accustomed to making long distance calls at night when rates were substantially lower, MCI developed new residential long distance service plans that encouraged customers to use that idle network at night and on weekends.

[flv width=”640″ height=”447″]http://www.phillipdampier.com/video/crying_mother.f4v[/flv]

One of MCI’s most memorable ads features a sobbing mother who reached out and touched her son over long distance a little too much.  (1 minute)

Thus began more than a decade of heavy advertising and competition for the long distance telephone market.  With equal access rules in place, consumers could choose their own long distance phone company and shop for the one with the lowest rates.  Competitors like Sprint, WilTel, LDDS, RCI, LCI, and yes, even AT&T all pitched their own calling plans.

MCI also pioneered MCI Mail, one of the first commercial electronic mail systems.  The original concept had businesses typing letters on a computer terminal, printed on standard paper at an MCI office closest to the destination, and then mailed in an envelope through the U.S. Post Office.  This poor-man’s version of a telex or telegram worked for businesses that wanted overnight delivery, but not at the prices charged by shippers like Federal Express.  In larger cities, MCI Mail could offer businesses delivery of their electronic communications within four hours, something closer to a traditional telegram of days gone-by.

MCI Mail’s hard copy deliveries wouldn’t last long, of course.  As the 1980s progressed, the fax machine and the more familiar all-electronic e-mail we think of today became firmly established.  As MCI Mail became less relevant, the company innovated into offering low priced telex services, mass-faxing, and data backhaul services to provide connectivity for online networks.

[flv width=”504″ height=”400″]http://www.phillipdampier.com/video/WIBW MCI Mail 1984.flv[/flv]

WIBW explores a new concept in communications — something called ‘electronic mail,’ a service that bewildered consumers in the early 1980s.  This report from 1984.  (2 minutes)

Bill McGowan: Would not approve of AT&T's plans to restore the glory days of the past.

AT&T, in contrast, was still getting over the loss of its local Bell Operating Companies — the regional phone companies most Americans did business with, and the loss of revenue earned from renting telephone equipment.  For years, AT&T long distance was branded as a quality leader, not a price leader.  It maintained its enormous market share partly through consumer indifference — customers who did not initially choose a new long distance carrier remained with AT&T, the default choice.

It took only about a decade after the Bell break-up for telecom industry lobbyists to begin advocating for enough deregulation to allow many of those former Baby Bells to re-combine through mergers and acquisitions.  The result is today’s AT&T, formed from its long distance unit, BellSouth, Illinois Bell, Indiana Bell, Michigan Bell, Nevada Bell, Ohio Bell, Pacific Bell, Southwestern Bell, Wisconsin Bell, and Southern New England Telephone.  Its largest competitor is Verizon Communications, which itself resulted from a combination of Bell Atlantic, NYNEX, GTE, and what was left of MCI after Worldcom was through with it.

McGowan’s fight was a personally costly one.  A workaholic, McGowan routinely put in 15 hour work days and drank up to 20 cups of coffee daily.  His heart finally had enough and McGowan succumbed to a heart attack in 1992 at age 64.  But he leaves a legacy and two decades of fighting to break up AT&T’s monopoly, which he always believed was bad for consumers and business (unless you were AT&T, of course).  That’s an important message as AT&T strengthens its resolve to acquire one of its significant competitors in the profitable wireless market — T-Mobile.  McGowan would have never approved.

[flv]http://www.phillipdampier.com/video/KCSM San Mateo Electronic Mail 6-18-87.mp4[/flv]

“The Computer Chronicles,” a production of KCSM-TV, spent a half hour in June 1987 showing off electronic e-mail service from MCI and how consumers and businesses using something called a “modem” could connect their home computers with online databases and services to exchange information and communications back and forth.  And for those business travelers on the road, away from their office computers, Speech Plus offered a product that could still keep you “connected,” by reading your e-mail to you over the phone.  In 1987, outside of commercial pay networks like CompuServe, Delphi, PeopleLink and QuantumLink, most Americans with modems used them to connect to typically-free hobbyist-run computer bulletin board systems.  Widespread access to “the Internet” would take another 5-6 years.  (29 minutes)

Thanks to a divided 5-4 decision by the U.S. Supreme Court, customers trying to seek relief from unilateral fees and surcharges suddenly showing up on their Verizon cell phone bills will have to pursue individual arbitration claims with the cell phone company instead of joining forces in a class arbitration claim.

That Supreme Court case, AT&T Mobility v. Concepcion, is turning out to benefit Verizon Wireless as much as AT&T, because the Supreme Court found merit in contracts obligating customers to seek individual arbitration to settle differences while forbidding customers from pursuing organized legal action.

Now the 3rd U.S. Circuit Court of Appeals in Philadelphia has reversed an earlier ruling, reinstating a 2008 decision by U.S. District Judge Freda Wolfson that delivered victory to Verizon Wireless.

At issue was Verizon’s decision in October 2005 to unilaterally impose an “administrative fee” of $0.40 and/or $0.70, as part of the monthly charges for each Verizon cell phone line.  Customers upset with the new fees felt they violated the principle that, as part of their two year contracts, Verizon would deliver a fixed-price service.  The cell phone company has since implemented a variety of fees and surcharges on customers that are pocketed by Verizon, regardless of the contract price.

All Verizon Wireless customers are obligated by contract to challenge any terms and conditions they disagree with through an arbitrator of Verizon’s choosing, at a place also chosen by the company.  That means Verizon could place an arbitrator on retention in a city potentially thousands of miles away, and demand the customer make their case there, to an arbitrator whose livelihood ultimately depends on retainer fees paid by the company.  Few consumers would make such a journey to protest a fee that amounts to less than $10 a year per line.

Lawyers Keith Litman and Robert Wachtel, representing Verizon customers, decided to try a different approach — a class action arbitration.  The two attorneys would represent potentially millions of impacted customers themselves, making any travel cost concerns incidental, and providing a seasoned challenge before arbitrators, who would also hear counter-arguments from Verizon’s own legal team.

Verizon’s attorneys argued such class action arbitration was specifically forbidden in the company’s contract with customers.  Normally, a judge might decide at that point a customer agreeing to those terms and conditions was effectively up the creek.  But a series of legal challenges in circuit courts opened the door to invalidating those terms.

Litman and Wachtel argued that because the New Jersey Supreme Court, in Muhammad v. County Bank of Rehoboth Beach, Del. (2006), has held that an arbitration provision in a consumer contract that precludes class arbitration of low-value claims is unconscionable under New Jersey law, similarly, the arbitration provision in Verizon’s contract is also unenforceable.

Unfortunately for the two attorneys representing consumers, the decision by the U.S. Supreme Court effectively overrode that case, leaving Verizon on top with Judge Wolfson’s 2008 decision.

Wolfson

Wolfson’s written ruling on the case seemed unimpressed with claims that Verizon’s fees were unconscionable:

In this case, Plaintiffs are customers who chose Verizon as their wireless provider at least four years ago and continue to use Verizon today. They signed the customer Agreement with the arbitration clause and agreed to subsequent terms of service as added by Verizon. Plaintiffs do not allege that they did not understand the Agreement that they voluntarily entered into nor do they allege fraud or misrepresentation. The parties agreed “to settle [their] disputes . . . only by arbitration,” and the “agreement doesn’t permit class arbitration.” Therefore, [federal law] requires this Court to uphold the arbitration provision within Plaintiffs’ service Agreement.

But Judge Wolfson did recognize the effective impact of her decision:

“The Court recognizes the many hardships visited upon plaintiffs, such as in this case, based upon this ruling. First, it creates the opportunity for a different result depending on whether the case is brought in federal or state court. Second, it is also clear that compelling individual arbitration in this case will be tantamount to ending the Plaintiffs’ pursuit of their claims, as there is very little possibility that these Plaintiffs or any other plaintiff will pursue individual arbitration for claims that amount only to several dollars in damages. While this outcome is harsh, this Court is bound by Third Circuit precedent.”

Lately, Verizon Wireless customers have been seeking other forms of relief when Verizon unilaterally changes or implements new fees or surcharges.  Many are invoking the “materially adverse” clause found in Verizon’s terms and conditions, which theoretically allows customers to exit their contracts penalty-free if they do not agree to the changes Verizon is imposing on customers.  Verizon Wireless appears to be increasingly aggressive in fighting these claims, too, refusing to allow customers to leave without stiff early termination fees.  That may become the subject of another lawsuit at some point in the future.

The telecommunications industry better not take a tip from some Texas power companies that have found new ways to increase profits: charging customers a penalty when they do not use enough electricity during the month.  Imagine if broadband providers with Internet Overcharging schemes followed suit.

After Texas deregulated electric utilities, an increasing number of companies are using their freedom to find new, creative ways to tack on additional fees and surcharges that might normally be considered the cost of doing business.

CenterPoint Energy, a Fortune 500 corporation providing service in Arkansas, Louisiana, Minnesota, Mississippi, Oklahoma, and Texas would like to introduce you to its Minimum Usage Penalty — a $9.95 fee applied to Texans caught using too little electricity from the company.

While most utility companies set a basic customer charge applicable to everyone, which covers the cost of your electric meter, power lines and their upkeep, billing, and other administrative expenses, many Texas power companies are billing consumers a monthly fee for conserving too much electricity.

The concept flies in the face of common sense, especially as the state contends with dozens of 100+ degree summer days and pleas from utilities for customers to cut back on energy use.  But if some do, especially low-consumption customers in apartments or those who maintain part-time residences, they’ll pay a penalty for doing so.

The Texas Electricity Ratings Blog found more than a dozen power companies with similar policies, with penalties as high as $12.96 for using less than 1,000 kWh per month:

Ambit Energy: $9.99 for less than 1000 kWh per month
Amigo Energy: Depending on the plan it is $9.95 of $6.95 for less than 1000 kWh per month
Bounce Energy: $4.95 for less than 1000 kWh per month for almost all of their plans, except intro plans are $6.96 per month for less than 1000 kWh.
Champion Energy: $4.95 for less than 500 kWh per month
Cirro Energy: $5.25 for less than 1000 kWh per month
Direct Energy: I couldn’t find a Monthly Fee in their Terms of Service or EFLs
Dynowatt: $6.95 for less than 1000 kWh per month
First Choice Power: $5 for less than 650 kWh per month, plus a $4.95 base charge
GEXA Energy: Seems to simply use a sliding rate per plan for different usage w/o a minimum charge
Green Mountain Energy: Didn’t seem to see any minimum usage charge in the EFL or Terms of Service
Mega Energy: $12.96 for less than 1000 kWh per month
MX Energy: Seems to simply use a sliding rate per plan for different usage w/o minimum charge
Reliant Energy: $9.95 for less than 800 kWh per month
Southwest Power & Light: I didn’t see minimum usage but they had a $7.95 monthly meter fee.
Spark Energy: $8.99 for less than 1000 kWh per month
StarTex Power: $4.99 for less than 500 kWh per month
Tara Energy: $6.95 for less than 500 kWh per month
Texas Power: $10.00 for less than 1000 kWh per month
TXU Energy: TXU uses a base $4.95 charge and sliding rates for less or greater than 1000 kWh, per plan.

[flv width=”600″ height=”358″]http://www.phillipdampier.com/video/KTRK Houston Higher Bills for Not Using Enough 7-11.flv[/flv]

KTRK in Houston provides surprising information about Texas utility usage-based-billing rates — power companies will charge you a penalty for not consuming enough electricity.  Better hope broadband providers angling for UBB don’t catch on.  (3 minutes)